81 FR 26517 - Rules of Practice and Procedure; Presentation of Evidence in Commission Proceedings
FEDERAL MARITIME COMMISSION Federal Register Volume 81, Issue 85 (May 3, 2016)
Federal Register Volume 81, Issue 85 (May 3, 2016)
| Page Range | 26517-26525 | |
| FR Document | 2016-09759 |
[Federal Register Volume 81, Number 85 (Tuesday, May 3, 2016)] [Proposed Rules] [Pages 26517-26525] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-09759] ======================================================================= ----------------------------------------------------------------------- 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: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Federal Maritime Commission is proposing to reorganize several subparts of its Rules of Practice and Procedure and revise its rules regarding presentation of evidence in Commission proceedings. DATES: Submit comments on or before July 5, 2016. ADDRESSES: You may submit comments, identified by the docket number in the heading of this document, by any of the following methods:Email: secretary@fmc.gov. Include in the subject line: ``Docket No. 16-08, Commenter/Company Name.'' Comments should be attached to the email as a Microsoft Word or text-searchable PDF document. 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 or comments received, go to: http://www.fmc.gov/16-08. FOR FURTHER INFORMATION CONTACT: Karen V. Gregory, 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 proposing to update or reorganize several subparts of 46 CFR part 502, its Rules of Practice and Procedure, and to substantively revise the subpart regarding how hearings are conducted to improve guidance concerning the presentation of evidence in Commission proceedings. Certain current rules would also be removed to clarify current practice and eliminate duplication. 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 proposes to 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: ------------------------------------------------------------------------ Proposed New 46 CFR Current 46 CFR part 502 part 502 Revisions ------------------------------------------------------------------------ Subpart A, General .................... Redesignate Sec. Information. 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 and Investigations. 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 and Orders to Show regroup rules Cause. within both subparts. Subpart J, Hearings; Subpart L, Revise several Presiding Officers; Presentation of sections and Evidence. Evidence. relocate all (see Table below). Subpart K, Shortened Subpart K [Reserved] Remove subpart K in Procedure. its entirety. Subpart L, Disclosures and Subpart J, Relocate and Discovery. Disclosures and redesignate all Discovery. rules to subpart J. Subpart M, Briefs; Requests Subpart M; Relocate Sec. for Findings; Decisions; Decisions, Appeals, 502.153, remove Exceptions. Exceptions. Sec. 502.222 and retitle. ------------------------------------------------------------------------ Subpart A In subpart A several cross references would be corrected and current Sec. 502.141 that establishes the Commission may hold hearings that are not part of an adjudicatory process, would be 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'' would apply only to adjudications of private complaints and Commission investigations and would be renamed ``Private Complaints and Commission Investigations.'' Revised subpart E would contain the procedures for institution of those proceedings, motions practice, opportunity for settlement, and other related rules. Section 502.61 which opens the subpart would be revised by moving and amending a rule on notice of hearings from subpart J. Subpart F Current subpart F addresses Settlement and Prehearing Procedure. Inasmuch as those subject areas are part of the process in adjudicatory proceedings, they would be divided and moved into subpart E and a revised subpart L governing presentation of evidence. Subpart F would be 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 proposed rules are intended to be easier for the user to locate. Revised subpart F would encompass current Sec. Sec. 502.73 through 502.77. Subparts J, and L The Commission proposes changes to subpart J, ``Hearings; Presiding Officers; Evidence'', and subpart L, ``Disclosure and Discovery'' to more logically and chronologically group the processes [[Page 26518]] conducted in a formal adjudication. Subpart L, Disclosure and Discovery would be moved in its entirety to subpart J. Current subpart J, Hearings, would be revised to encompass all rules governing the presentation of evidence and presented in revised subpart L titled ``Presentation of Evidence.'' The proposed revisions to subpart J are discussed more extensively below. Subpart K The Commission proposes to remove and reserve subpart K, ``Shortened Procedure.'' Shortened procedure 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 proposes to revise 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 would be moved into revised subpart L, ``Presentation of Evidence.'' However, rules governing briefs to accompany exceptions will remain in subpart M. Current Sec. 502.153, Appeal from ruling of presiding officer other than orders or dismissal in whole or in part, would be moved into subpart M as it concerns an appeal. ------------------------------------------------------------------------ Subpart M current section Proposed new section Revisions ------------------------------------------------------------------------ Sec. 502.221, Briefs; Subpart L, Sec. Revised for clarity. requests for findings. 502.214, Briefs. Sec. 502.222, Requests for Subpart L, Sec. Revised for clarity. enlargement of time for 502.215. filing briefs. Sec. Sec. 502.223 through Text unchanged...... .................... 502.229. Sec. 502.230, Reopening by Sec. 502.230, Rule concerning presiding officer or Reopening by supplementing Commission. Commission. evidence prior to an initial decision would 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. The Commission proposes that these rules governing presentation of evidence be revised and presented in revised subpart L. The proposed 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 would be removed in their entirety to eliminate duplication and reflect current practice. The proposed revisions to subpart J are enumerated in the table below: ------------------------------------------------------------------------ Proposed new subpart Subpart J current section L Revisions ------------------------------------------------------------------------ Sec. 502.141, Hearings not Move to subpart A... Does not pertain to required by statute. adjudicatory hearings. Sec. 502.142, Hearings Sec. 502.201, Revised to define required by statute. Applicability and ``hearing''. Scope. Sec. 502.143, Notice of Moved to Sec. .................... nature of hearing, 502.61(c), jurisdiction and issues. Proceedings. Sec. 502.144, Notice of Sec. 502.211...... Regroup with other time 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 Remove.............. Within presiding evidence required by officer's authority presiding officer during to regulate a hearing. hearing in Sec. 502.25(b)(3). Sec. 502.151, Exceptions Sec. 502.212...... Regroup with other to rulings of presiding rules pertaining officer unnecessary. only to oral hearings. Sec. 502.152, Offer of Sec. 502.204(b)... Moved because Proof. related to admissibility. Sec. 502.153, Appeal from Subpart M, Sec. Revised and moved to ruling of presiding officer 502.221. subpart M as it other than orders of concerns an appeal. dismissal in whole or in part. Sec. 502.154, Rights of Sec. 502.202...... Revised to mirror parties as to presentation APA. of evidence. Sec. 502.155, Burden of Sec. 502.203...... Revised for clarity. proof. Sec. 502.156, Evidence Sec. 502.204...... Revised to clarity. admissible. Sec. 502.157, Written Removed............. Within presiding evidence. officer's authority to regulate a hearing in Sec. 502.25(b)(3). Sec. 502.158, Documents Removed............. Within presiding containing matter not officer's authority material. to regulate a hearing in Sec. 502.25(b)(3). Sec. 502.159 [Reserved]... .................... Sec. 502.160, Records in Sec. 502.205...... .................... other proceedings. Sec. 502.161, Commission's Sec. 502.206, Revised for clarity. files. Incorporation by reference. Sec. 502.162, Stipulations Sec. 502.207...... Revised for clarity. [[Page 26519]] Sec. 502.163, Receipt of Removed............. Covered by proposed documents after hearing. Sec. 502.216, Supplementing the record. Sec. 502.164, Oral Removed............. Within presiding argument at 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 Sec. 502.213...... .................... of 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 Removed............. Covered by proposed data or evidence. Sec. 502.212. Sec. 502.169, Record of Sec. 502.217...... Revised for clarity. decision. ------------------------------------------------------------------------ Following is a more detailed description of each proposed rule that would appear in revised subpart L. Proposed Sec. 502.201, Applicability and Scope Proposed 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 would be 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. Proposed Sec. 502.202, Rights of Parties as to Presentation of Evidence Proposed Sec. 502.202 is derived and moved from current Sec. 502.154 but would be 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. Proposed Sec. 502.203, Burden of Proof Proposed 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. Proposed Sec. 502.204, Evidence Admissible Currently 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.'' The proposed revision would simplify the standard. Proposed Sec. 502.204 would revise Sec. 502.156 by restating the Administrative Procedure Act (APA) standard for admissibility that allows admission of all evidence which is relevant, material, reliable, and probative, and not unduly repetitious or cumulative, and by stating that the Presiding Officer may also look to the Federal Rules of Evidence (FRE) for guidance. The Commission is particularly interested to receive comment from the public on this particular revision and the applicability of the Federal Rules of Evidence. 