81 FR 93831 - Rules of Practice and Procedure; Presentation of Evidence in Commission Proceedings
FEDERAL MARITIME COMMISSION Federal Register Volume 81, Issue 246 (December 22, 2016)
Federal Register Volume 81, Issue 246 (December 22, 2016)
| Page Range | 93831-93840 | |
| FR Document | 2016-30745 |
[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)] [Rules and Regulations] [Pages 93831-93840] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-30745] ======================================================================= ----------------------------------------------------------------------- FEDERAL MARITIME COMMISSION 46 CFR Part 502 [Docket No. 16-08] RIN 3072-AC64 Rules of Practice and Procedure; Presentation of Evidence in Commission Proceedings AGENCY: Federal Maritime Commission. ACTION: Final rule ----------------------------------------------------------------------- SUMMARY: The Federal Maritime Commission is reorganizing several subparts of its Rules of Practice and Procedure and revising its rules regarding presentation of evidence in Commission proceedings. DATES: Effective January 27, 2016. FOR FURTHER INFORMATION CONTACT: Rachel E. Dickon, Assistant Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001. Phone: (202) 523-5725. Email: [email protected]. SUPPLEMENTARY INFORMATION: The Commission is updating or reorganizing several subparts of 46 CFR part 502, its Rules of Practice and Procedure, and substantively revising the subpart regarding how hearings are conducted to improve guidance concerning the presentation of evidence in Commission proceedings. Certain current rules are also removed to clarify current practice and eliminate duplication. On May 3, 2016, the Commission issued a Notice of Proposed Rulemaking (NPRM) seeking public comment on the proposed amendments. 81 FR 26517. The Commission received one comment in response to the NPRM from the American Association of Port Authorities (AAPA) that addressed proposed Sec. 502.204, revising and renumbering Sec. 502.156. Current Sec. 502.156 states ``[u]nless inconsistent with the requirements of the Administrative Procedure Act and these Rules, the Federal Rules of Evidence . . . will also be applicable.'' As explained in the NPRM, the proposed revision is intended to simplify the language in the rule by restating the liberal Administrative Procedure Act (APA) standard for admissibility and also to provide that the presiding officer may continue to look to the Federal Rules of Evidence (FRE) for guidance. The Commission adopted the original language in Sec. 502.156 in 1976, shortly after the FRE went into effect. 41 FR 20585, 20588 (May 19, 1976). In the 1975 notice proposing the language the Commission asserted that, as a general matter, the FRE did not appear to be inconsistent with the APA and that the FRE could be of great use to the Commission's administrative law judges (ALJs) in disposing of evidentiary issues that arise in Commission proceedings, so long as they were consistent with the requirements of the APA. 40 FR 43295, 43927 (Sep. 24, 1975). Since promulgation of the section, however, the Commission ``has recognized the liberal standards of admissibility of evidence in administrative proceedings and has repeatedly `. . . identified the need for considerable relaxation of the rules of evidence followed by the federal courts in proceedings before the Commission.' '' EuroUSA Shipping, Inc., Tober Group, Inc.--Possible Violations, 31 S.R.R. 540, 547 (FMC 2008) (hereinafter Tober) (quoting Pacific Champion Express Co., Ltd.--Possible Violations, 28 S.R.R. 1102, 1105-06 (ALJ 1999)). Given the divergence between the FRE and APA standards, the current section's attempt to apply both standards simultaneously creates a tension in the regulation and could be confusing to parties. Accordingly, the Commission is now explicitly providing that presiding officers may look to the FRE for guidance when determining the admissibility of evidence. The AAPA notes that current rule Sec. 502.156, states that the FRE ``will be applicable'' to Commission proceedings ``unless inconsistent with'' the requirements of the APA whereas the proposed language provides that the presiding officer ``may look to the FRE for guidance.'' The AAPA inquires whether such a change is intended to loosen the admissibility standard in cases before the Commission, and if so, to what to degree. The new rule does not loosen the admissibility standards, but rather clarifies, based on Commission and judicial precedent, that the standard of admissibility is governed by the APA, not the FRE. While the presiding officer may consider the FRE for guidance, they are neither controlling nor binding. In response to the AAPA's expressed concern that the revised language suggests a change in the presiding officer's discretion, we clarify the final rule by replacing the language ``look to the FRE for guidance'' with the language ``consider the FRE for guidance'' as it better reflects the discretion of the presiding officer. The Commission recently addressed the utility of applying the FRE in proceedings before it in Tober. Pointing to its own precedent, the Commission noted that it has long