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 stated that the FRE could be of great use to the Commission's 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 (September 24, 1975). The Commission went on to assert that, as a general matter, the FRE did not appear to be inconsistent with the APA. Id. In the years since the Commission promulgated this section, however, it has been generally acknowledged that there are, in fact, meaningful distinctions between the FRE and the APA. Specifically, the FRE are exclusionary in nature and were designed for jury trials in order to allow a presiding officer to determine what evidence a body of lay jurors should consider. See, e.g., Richard J. Pierce, Jr., 2 Admin. Law Treatise 909, Section 10, Evidence, 5th Ed. (2010). The APA, on the other hand, is founded on the principle that the presiding officer who is the decision maker is qualified to determine what evidence is relevant, probative and substantial. The inconsistences between the FRE and APA standards were evidently not apparent to the Commission when it adopted the language in Sec. 502.156 in 1976. The rulemaking notices and the regulatory text reflect the assumption that both the APA and FRE could be applied in most circumstances without issue. 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., et al--Possible Violations, 31 S.R.R. 540, 547 (FMC 2008) (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 section's attempt to apply both standards simultaneously creates a tension in the regulation and could be confusing to parties. 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 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 tentatively concluded that the FRE can be useful as a guide for litigants and presiding officers. Accordingly, the Commission is proposing to explicitly provide that presiding officers may look to the FRE for guidance when determining the admissibility of evidence. 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 [[Page 26520]] logical part of the rule governing admissibility of evidence. Proposed Sec. Sec. 502.205 and 502.206, Documents Incorporated Into the Record by Reference Revising current Sec. 502.160 (proposed Sec. 502.205) allows documents in another Commission proceeding to be incorporated into the record by reference. Proposed Sec. 502.206 would allow material in any document on file with the Commission that is also available to the public to be incorporated into the record by reference. Proposed Sec. 502.207, Stipulations Current Sec. 502.162 allows for stipulation. The Commission proposes to move the rule to Sec. 502.207 and to revise the language of that rule for clarity. Proposed Sec. 502.208, Objection to Public Disclosure of Information Proposed Sec. 502.208 would revise current Sec. 502.167, Objection to public disclosure of information. The proposed change would add 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 (March 19, 2015). Proposed Sec. Sec. 502.209 and 502.210, Prehearing Conference and Statements Current Sec. Sec. 502.94 and 502.95 would be moved from subpart E as they pertain to hearings. No substantive revisions would be made to the content of these rules. Proposed Sec. Sec. 502.211 Through 502.213, Oral Hearings Proposed Sec. Sec. 502.211 through 502.213 would deal with oral hearings and would 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 is proposing to include in the new Sec. 502.213 only the relevant requirements and to delete the aforementioned references to FACA and OMB's interpretation. Proposed Sec. Sec. 502.214 and 502.215, Briefs Sections 502.221 and 502.222 concerning briefs would be 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, would be removed as setting time is within the powers of the presiding officer as established in recently revised Sec. 502.25. Section 502.221(c) would be 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. Proposed Sec. 502.216, Supplementing the Record Current Sec. 502.230(a), Motion to Reopen, would be renumbered, renamed and revised to provide instructions concerning submission of evidence after final presentations in a proceeding and prior to issuance of an initial decision. The language of the proposed rule and the proposed 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 would be moved to subpart L and the reference to ``filing and motions'' instead of ``paper and requests.'' 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 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 to part 502, these amendments concern the Commission's 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 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 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 [[Page 26521]] Commission proposes to amend 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''. 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] 0 12. Redesignate Sec. Sec. 502.73 through 502.77 as Sec. Sec. 502.91 through 502.95, respectively, and place them under 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 [[Page 26522]] 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 heading, ``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, place it under 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] 0 24. Redesignate Sec. Sec. 502.201 through 502.210 as Sec. Sec. 502.141 through 502.150, respectively, and place them under 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. 502.203(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 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. [[Page 26523]] 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. 554, 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 look to 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 documentary evidence or reference to documents or records, the evidence 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 such portion must be presented for the record in the form of an exhibit unless the presiding officer accepts the parties' stipulation that such portion may be incorporated by reference. [Rule 205.] 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 petition for 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 may call the parties together for an informal conference prior to the taking of testimony, or may recess the hearing for such a conference, with a view to carrying out the purposes of this section. (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 [[Page 26524]] 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 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 party applies for and properly shows 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 applying 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 [[Page 26525]] 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.] By the Commission. Karen V. Gregory, Secretary. [FR Doc. 2016-09759 Filed 5-2-16; 8:45 am] BILLING CODE 6731-AA-P
![Federal Register / Vol. 81, No. 85 / Tuesday, May 3, 2016 / Proposed Rules 26517
because it merely makes a SUMMARY: The Federal Maritime Maritime Commission, 800 North
determination based on air quality data. Commission is proposing to reorganize Capitol Street NW., Washington, DC
several subparts of its Rules of Practice 20573–0001, Phone: (202) 523–5725,
List of Subjects in 40 CFR Part 52
and Procedure and revise its rules Email: secretary@fmc.gov.
Environmental protection, Air regarding presentation of evidence in
pollution control, Incorporation by Commission proceedings. SUPPLEMENTARY INFORMATION: The
reference, Intergovernmental relations, Commission is proposing to update or
DATES: Submit comments on or before
Ozone, Reporting and recordkeeping reorganize several subparts of 46 CFR
July 5, 2016.
requirements. part 502, its Rules of Practice and
ADDRESSES: You may submit comments,
Authority: 42 U.S.C. 7401 et seq. Procedure, and to substantively revise
identified by the docket number in the the subpart regarding how hearings are
Dated: April 20, 2016. heading of this document, by any of the conducted to improve guidance
Heather McTeer Toney, following methods:
concerning the presentation of evidence
Regional Administrator, Region 4. • Email: secretary@fmc.gov. Include
in Commission proceedings. Certain
[FR Doc. 2016–10167 Filed 5–2–16; 8:45 am] in the subject line: ‘‘Docket No. 16–08,
Commenter/Company Name.’’ current rules would also be removed to
BILLING CODE 6560–50–P
Comments should be attached to the clarify current practice and eliminate
email as a Microsoft Word or text- duplication.
searchable PDF document. Comments Reorganization of Part 502
FEDERAL MARITIME COMMISSION
containing confidential information
46 CFR Part 502 should not be submitted by email. Part 502 sets out the rules governing
• Mail: Karen V. Gregory, Secretary, procedure in all types of Commission
[Docket No. 16–08] Federal Maritime Commission, 800 proceedings. However, after years of
RIN 3072–AC64 North Capitol Street NW., Washington, revisions, some users find the grouping
DC 20573–0001. and ordering of the subparts confusing.
Rules of Practice and Procedure; • Docket: For access to the docket to The Commission proposes to reorder
Presentation of Evidence in read background documents or and rename certain subparts to better
Commission Proceedings comments received, go to: http:// reflect the chronology of a typical
www.fmc.gov/16-08. adjudication, and to distinguish other
AGENCY: Federal Maritime Commission.
FOR FURTHER INFORMATION CONTACT: types of proceedings, as enumerated in
ACTION: Notice of proposed rulemaking.
Karen V. Gregory, Secretary, Federal this table:
Current 46 CFR part 502 Proposed New 46 CFR part 502 Revisions
Subpart A, General Information ......................... ...................................................................... Redesignate § 502.141 as § 502.14.
Subpart E, Proceedings; Pleadings; Motions; Subpart E, Private Complaints and Commis- Separate subpart E in to subparts E and F,
Replies. sion Investigations. relocate and regroup rules within both sub-
parts.
Subpart F, Settlement; Prehearing Procedure ... Subpart F, Petitions, Exemptions and Orders Separate subpart E in to subparts E and F,
to Show Cause. relocate and regroup rules within both sub-
parts.
Subpart J, Hearings; Presiding Officers; Evi- Subpart L, Presentation of Evidence ............... Revise several sections and relocate all (see
dence. Table below).
Subpart K, Shortened Procedure ....................... Subpart K [Reserved] ...................................... Remove subpart K in its entirety.
Subpart L, Disclosures and Discovery ............... Subpart J, Disclosures and Discovery ............. Relocate and redesignate all rules to subpart
J.
Subpart M, Briefs; Requests for Findings; Deci- Subpart M; Decisions, Appeals, Exceptions .... Relocate § 502.153, remove § 502.222 and
sions; Exceptions. retitle.
Subpart A Investigations.’’ Revised subpart E Subpart F would be revised to apply
In subpart A several cross references would contain the procedures for to proceedings other than private
would be corrected and current institution of those proceedings, complaints and Commission
§ 502.141 that establishes the motions practice, opportunity for investigations, titled: ‘‘Petitions,
Commission may hold hearings that are settlement, and other related rules. Exemptions, and Orders to Show
not part of an adjudicatory process, Section 502.61 which opens the subpart Cause.’’ These types of proceedings are
would be moved to this subpart as would be revised by moving and generally distinct from complaint and
general information and retitled. amending a rule on notice of hearings investigation proceedings. With clear
from subpart J. headings, the proposed rules are
Subpart D intended to be easier for the user to
Cross references are corrected in Subpart F locate. Revised subpart F would
asabaliauskas on DSK9F6TC42PROD with PROPOSALS
subpart D. encompass current §§ 502.73 through
Current subpart F addresses 502.77.
Subpart E Settlement and Prehearing Procedure.
Inasmuch as those subject areas are part Subparts J, and L
Subpart E, currently ‘‘Proceedings,
Pleading, Motions, Replies’’ would of the process in adjudicatory The Commission proposes changes to
apply only to adjudications of private proceedings, they would be divided and subpart J, ‘‘Hearings; Presiding Officers;
complaints and Commission moved into subpart E and a revised Evidence’’, and subpart L, ‘‘Disclosure
investigations and would be renamed subpart L governing presentation of and Discovery’’ to more logically and
‘‘Private Complaints and Commission evidence. chronologically group the processes
VerDate Sep<11>2014 22:30 May 02, 2016 Jkt 238001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 E:\FR\FM\03MYP1.SGM 03MYP1](https://thefederalregister.org/doc/81_FR_26602/page/1.svg)
![26518 Federal Register / Vol. 81, No. 85 / Tuesday, May 3, 2016 / Proposed Rules
conducted in a formal adjudication. practice (e.g. not requiring an oral to litigants seeking faster resolution of
Subpart L, Disclosure and Discovery hearing). The procedure has not resulted their disputes. The rules governing
would be moved in its entirety to in an ALJ decision in recent history, as small claims proceedings are designed
subpart J. Current subpart J, Hearings, the three proceedings utilizing to make the litigation process faster and
would be revised to encompass all rules shortened procedure since 1998 have simpler for litigants seeking reparations
governing the presentation of evidence resulted in settlement. The Commission of $50,000 or less.
and presented in revised subpart L titled has made several rule revisions in the
Subpart M
‘‘Presentation of Evidence.’’ The past five years that have enhanced the
proposed revisions to subpart J are efficiency of formal complaint The Commission proposes to revise
discussed more extensively below. proceedings including the requirement subpart M to cover only matters that
for initial disclosures in discovery, occur after conclusion of the parties’
Subpart K
(current § 502.201), and the presentations in proceedings (i.e.,
The Commission proposes to remove establishment of default rules in the decisions, appeals and exceptions). The
and reserve subpart K, ‘‘Shortened absence of an answer, § 502.62(b)(6). rules concerning briefs would be moved
Procedure.’’ Shortened procedure Shortened procedure rules are not into revised subpart L, ‘‘Presentation of
provides that, if the respondent consistent with the requirement for Evidence.’’ However, rules governing
consents, after briefing by the parties, initial disclosures, which help expedite briefs to accompany exceptions will
the record is closed and a decision may all proceedings. If parties want to remain in subpart M. Current § 502.153,
be issued without discovery or an oral further limit discovery, that is possible Appeal from ruling of presiding officer
hearing. The procedure has rarely been without the provisions of Subpart K. other than orders or dismissal in whole
requested, although parts of the Moreover the subparts S and T small or in part, would be moved into subpart
procedure have become standard claims proceedings may offer a solution M as it concerns an appeal.
Subpart M current section Proposed new section Revisions
§ 502.221, Briefs; requests for findings .............. Subpart L, § 502.214, Briefs ............................ Revised for clarity.
§ 502.222, Requests for enlargement of time for Subpart L, § 502.215 ........................................ Revised for clarity.
filing briefs.
§§ 502.223 through 502.229 .............................. Text unchanged ...............................................
§ 502.230, Reopening by presiding officer or § 502.230, Reopening by Commission ............ Rule concerning supplementing evidence prior
Commission. to an initial decision would be moved to
§ 502.216, Supplementing the record.
Subpart J, Hearings—Presentation of be revised and presented in revised clarify and simplify rules where
Evidence subpart L. The proposed revisions are possible. Several rules currently in the
Currently subpart J, Hearings, intended to reflect the procedures subpart would be removed in their
presents the Commission’s rules on currently used by the Commission, to entirety to eliminate duplication and
hearings and presentation of evidence. utilize current language and standards reflect current practice. The proposed
The Commission proposes that these set by the Federal Rules of Civil revisions to subpart J are enumerated in
rules governing presentation of evidence Procedure where appropriate, and to the table below:
Subpart J current section Proposed new subpart L Revisions
§ 502.141, Hearings not required by statute ...... Move to subpart A ........................................... Does not pertain to adjudicatory hearings.
§ 502.142, Hearings required by statute ............ § 502.201, Applicability and Scope .................. Revised to define ‘‘hearing’’.
§ 502.143, Notice of nature of hearing, jurisdic- Moved to § 502.61(c), Proceedings .................
tion and issues.