recognized the liberal standards of admissibility of evidence in administrative proceedings and the need for considerable relaxation of the rules of evidence followed by the federal courts in proceedings before the Commission. Applying those standards to the ALJ's exclusion of certain exhibits on the basis of the FRE, the Commission held that challenged exhibits were admissible under the APA standard and that ``to the extent that the Commission's rules and the APA diverge from the FRE, the FRE are not controlling and the Commission is not bound by their requirements.'' Id., 549. The AAPA also states that the proposed rule could impact motions for summary judgment. It noted that in federal court, a party opposing a motion on the grounds that there are material facts in genuine dispute must show that there is admissible evidence on its side of the asserted dispute. The AAPA appears to be concerned that a loosening of the standard may limit the utility of summary judgment motions. The Commission addressed the admissibility of evidence in the context of motions for summary judgment in Tober. Citing the Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), the Commission stated: ``While the nonmoving party is to show facts that present a genuine issue worthy of trial, the nonmoving party at the summary judgment stage is not required to produce evidence in a form that would be admissible at trial.'' Id., 31 S.R.R. at 549 (emphasis added). Thus, the Commission made clear that at the summary judgment stage, the nonmoving party only needs to show facts that present a genuine issue worthy of trial. Id. This standard is applied to ensure that doubts are resolved in favor of the nonmoving party. As the Commission noted, it has denied summary judgment even when the nonmovant has not submitted any [[Page 93832]] evidence, as well as when evidence has been deemed to be incomplete. Id., 546. In short, there is no requirement in the federal courts or at the Commission that the party opposing a motion for summary judgment present evidence that would be admissible at trial or hearing. To the extent that the question of admissibility might arise at the summary judgment stage, the proposed rule does not change existing standards but simply continues application of the liberal standard mandated by the APA. The AAPA also expresses concern that making reliance on the FRE discretionary may create discrepancies in the decisions of Presiding Officers, either because a Presiding Officer may choose to follow the FRE in one case but choose not to follow it in another, or because different Presiding Officers may apply different standards. The revised rule does not create new or different standards. There is only one standard as provided in the APA, i.e., ``all evidence which is relevant, material, reliable and probative, and not unduly repetitious or cumulative, shall be admissible.'' 46 CFR 502.156; 5 U.S.C. 556(d). The FRE will continue to be available to the presiding officer as a resource for guidance in determining admissibility of evidence under the APA standard. Any legal inconsistency in decisions on the admissibility of evidence will be subject to review by the Commission under the APA standard as in Tober. Finally, the AAPA expressed concern that the Presiding Officer may perceive that the revised rule does not accord discretion to exclude evidence considered unreliable. Both the current and revised language are governed however by the same standard set forth in the APA. The APA standard of admissibility has been the governing standard since this regulation was originally adopted in 1965. Since incorporation into the existing regulation in 1976, the FRE have always been subservient to the liberal APA standard. The revised language in the proposed rule adheres to this standard as required by the APA, while recognizing the usefulness of the FRE for guidance. In 1986, the Administrative Conference of the United States (ACUS) published recommendations regarding the use of the FRE in administrative proceedings. ACUS compared three general categories of agency evidentiary rules. 1986 ACUS 6, 51 FR 25642. The category that is most analogous to current Sec. 502.156 included ``rules that require presiding officers to apply the [FRE] `so far as practicable.''' Id. ACUS identified four significant disadvantages with respect to this standard including: (1) Courts seem confused as to what it means or how to enforce it; (2) instructing presiding officers to exclude evidence based on the standard forces them to undertake a difficult and hazardous task; (3) excluding evidence on the basis that it is inadmissible in a jury trial is totally unnecessary to insure that agencies act only on the basis of reliable evidence; and (4) agencies, like other experts, should be permitted to rely on classes of evidence broader than those that can be considered by lay jurors. Id. Accordingly, ACUS recommended that ``Congress should not require agencies to apply the [FRE], with or without the qualification `so far as practicable,' to limit the discretion of presiding officers to admit evidence in formal adjudications.'' Id. ACUS also recognized, however, the disadvantages of relying on the APA standard alone, and the Commission has concluded that the FRE can be useful as a guide for litigants and presiding officers. Reorganization of Part 502 Part 502 sets out the rules governing procedure in all types of Commission proceedings. However, after years of revisions, some users find the grouping and ordering of the subparts confusing. The Commission will reorder and rename certain subparts to better reflect the chronology of a typical adjudication, and to distinguish other types of proceedings, as enumerated in this table: ------------------------------------------------------------------------ New 46 CFR part Current 46 CFR part 502 502 Revisions ------------------------------------------------------------------------ Subpart A, General Information.. .................. Redesignate Sec. 502.141 as Sec. 502.14. Subpart E, Proceedings; Subpart E, Private Separate subpart E Pleadings; Motions; Replies. Complaints and in to subparts E Commission and F, relocate Investigations. and regroup rules within both subparts. Subpart F, Settlement; Subpart F, Separate subpart E Prehearing Procedure. Petitions, in to subparts E Exemptions and and F, relocate Orders to Show and regroup rules Cause. within both subparts. Subpart J, Hearings; Presiding Subpart L, Revise several Officers; Evidence. Presentation of sections and Evidence. relocate all (see Table below). Subpart K, Shortened Procedure.. Subpart K Remove subpart K [Reserved]. in its entirety. Subpart L, Disclosures and Subpart J, Relocate and Discovery. Disclosures and redesignate all Discovery. rules to subpart J. Subpart M, Briefs; Requests for Subpart M; Relocate Sec. Findings; Decisions; Exceptions. Decisions, 502.153, remove Appeals, Sec. 502.222 Exceptions. and retitle. ------------------------------------------------------------------------ Subpart A In subpart A, several cross references are corrected and current Sec. 502.141 which establishes that the Commission may hold hearings that are not part of an adjudicatory process, is moved to this subpart as general information and retitled. Subpart D Cross references are corrected in subpart D. Subpart E Subpart E, currently ``Proceedings, Pleading, Motions, Replies'' is renamed ``Private Complaints and Commission Investigations.'' Revised subpart E contains the procedures for institution of those proceedings, motions practice, opportunity for settlement, and other related rules. Section 502.61 which opens the subpart is revised by moving and amending a rule on notice of hearings from subpart J. Section 502.91 which deals with informal settlements is being moved to subpart E in order to clarify chronologically when informal settlement is most likely to occur. This change is not intended to limit the applicability of the section which would apply in any proceeding, including the proceedings described in subpart F. Subpart F Current subpart F addresses Settlement and Prehearing Procedure. Inasmuch as those subject areas are part of the process in adjudicatory proceedings, they are divided and moved into subpart E and a revised [[Page 93833]] subpart L governing presentation of evidence. Subpart F is revised to apply to proceedings other than private complaints and Commission investigations, titled: ``Petitions, Exemptions, and Orders to Show Cause.'' These types of proceedings are generally distinct from complaint and investigation proceedings. With clear headings, the new rules are intended to be easier for the user to locate. Revised subpart F encompasses current Sec. Sec. 502.73 through 502.77. Subparts J, and L The Commission is changing subpart J, ``Hearings; Presiding Officers; Evidence'', and subpart L, ``Disclosure and Discovery'' to more logically and chronologically group the processes conducted in a formal adjudication. Subpart L, Disclosure and Discovery is moved in its entirety to subpart J. Current subpart J, Hearings, is revised to encompass all rules governing the presentation of evidence and presented in revised subpart L titled ``Presentation of Evidence.'' The revisions to subpart J are discussed more extensively below. Subpart K The Commission is removing and reserving subpart K, ``Shortened Procedure.'' Shortened Procedure regulations provides that, if the respondent consents, after briefing by the parties, the record is closed and a decision may be issued without discovery or an oral hearing. The procedure has rarely been requested, although parts of the procedure have become standard practice (e.g., not requiring an oral hearing). The procedure has not resulted in an ALJ decision in recent history, as the three proceedings utilizing shortened procedure since 1998 have resulted in settlement. The Commission has made several rule revisions in the past five years that have enhanced the efficiency of formal complaint proceedings including the requirement for initial disclosures in discovery, (current Sec. 502.201), and the establishment of default rules in the absence of an answer, Sec. 502.62(b)(6). Shortened procedure rules are not consistent with the requirement for initial disclosures, which help expedite all proceedings. If parties want to further limit discovery, that