§ 502.144, Notice of time and place of hearing; § 502.211 .......................................................... Regroup with other rules pertaining only to
postponement of hearing. oral hearings.
§§ 502.145 through 502.149 [Reserved] ............
§ 502.150, Further evidence required by pre- Remove ............................................................ Within presiding officer’s authority to regulate
siding officer during hearing. a hearing in § 502.25(b)(3).
§ 502.151, Exceptions to rulings of presiding of- § 502.212 .......................................................... Regroup with other rules pertaining only to
ficer unnecessary. oral hearings.
§ 502.152, Offer of Proof .................................... § 502.204(b) ..................................................... Moved because related to admissibility.
§ 502.153, Appeal from ruling of presiding offi- Subpart M, § 502.221 ....................................... Revised and moved to subpart M as it con-
cer other than orders of dismissal in whole or cerns an appeal.
in part.
§ 502.154, Rights of parties as to presentation § 502.202 .......................................................... Revised to mirror APA.
of evidence.
asabaliauskas on DSK9F6TC42PROD with PROPOSALS
§ 502.155, Burden of proof ................................. § 502.203 .......................................................... Revised for clarity.
§ 502.156, Evidence admissible ......................... § 502.204 .......................................................... Revised to clarity.
§ 502.157, Written evidence ............................... Removed .......................................................... Within presiding officer’s authority to regulate
a hearing in § 502.25(b)(3).
§ 502.158, Documents containing matter not Removed .......................................................... Within presiding officer’s authority to regulate
material. a hearing in § 502.25(b)(3).
§ 502.159 [Reserved] .........................................
§ 502.160, Records in other proceedings .......... § 502.205 ..........................................................
§ 502.161, Commission’s files ............................ § 502.206, Incorporation by reference ............. Revised for clarity.
§ 502.162, Stipulations ....................................... § 502.207 .......................................................... Revised for clarity.
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Subpart J current section Proposed new subpart L Revisions
§ 502.163, Receipt of documents after hearing Removed .......................................................... Covered by proposed § 502.216,
Supplementing the record.
§ 502.164, Oral argument at hearing ................. Removed .......................................................... Within presiding officer’s authority to regulate
a hearing in § 502.25(b)(3).
§ 502.165, Official Transcript .............................. § 502.213 .......................................................... Revised and modernized.
§ 502.166, Correction of transcript ..................... § 502.213 ..........................................................
§ 502.167, Objection to public disclosure of in- § 502.208 .......................................................... Revised to cross reference § 502.5.
formation.
§ 502.168, Copies of data or evidence .............. Removed .......................................................... Covered by proposed § 502.212.
§ 502.169, Record of decision ............................ § 502.217 .......................................................... Revised for clarity.
Following is a more detailed comment from the public on this 547 (FMC 2008) (quoting Pacific
description of each proposed rule that particular revision and the applicability Champion Express Co., Ltd.—Possible
would appear in revised subpart L. of the Federal Rules of Evidence. Violations, 28 S.R.R. 1102, 1105–06
The Commission adopted the original (ALJ 1999). Given the divergence
Proposed § 502.201, Applicability and
language in § 502.156 in 1976, shortly between the FRE and APA standards,
Scope
after the FRE went into effect. 41 FR the section’s attempt to apply both
Proposed § 502.201 is derived and 20585, 20588 (May 19, 1976). In the standards simultaneously creates a
moved from current § 502.142 and sets 1975 notice proposing the language, the tension in the regulation and could be
out the proceedings for which the rules Commission stated that the FRE could confusing to parties.
in the subpart will apply. The term be of great use to the Commission’s ALJs In 1986, the Administrative
hearing would be defined as ‘‘a formal in disposing of evidentiary issues that Conference of the United States (ACUS)
adjudicatory proceeding in which arise in Commission proceedings, so published recommendations regarding
evidence is presented orally, or through long as they were consistent with the the use of the FRE in administrative
written statement, or by combination requirements of the APA. 40 FR 43295, proceedings. ACUS compared three
thereof’’ to reflect the broader and more 43927 (September 24, 1975). The general categories of agency evidentiary
inclusive meaning of the term in current Commission went on to assert that, as a rules. 1986 ACUS 6, 51 FR 25642. The
administrative practice. general matter, the FRE did not appear category that is most analogous to
Proposed § 502.202, Rights of Parties as to be inconsistent with the APA. Id. § 502.156 included ‘‘rules that require
to Presentation of Evidence In the years since the Commission presiding officers to apply the [FRE] ‘so
promulgated this section, however, it far as practicable.’ ’’ Id. ACUS identified
Proposed § 502.202 is derived and four significant disadvantages with
has been generally acknowledged that
moved from current § 502.154 but respect to this standard including:
there are, in fact, meaningful
would be revised to reflect that the
distinctions between the FRE and the (1) Courts seem confused as to what it
presiding officer may limit introduction
APA. Specifically, the FRE are means or how to enforce it; (2) instructing
of evidence if it is ‘‘irrelevant, presiding officers to exclude evidence based
exclusionary in nature and were
immaterial, or unduly repetitious’’ on the standard forces them to undertake a
designed for jury trials in order to allow
mirroring the Administrative Procedure difficult and hazardous task; (3) excluding
a presiding officer to determine what
Act. evidence on the basis that it is inadmissible
evidence a body of lay jurors should in a jury trial is totally unnecessary to insure
Proposed § 502.203, Burden of Proof consider. See, e.g., Richard J. Pierce, Jr., that agencies act only on the basis of reliable
Proposed § 502.203 is derived and 2 Admin. Law Treatise 909, Section 10, evidence; and (4) agencies, like other experts,
moved from current § 502.155 and Evidence, 5th Ed. (2010). The APA, on should be permitted to rely on classes of
clarifies the language to include the other hand, is founded on the evidence broader than those that can be
principle that the presiding officer who considered by lay jurors.
reference to motions for ease of
understanding the burden of proof. is the decision maker is qualified to Id. Accordingly, ACUS recommended
determine what evidence is relevant, that ‘‘Congress should not require
Proposed § 502.204, Evidence probative and substantial. agencies to apply the [FRE], with or
Admissible The inconsistences between the FRE without the qualification ‘so far as
Currently § 502.156 states ‘‘[u]nless and APA standards were evidently not practicable,’ to limit the discretion of
inconsistent with the requirements of apparent to the Commission when it presiding officers to admit evidence in
the Administrative Procedure Act and adopted the language in § 502.156 in formal adjudications.’’ Id. ACUS also
these Rules, the Federal Rules of 1976. The rulemaking notices and the recognized, however, the disadvantages
Evidence . . . will also be applicable.’’ regulatory text reflect the assumption of relying on the APA standard alone,
The proposed revision would simplify that both the APA and FRE could be and the Commission has tentatively
the standard. Proposed § 502.204 would applied in most circumstances without concluded that the FRE can be useful as
revise § 502.156 by restating the issue. Since promulgation of the section, a guide for litigants and presiding
Administrative Procedure Act (APA) however, the Commission ‘‘has officers. Accordingly, the Commission is
asabaliauskas on DSK9F6TC42PROD with PROPOSALS
standard for admissibility that allows recognized the liberal standards of proposing to explicitly provide that
admission of all evidence which is admissibility of evidence in presiding officers may look to the FRE
relevant, material, reliable, and administrative proceedings and has for guidance when determining the
probative, and not unduly repetitious or repeatedly ‘. . . identified the need for admissibility of evidence.
cumulative, and by stating that the considerable relaxation of the rules of The text of current § 502.152 has been
Presiding Officer may also look to the evidence followed by the federal courts modernized to clarify the procedures
Federal Rules of Evidence (FRE) for in proceedings before the governing when and how to make an
guidance. The Commission is Commission.’ ’’ Eurousa Shipping, Inc., offer of proof. The rule is moved into
particularly interested to receive et al—Possible Violations, 31 S.R.R. 540, revised § 502.204 as paragraph (b) as a
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![Federal Register / Vol. 81, No. 85 / Tuesday, May 3, 2016 / Proposed Rules 26521
Commission proposes to amend 46 CFR enforcement action under § 502.63), or a objection of any party in any hearing on
part 502 as follows: non-adjudicatory investigation upon the matter.
petition or on its own initiative by (d) As soon as practicable after the
PART 502—RULES OF PRACTICE AND issuing an appropriate order. commencement of any proceeding, the
PROCEDURE (c) Persons entitled to notice of presiding officer will direct the parties
hearings, except those notified by or their representatives to consider the
■ 1. The authority citation for part 502 complaint service under § 502.113, will use of alternative dispute resolution,
continues to read as follows: be duly and timely informed of the including but not limited to mediation,
Authority: 5 U.S.C. 504, 551, 552, 553, nature of the proceeding, the legal and may direct the parties or their
556(c), 559, 561–569, 571–596, 18 U.S.C. 207; authority and jurisdiction under which representatives to consult with the
28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. the proceeding is conducted, and the Federal Maritime Commission
305, 40103–40104, 40304, 40306, 40501– terms, substance, and issues involved, Alternative Dispute Resolution
40503, 40701–40706, 41101–41109, 41301– Specialist about the feasibility of
41309, 44101–44106; E.O. 11222 of May 8,
or the matters of fact and law asserted,
as the case may be. Such notice will be alternative dispute resolution.
1965.
published in the Federal Register unless (e) Any party may request that a
§ 502.5 [Amended] all persons subject thereto are named mediator or other neutral be appointed
■ 2. Amend § 502.5: and either are served or otherwise have to assist the parties in reaching a
■ a. In the introductory text, by notice thereof in accordance with law. settlement. If such a request or
removing the phrase ‘‘502.167, suggestion is made and is not opposed,
* * * * *
502.201(j)(1)(vii)’’ and adding in its the presiding officer will appoint a
place the phrase ‘‘502.141(j)(1)(vii), § 502.69 [Amended] mediator or other neutral who is
502.208’’, and by removing the reference ■ 9. Amend § 502.69(f) by removing acceptable to all parties, coordinating
‘‘§ 502.201(j)’’ and adding in its place ‘‘shortened procedure (subpart K of this with the Federal Maritime Commission
the reference ‘‘§ 502.141(j)’’; and part)’’ and removing the citation Alternative Dispute Resolution
■ b. In paragraph (b) by removing the ‘‘§ 502.221’’ and adding in its place the Specialist. The mediator or other neutral
reference ‘‘§ 502.201(j)(1)(vii)’’ and citation ‘‘§ 502.214’’. will convene and conduct one or more
adding in its place the reference mediation or other sessions with the
‘‘§ 502.141(j)(1)(vii)’’. Subpart F—Petitions, Exemptions, and parties and will inform the presiding
Orders To Show Cause officer, within the time prescribed by
§ 502.6 [Amended] the presiding officer, whether the
■ 10. Revise the subpart F heading to dispute resolution proceeding resulted
■ 3. Amend § 502.6(c) by removing the
read as set forth above. in a resolution or not, and may make
phrase ‘‘§ 502.203 or § 502.204’’ and
adding in its place the phrase §§ 502.91 through 502.95 [Removed] recommendations as to future
‘‘§ 502.143 or § 502.144’’. proceedings. If settlement is reached, it
■ 11. Remove §§ 502.91 through 502.95.
will be submitted to the presiding
§ 501.10 [Amended] §§ 502.73 through 502.77 [Redesignated as officer who will issue an appropriate
■ 4. Amend § 502.10 by removing the §§ 502.91 through 502.95] decision or ruling. All such dispute
reference ‘‘502.153’’ and adding in its ■ 12. Redesignate §§ 502.73 through resolution proceedings are subject to the
place the reference ‘‘502.221’’. 502.77 as §§ 502.91 through 502.95, provisions of subpart U of this part.
respectively, and place them under (f) Any party may request that a
Subpart D—Rulemaking subpart F. settlement judge be appointed to assist
the parties in reaching a settlement. If
§ 502.52 [Amended]
§§ 502.78 and 502.79 [Redesignated as such a request or suggestion is made
■ 5. Amend § 502.52 by removing the §§ 502.73 and 502.74] and is not opposed, the presiding officer
citation ‘‘§ 502.143’’ and adding in its ■ 13. Redesignate §§ 502.78 and 502.79 will advise the Chief Administrative
place the citation ‘‘§ 502.61(c)’’. as §§ 502.73 and 502.74, respectively, in Law Judge who may appoint a
§ 502.53 [Amended] subpart E. settlement judge who is acceptable to all
■ 14. Add a new § 502.75 to subpart E parties. The settlement judge will
■ 6. Amend § 502.53(a) by removing the
to read as follows: convene and preside over conferences
reference ‘‘subpart J’’ and adding in its
place the reference ‘‘subpart L’’. and settlement negotiations and will
§ 502.75 Opportunity for informal
report to the presiding officer within the
settlement.
Subpart E—Private Complaints and time prescribed by the Chief
(a) Parties are encouraged to make use Administrative Law Judge, on the
Commission Investigations of all the procedures of this part that are results of settlement discussions with
■ 7. Revise the subpart E heading to designed to simplify or avoid formal appropriate recommendations as to
read as set forth above. litigation, and to assist the parties in future proceedings. If settlement is
■ 8. Amend § 502.61 by removing the reaching settlements whenever it reached, it must be submitted to the
words ‘‘under normal or shortened appears that a particular procedure presiding officer who will issue an
procedures (subpart K)’’ and the last would be helpful. appropriate decision or ruling. [Rule
sentence from paragraph (a); (b) Where time, the nature of the
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75.]
redesignating paragraph (b) as paragraph proceeding, and the public interest ■ 15. Revise the newly redesignated
(d) and adding a new paragraph (b) and permit, all interested parties will have § 502.91 to read as follows:
paragraph (c) to read as follows: the opportunity for the submission and
consideration of facts, argument, offers § 502.91 Order to show cause.