is possible without the provisions of subpart K. Moreover, the subparts S and T small claims proceedings may offer a solution to litigants seeking faster resolution of their disputes. The rules governing small claims proceedings are designed to make the litigation process faster and simpler for litigants seeking reparations of $50,000 or less. Subpart M The Commission revises subpart M to cover only matters that occur after conclusion of the parties' presentations in proceedings (i.e., decisions, appeals and exceptions). The rules concerning briefs are moved into revised subpart L, ``Presentation of Evidence.'' However, rules governing briefs to accompany exceptions will remain in subpart M. Current Sec. 502.153, Appeals from ruling of presiding officer other than orders of dismissal in whole or in part are moved into subpart M, as it concerns an appeal. ------------------------------------------------------------------------ Subpart M current section New section Revisions ------------------------------------------------------------------------ Sec. 502.221, Briefs; requests Subpart L, Sec. Revised for for findings. 502.214, Briefs. clarity. Sec. 502.222, Requests for Subpart L, Sec. Revised for enlargement of time for filing 502.215. clarity. briefs. Sec. Sec. 502.223 through Text unchanged. 502.229. Sec. 502.230, Reopening by Sec. 502.230, Rule concerning presiding officer or Commission. Reopening by supplementing Commission. evidence prior to an initial decision will be moved to Sec. 502.216, Supplementing the record. ------------------------------------------------------------------------ Subpart J, Hearings--Presentation of Evidence Currently subpart J, Hearings, presents the Commission's rules on hearings and presentation of evidence. These rules governing presentation of evidence are revised and presented in revised subpart L. The revisions are intended to reflect the procedures currently used by the Commission, to utilize current language and standards set by the Federal Rules of Civil Procedure where appropriate, and to clarify and simplify rules where possible. Several rules currently in the subpart will be removed in their entirety to eliminate duplication and reflect current practice. The revisions to subpart J are enumerated in the table below: ------------------------------------------------------------------------ Subpart J current section New Subpart L Revisions ------------------------------------------------------------------------ Sec. 502.141, Hearings not Move to subpart A. Does not pertain required by statute. to adjudicatory hearings. Sec. 502.142, Hearings Sec. 502.201, Revised to define required by statute. Applicability and ``hearing''. Scope. Sec. 502.143, Notice of nature Moved to Sec. .................. of hearing, jurisdiction and 502.61(c), issues. Proceedings. Sec. 502.144, Notice of time Sec. 502.211.... Regroup with other and place of hearing; rules pertaining postponement of hearing. only to oral hearings. Sec. Sec. 502.145 through 502.149 [Reserved]. Sec. 502.150, Further evidence Remove............ Within presiding required by presiding officer officer's during hearing. authority to regulate a hearing in Sec. 502.25(b)(3). Sec. 502.151, Exceptions to Sec. 502.212.... Regroup with other rulings of presiding officer rules pertaining unnecessary. only to oral hearings. Sec. 502.152, Offer of Proof.. Sec. 502.204(b). Moved because related to admissibility. Sec. 502.153, Appeal from Subpart M, Sec. Revised and moved ruling of presiding officer 502.221. to subpart M as other than orders of dismissal it concerns an in whole or in part. appeal. Sec. 502.154, Rights of Sec. 502.202.... Revised to mirror parties as to presentation of APA. evidence. Sec. 502.155, Burden of proof. Sec. 502.203.... Revised for clarity. Sec. 502.156, Evidence Sec. 502.204.... Revised to admissible. clarity. [[Page 93834]] Sec. 502.157, Written evidence Removed........... Within presiding officer's authority to regulate a hearing in Sec. 502.25(b)(3). Sec. 502.158, Documents Removed........... Within presiding containing matter not material. officer's authority to regulate a hearing in Sec. 502.25(b)(3). Sec. 502.159 [Reserved]. Sec. 502.160, Records in other Sec. 502.205. proceedings. Sec. 502.161, Commission's Sec. 502.206, Revised for files. Incorporation by clarity. reference. Sec. 502.162, Stipulations.... Sec. 502.207.... Revised for clarity. Sec. 502.163, Receipt of Removed........... Covered by Sec. documents after hearing. 502.216, Supplementing the record. Sec. 502.164, Oral argument at Removed........... Within presiding hearing. officer's authority to regulate a hearing in Sec. 502.25(b)(3). Sec. 502.165, Official Sec. 502.213.... Revised and Transcript. modernized. Sec. 502.166, Correction of Sec. 502.213. transcript. Sec. 502.167, Objection to Sec. 502.208.... Revised to cross public disclosure of reference Sec. information. 502.5. Sec. 502.168, Copies of data Removed........... Covered by Sec. or evidence. 