§ 502.61 Proceedings. of settlement, or proposal of adjustment, The Commission may institute a
* * * * * without prejudice to the rights of the proceeding by order to show cause. The
(b) The Commission may commence a parties. order will be served upon all persons
proceeding for a rulemaking, for an (c) No settlement offer, or proposal named therein, will include the
adjudication (including Commission will be admissible in evidence over the information specified in § 502.221, will
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require the person named therein to adding in its place the citation § 502.149 [Amended]
answer, and may require such person to ‘‘§ 502.143(b)(5)(i)(A)’’; ■ 31. Amend newly redesignated
appear at a specified time and place and ■ f. In paragraph (c)(1) by removing the § 502.149:
present evidence upon the matters citation ‘‘§ 502.154’’ and adding in its ■ a. In paragraph (a)(1)(iii) by removing
specified. [Rule 91.] place the citation ‘‘§ 502.202’’ and by the citation ‘‘§ 502.209(a)(2) through
removing the citation ‘‘§ 502.203(b)(3)’’ (7)’’ and adding in its place the
Exhibit No. 1 to Subpart F of Part 502 and adding in its place the citation citation‘‘§ 502.149(a)(2) through (7)’’;
[Removed] ‘‘§ 502.143(b)(3)’’; ■ b. In paragraph (a)(2) by removing the
■ 16. Remove heading, ‘‘Exhibit No. 1 to ■ g. In paragraph (c)(2) by removing the citation ‘‘§ 502.156 of subpart J’’ and
Subpart F of Part 502’’. citation ‘‘§ 502.203(d)(2)’’ and adding in adding in its place the citation
its place the citation ‘‘§ 502.143(d)(2)’’; ‘‘§ 502.204 of subpart L’’;
Subpart H—Service of Documents ■ h. In paragraph (d)(1) by removing the ■ c. In paragraph (a)(3) by removing the
citation ‘‘§ 502.201(e)(2)’’ and adding in phrase ‘‘§ 502.203(b)(6) or
§ 502.114 [Amended] § 502.204(a)(4)’’ and adding in its place
its place the citation ‘‘§ 502.141(e)’’;
■ 17. Amend § 502.114(a) by removing the phrase ‘‘§ 502.143(b)(6) or
■ i. In paragraph (d)(2)(ii) by removing
the citation ‘‘§ 502.145’’ and adding in § 502.144(a)(4);
its place the citation ‘‘§ 502.131’’. the citation ‘‘§ 502.201(j)’’ and adding in
its place the citation ‘‘§ 502.141(j)’’; and ■ d. In paragraph (a)(7) by removing the
§ 502.118 [Removed] ■ j. In paragraph (e)(2) by removing the
citation ‘‘§ 502.156 of subpart J’’ and
citation ‘‘§ 502.203(f)(1)’’ and adding in adding in its place the citation
■ 18. Remove § 502.118.
its place the citation ‘‘§ 502.143(f)(1)’’. ‘‘§ 502.204 of subpart L’’;
Subpart I—Subpoenas ■ e. In paragraph (b) by removing the
§ 502.144 [Amended] phrase ‘‘§ 502.202(b) and
§ 502.132 [Amended] § 502.209(d)(3)’’ and adding in its place
■ 26. Amend newly redesignated
■ 19. Amend § 502.132(c) by removing § 502.144: the phrase ‘‘§ 502.142(b) and
the citation ‘‘§ 502.203’’ and adding in ■ a. In paragraph (a)(2)(i) by removing
§ 502.149(d)(3)’’; and
its place the citation ‘‘§ 502.143’’. ■ f. In paragraph (d)(3)(iii) by removing
the citation‘‘§ 502.203’’ and adding in
its place the citation ‘‘§ 502.143’’; the citation ‘‘§ 502.204’’ and adding in
§ 502.136 [Amended] its place the citation ‘‘§ 502.144’’.
■ 20. Amend § 502.136 by removing the ■ b. In paragraph (1)(4) by removing the
citation ‘‘§ 502.210(b)’’ and adding in its citation ‘‘§ 502.203(b)(6)’’ and adding in § 502.150 [Amended]
place the citation ‘‘§ 502.150(b)’’. its place the citation ‘‘§ 502.143(b)(6)’’. ■ 32. Amend newly redesignated
§ 502.145 [Amended] § 502.150(a)(1) by removing the citation
Subpart J—Disclosures and Discovery ‘‘§ 502.201’’ and adding in its place the
■ 27. Amend newly redesignated citation ‘‘§ 502.141’’ and by removing
■ 21. Revise the subpart J heading to § 502.145:
read as set forth above. the citation ‘‘§ 502.206’’ and adding in
■ a. In paragraph (a)(1) by removing the its place the citation ‘‘§ 502.146’’.
■ 22. Redesignate § 502.141 as § 502.14,
citation ‘‘§ 502.201(e)(2)’’ and adding in
place it under subpart A, and revise the
its place the citation ‘‘§ 502.141(e)(2)’’; §§ 502.151 through 502.169 [Removed and
section heading to read as follows: reserved]
■ b. In paragraph (a)(2) by removing the
§ 502.14 Public hearings. citation ‘‘§ 502.201(e) and (f)’’ and ■ 33. Remove and reserve §§ 502.151
* * * * * adding in its place the citation through 502.169.
‘‘§ 502.141(e) and (f)’’ ; and
§§ 502.142 through 502.150 [Removed] ■ c. In paragraph (b)(2) by removing the Subpart K [Removed and reserved]
■ 23. Remove §§ 502.142 through citation ‘‘§ 502.201(l)’’ and adding in its ■ 34. Remove and reserve subpart K,
502.150. place the citation ‘‘§ 502.141(l)’’. consisting of §§ 502.181 through
§§ 502.201 through 502.210 [Redesignated § 502.146 [Amended] 502.187.
as §§ 502.141 through 502.150] ■ 35. Revise subpart L to read as
■ 28. Amend newly redesignated follows:
■ 24. Redesignate §§ 502.201 through § 502.146:
502.210 as §§ 502.141 through 502.150,
■ a. In paragraph (a) by removing the Subpart L—Presentation of Evidence
respectively, and place them under
citation ‘‘§ 502.201(e) and (f)’’ and
subpart J. Sec.
adding in its place the citation
‘‘§ 502.141(e) and (f)’’; and 502.201 Applicability and scope.
§ 502.143 [Amended]
502.202 Right of parties to present
■ 25. Amend newly redesignated ■ b. In paragraph (b)(2) by removing the evidence.
§ 502.143: citation ‘‘§ 502.201(l)’’ and adding in its 502.203 Burden of proof.
■ a. In paragraph (a)(1) by removing the place the citation ‘‘§ 502.141(l)’’. 502.204 Evidence admissible.
citation ‘‘§ 502.203(a)(2)’’ and adding in 502.205 Records in other proceedings.
§ 502.147 [Amended] 502.206 Documents incorporated into the
its place the citation ‘‘§ 502.143(a)(2);
■ b. In paragraph (a)(2)(i) by removing ■ 29. Amend newly redesignated record by reference.
the citation ‘‘§ 502.204’’ and adding in § 502.147(a)(3) by removing the citation 502.207 Stipulations.
asabaliauskas on DSK9F6TC42PROD with PROPOSALS
its place the citation ‘‘§ 502.144’’; ‘‘§ 502.201(l)’’ and adding in its place 502.208 Objection to public disclosure of
■ c. In paragraph (b)(2) by removing the the citation ‘‘§ 502.141(l)’’. information.
502.209 Prehearing conference.
citation ‘‘§ 502.206’’ and adding in its 502.210 Prehearing statements.
§ 502.148 [Amended]
place the citation ‘‘§ 502.146’’; 502.211 Notice of time and place of oral
■ d. In paragraph (b)(5)(i) by removing ■ 30. Amend newly redesignated hearing; postponement of hearing.
the citation ‘‘§ 502.202’’ and adding in § 502.148(a) by removing the citation 502.212 Exceptions to rulings of presiding
its place the citation‘‘§ 502.142’’; ‘‘§§ 502.202 through 502.207’’ and officer unnecessary.
■ e. In paragraph (b)(5)(ii) by removing adding in its place the citation 502.213 Official transcript.
the citation ‘‘§ 502.203(b)(5)(i)(A)’’ and ‘‘§§ 502.142 through 502.147’’. 502.214 Briefs; requests for findings.
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502.215 Requests for enlargement of time discretion of the presiding officer, § 502.209 Prehearing conference.
for filing briefs. testimony of the witness. If the ruling (a)(1) Prior to any hearing, the
502.216 Supplementing the record. excludes documentary evidence or Commission or presiding officer may
502.217 Record of decision.
reference to documents or records, the direct all interested parties, by written
§ 502.201 Applicability and scope. evidence shall be marked for notice, to attend one or more prehearing
(a) The rules in this subpart apply to identification and will constitute the conferences for the purpose of
adjudicatory proceedings conducted offer of proof. [Rule 204.] considering any settlement under
under the statutes administered by the § 502.91, formulating the issues in the
§ 502.205 Records in other proceedings.
Commission involving matters which proceeding and determining other
require determination after notice and Portions of the record of other matters to aid in its disposition. In
opportunity for hearing. Adjudicatory proceedings may be received in addition to any offers of settlement or
proceedings are formal proceedings evidence. A true copy of such portion proposals of adjustment, the following
commenced upon the filing of a sworn must be presented for the record in the may be considered:
complaint or by Order of the form of an exhibit unless the presiding (i) Simplification of the issues;
Commission. Such proceedings will be officer accepts the parties’ stipulation (ii) The necessity or desirability of
conducted pursuant to the that such portion may be incorporated amendments to the pleadings;
Administrative Procedure Act, 5 U.S.C. by reference. [Rule 205.] (iii) The possibility of obtaining
554, and the rules in this subpart. admissions of fact and of documents
§ 502.206 Documents incorporated into that will avoid unnecessary proof;
(b) The term hearing means a formal the record by reference.
adjudicatory proceeding in which (iv) Limitation of the number of
evidence is presented orally, or through Any matter contained in a document witnesses;
written statements, or by combination on file with the Commission that is (v) The procedure to be used at the
thereof. The term oral hearing means a available to the public may be received hearing;
in evidence through incorporation by (vi) The distribution to the parties
hearing at which evidence is presented
reference without producing such prior to the hearing of written testimony
through oral testimony of a witness.
document, provided that the matter so and exhibits;
[Rule 201].
offered is specified in such manner as (vii) Consolidation of the examination
§ 502.202 Right of parties to present to be clearly identified, with sufficient of witnesses by counsel;
evidence. particularity, and readily located (viii) Such other matters as may aid in
Every party has the right to present its electronically. [Rule 206.] the disposition of the proceeding.
case or defense by oral or documentary (2) Prior to the hearing, the presiding
evidence, to submit rebuttal evidence, § 502.207 Stipulations. officer may require, exchange of exhibits
and to conduct such cross-examination The parties may, and are encouraged, and any other material that may
as may be required for a full and true to stipulate any facts involved in the expedite the hearing. The presiding
disclosure of the facts. The presiding proceeding and include them in the officer will assume the responsibility of
officer, however, has the right and duty record with the consent of the presiding accomplishing the purposes of the
to limit the introduction of evidence officer. A stipulation may be admitted notice of prehearing conference so far as
and the examination and cross- even if all parties do not agree, provided this may be possible without prejudice
examination of witnesses when, in his that any party who does not agree to the to the rights of any party.
or her judgment, such evidence or stipulation has the right to cross- (3) The presiding officer will rule
examination is irrelevant, immaterial, or examine and offer rebuttal evidence. upon all matters presented for decision,
unduly repetitious. [Rule 202.] [Rule 207.] orally upon the record when feasible, or
by subsequent ruling in writing. If a
§ 502.203 Burden of proof. § 502.208 Objection to public disclosure of party determines that a ruling made
In all cases governed by the information. orally does not cover fully the issue
requirements of the Administrative (a) If any party wishes to present presented, or is unclear, such party may
Procedure Act, 5 U.S.C. 556(d), the confidential information or upon petition for a further ruling within ten
burden of proof is on the proponent of objection to public disclosure of any (10) days after receipt of the transcript.
the motion or the order. [Rule 203.] information sought to be elicited, the (b) In any proceeding under the rules
requirements and procedures in § 502.5 in this part, the presiding officer may
§ 502.204 Evidence admissible. call the parties together for an informal
will apply.
(a) In any proceeding under the rules conference prior to the taking of
in this part and in accordance with the (b) In an oral hearing, the presiding
testimony, or may recess the hearing for
Administrative Procedure Act, all officer may in his or her discretion order
such a conference, with a view to
evidence which is relevant, material, that a witness will disclose such
carrying out the purposes of this
reliable and probative, and not unduly information only in the presence of the
section.
repetitious or cumulative, will be parties and those designated and
(c) At any prehearing conference,
admissible. All other evidence will be authorized by the presiding officer. Any
consideration may be given to whether
excluded. The Presiding Officer may transcript of such testimony will be held
the use of alternative dispute resolution
look to the Federal Rules of Evidence for confidential to the extent the presiding
would be appropriate or useful for the
asabaliauskas on DSK9F6TC42PROD with PROPOSALS
guidance. officer determines. Copies of transcripts
disposition of the proceeding whether
(b) A party who objects to a ruling of will be served only to authorized parties
or not there has been previous
the presiding officer rejecting or or their representatives or other parties
consideration of such use. [Rule 209.]
excluding proffered evidence may make as the presiding officer may designate.
an offer of proof. If the ruling excludes (c) Any information given pursuant to § 502.210 Prehearing statements.
proffered oral testimony, an offer of this section may be used by the (a) Unless a waiver is granted by the
proof may consist of a statement by presiding officer or the Commission if presiding officer, it is the duty of all
counsel of the substance of the evidence deemed necessary to a correct decision parties to a proceeding to prepare a
that would be adduced, or in the in the proceeding. [Rule 208.] statement or statements at a time and in
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![26524 Federal Register / Vol. 81, No. 85 / Tuesday, May 3, 2016 / Proposed Rules
the manner to be established by the has been issued may be changed when powers of the presiding officer, as
presiding officer provided that there has warranted. Reasonable notice will be defined in § 502.25(a).
been reasonable opportunity for given to the parties or their (c) Motions made at the hearing to
discovery. To the extent possible, joint representatives of the time and place of correct the transcript will be acted upon
statements should be prepared. the change thereof, due regard being had by the presiding officer. Motions made
(b) The prehearing statement must for the public interest and the after an oral hearing to correct the
state the name of the party or parties on convenience and necessity of the parties record must be filed with the presiding
whose behalf it is presented and briefly or their representatives. Notice may be officer within twenty-five (25) days after
set forth the following matters, unless served by mail, facsimile transmission, the last day of hearing or any session
otherwise ordered by the presiding or electronic mail. thereof, unless otherwise directed by the
officer: (b) Motions for postponement of any presiding officer, and must be served on
(1) Issues involved in the proceeding. hearing date must be filed in accordance all parties. If no objections are received
(2) Facts stipulated pursuant to the with § 502.104. [Rule 211.] within ten (10) days after date of
procedures together with a statement service, the transcript will, upon
that the party or parties have § 502.212 Exceptions to rulings of approval of the presiding officer, be
communicated or conferred in a good presiding officer unnecessary. changed to reflect such corrections. If
faith effort to reach stipulation to the A formal exception to a ruling or objections are received, the motion will
fullest extent possible. order is unnecessary. When the ruling be acted upon with due consideration of
(3) Facts in dispute. or order is requested or made, the party the stenographic record of the hearing.
(4) Witnesses and exhibits by which doing so need only state the action that [Rule 213.]
disputed facts will be litigated. it wants the presiding officer to take or
(5) A brief statement of applicable that it objects to, along with the grounds § 502.214 Briefs; requests for findings.
law. for the request or objection. Failing to (a) The presiding officer will
(6) The conclusion to be drawn. object does not prejudice a party who determine the time and manner of filing
(7) Suggested time and location of had no opportunity to do so when the briefs and any enlargement of time.
hearing and estimated time required for ruling or order was made. [Rule 212.] (b) Briefs will be served upon all
presentation of the party’s or parties’ parties pursuant to subpart H of this
case. § 502.213 Official transcript. part.
(8) Any appropriate comments, (a) The Commission will designate the (c) Unless otherwise ordered by the
suggestions, or information which might official reporter for all hearings. The presiding officer, opening or initial
assist the parties in preparing for the official transcript of testimony taken, briefs must contain the following
hearing or otherwise aid in the together with any exhibits and any matters in separately captioned sections:
disposition of the proceeding. briefs or memoranda of law filed (1) Introductory section describing the
(c) The presiding officer may, for good therewith, will be filed with the nature and background of the case;
cause shown, permit a party to Commission. Transcripts of testimony (2) Proposed findings of fact in
introduce facts or argue points of law will be available in any proceeding serially numbered paragraphs with
outside the scope of the facts and law under the rules in this part, at actual reference to exhibit numbers and pages
outlined in the prehearing statement. cost of duplication. of the transcript;
Failure to file a prehearing statement, (3) Argument based upon principles
(b)(1) Where the Commission does not
unless waiver has been granted by the of law with appropriate citations of the
request daily copy service, any party
presiding officer, may result in authorities relied upon; and
requesting such service must bear the
dismissal of a party from the (4) Conclusions.
incremental cost of transcription above
proceeding, dismissal of a complaint, (d) All briefs must contain a subject
the regular copy transcription cost borne
judgment against respondents, or index or table of contents with page
by the Commission, in addition to the
imposition of such other sanctions as references and a list of authorities cited.
actual cost of duplication. Where the
may be appropriate under the (e) All briefs filed pursuant to this
party applies for and properly shows
circumstances. section must ordinarily be limited to
that the furnishing of daily copy is
(d) Following the submission of eighty (80) pages in length, exclusive of
indispensable to the protection of a vital
prehearing statements, the presiding pages containing the table of contents,
right or interest in achieving a fair
officer may, upon motion or otherwise, table of authorities, and certificate of
hearing, the presiding officer in the
convene a prehearing conference for the service, unless the presiding officer
proceeding in which the application is
purpose of further narrowing issues and allows the parties to exceed this limit
made will order that daily copy service
limiting the scope of the hearing if, in for good cause shown and upon
be provided the applying party at the
his or her opinion, the prehearing application filed not later than seven (7)
actual cost of duplication, with the full
statements indicate lack of dispute of days before the time fixed for filing of
cost of transcription being borne by the
material fact not previously such a brief or reply. [Rule 214.]
Commission.
acknowledged by the parties or lack of
legitimate need for cross-examination (2) In the event a request for daily § 502.215 Requests for enlargement of
and is authorized to issue appropriate copy is denied by the presiding officer, time for filing briefs.
orders consistent with the purposes the requesting party, in order to obtain Requests for enlargement of time to
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stated in this section. [Rule 210.] daily copy, must pay the cost of file briefs must conform to the
transcription over and above that borne requirements of § 502.102. [Rule 215.]
§ 502.211 Notice of time and place of oral by the Commission, i.e., the incremental
hearing; postponement of hearing. cost between that paid by the § 502.216 Supplementing the record.
(a) The notice of an oral hearing will Commission when it requests regular A motion to supplement the record,
designate the time and place the person copy and when it requests daily copy. pursuant to § 502.69, should be filed if
or persons who will preside, and the The decision of the presiding officer in submission of evidence is desired after
type of decision to be issued. The date this situation is interpreted as falling the parties’ presentation in a
or place of a hearing for which notice within the scope of the functions and proceeding, but before issuance by the
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![Federal Register / Vol. 81, No. 85 / Tuesday, May 3, 2016 / Proposed Rules 26525
presiding officer of an initial decision. (b) Any party seeking to appeal must officer, or in a matter otherwise pending
[Rule 216.] file a motion for leave to appeal no later before the Commission, but before
than fifteen (15) days after written issuance of a Commission decision, the
§ 502.217 Record of decision. service or oral notice of the ruling in Commission may, after petition and
The transcript of testimony and question, unless the presiding officer, reply in conformity with paragraphs (b)
exhibits, together with all filings and for good cause shown, enlarges or and (c) of this section, or upon its own
motions filed in the proceeding, will shortens the time. Any such motion motion, reopen a proceeding for the
constitute the exclusive record for must contain the grounds for leave to purpose of taking further evidence.
decision. [Rule 217.] appeal and the appeal itself. (b) Motion to reopen. A motion to
(c) Replies to the motion for leave to
reopen shall be served in conformity
Subpart M—Decisions; Appeals; appeal and the appeal may be filed
with the requirements of subpart H and
Exceptions within fifteen (15) days after date of
will set forth the grounds requiring
service thereof, unless the presiding
36. Revise the subpart M heading to reopening of the proceeding, including
■ officer, for good cause shown, enlarges
read as set forth above. material changes of fact or law alleged
or shortens the time. If the motion is
to have occurred.
■ 37. Revise § 502.221 to read as granted, the presiding officer must
follows: certify the appeal to the Commission. (c) Reply. Within ten (10) days
(d) Unless otherwise provided, the following service of a motion to reopen,
§ 502.221 Appeal from ruling of presiding certification of the appeal will not any party may reply to such motion.
officer other than orders of dismissal in operate as a stay of the proceeding (d) Remand by the Commission.
whole or in part. before the presiding officer. Nothing contained in this rule precludes
(a) Rulings of the presiding officer (e) The provisions of § 502.10 do not the Commission from remanding a
may not be appealed prior to or during apply to this section. [Rule 221.] proceeding to the presiding officer for
the course of the hearing, or subsequent § 502.222 [Removed and reserved] the taking of addition evidence or
thereto, if the proceeding is still before ■ 38. Remove and reserve § 502.222. determining points of law. [Rule 230.]
him or her, except where the presiding ■ 39. Revise § 502.230 to read as By the Commission.
officer finds it necessary to allow an follows: Karen V. Gregory,
appeal to the Commission to prevent
substantial delay, expense, or detriment § 502.230 Reopening by Commission. Secretary.
to the public interest, or undue (a) Reopening by the Commission. [FR Doc. 2016–09759 Filed 5–2–16; 8:45 am]
prejudice to a party. After an initial decision by the presiding BILLING CODE 6731–AA–P
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Document Created: 2016-05-03 00:30:13
Document Modified: 2016-05-03 00:30:13
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Submit comments on or before July 5, 2016. | |
| Contact | Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001, Phone: (202) 523-5725, Email: [email protected] | |
| FR Citation | 81 FR 26517 | |
| RIN Number | 3072-AC64 | |
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