502.212. Sec. 502.169, Record of Sec. 502.217.... Revised for decision. clarity. ------------------------------------------------------------------------ Following is a more detailed description of each new rule that will appear in revised subpart L. Sec. 502.201, Applicability and Scope Sec. 502.201 is derived and moved from current Sec. 502.142 and sets out the proceedings for which the rules in the subpart will apply. The term hearing is defined as ``a formal adjudicatory proceeding in which evidence is presented orally, or through written statement, or by combination thereof'' to reflect the broader and more inclusive meaning of the term in current administrative practice. Sec. 502.202, Right of Parties To Present Evidence Sec. 502.202 is derived and moved from current Sec. 502.154 but is revised to reflect that the presiding officer may limit introduction of evidence if it is ``irrelevant, immaterial, or unduly repetitious'' mirroring the Administrative Procedure Act. Sec. 502.203, Burden of Proof Sec. 502.203 is derived and moved from current Sec. 502.155 and clarifies the language to include reference to motions for ease of understanding the burden of proof. Sec. 502.204, Evidence Admissible Discussion of Sec. 502.204(a) is above in discussion of the AAPA comment. Also, the text of current Sec. 502.152 has been modernized to clarify the procedures governing when and how to make an offer of proof. The rule is moved into revised Sec. 502.204 as paragraph (b) as a logical part of the rule governing admissibility of evidence. The final rule revises slightly the proposed rule for clarity. Sec. Sec. 502.205 and 502.206, Documents Incorporated Into the Record by Reference Revising current Sec. 502.160 (revised Sec. 502.205) allows documents in another Commission proceeding to be incorporated into the record by reference. The final rule revises slightly the proposed rule for clarity. Sec. 502.206 allows material in any document on file with the Commission that is also available to the public to be incorporated into the record by reference. Sec. 502.207, Stipulations Current Sec. 502.162 allows for stipulation. The rule is moved to Sec. 502.207 and revises the language for clarity. Sec. 502.208, Objection to Public Disclosure of Information Sec. 502.208 revises current Sec. 502.167, Objection to public disclosure of information. The change adds a cross reference to Sec. 502.5 where the Commission recently spelled out its requirements for submission of confidential material in a final rule. 80 FR 14318 (Mar. 19, 2015.) Sec. Sec. 502.209 and 502.210, Prehearing Conference and Statements Current Sec. Sec. 502.94 and 502.95 are moved from subpart E as they pertain to hearings. The language is clarified to reflect current practice of filing a motion instead of a petition in Rule 502.209. The procedure and timeline for filing a prehearing statement are provided in 502.210. Sec. Sec. 502.211 Through 502.213, Oral Hearings Sec. Sec. 502.211 through 502.213 deal with oral hearings and consist of the provisions found in current Sec. Sec. 502.144, 502.151, and 502.165. Current Sec. 502.165, Official transcript, requires revision as it currently contains a description of section 11 of the Federal Advisory Committee Act (FACA) and the Office of Management and Budget's (OMB) interpretation of that section, which are the basis for the Commission's regulations with respect to obtaining copies of transcripts. In order to simplify these provisions, the Commission includes in the new Sec. 502.213 only the relevant requirements and deletes the aforementioned references to FACA and OMB's interpretation. Sec. Sec. 502.214 and 502.215, Briefs Sections 502.221 and 502.222 concerning briefs are included in this subpart and renumbered as Sec. Sec. 502.214 and 502.215. The last sentence of Sec. 502.221(a), which requires that the period of time for filing briefs will be the same for both parties, is removed as setting time is within the powers of the presiding officer as established in recently revised Sec. 502.25. Section 502.221(c) is deleted as it is not current practice for the Presiding Officer to ``require the Bureau of Enforcement to file a request for findings of fact and conclusions within a reasonable time prior to the filing of briefs.'' Generally, the Commission's Bureau of Enforcement (BOE) files the first brief unless concurrent briefs are appropriate for the particular case; this is more appropriate to address in the scheduling order issued in each particular proceeding. Sec. 502.216, Supplementing the Record Current Sec. 502.230(a), Motion to Reopen, is renumbered, renamed and revised to provide instructions concerning submission of evidence after final presentations in a proceeding and [[Page 93835]] prior to issuance of an initial decision. The language of the rule and the heading ``Supplementing the record'' is more descriptive of the current practice before the Commission's Administrative Law Judges but does not substantively revise the process or rights of a party to a proceeding. Sec. 502.217, Record of Decision Current Sec. 502.169 is moved to subpart L and the reference to ``filing and motions'' replaces ``paper and requests.'' The Commission has found that several regulations reference these rules, and that these references may now be inaccurate due to shifts in numbering. The Commission plans to correct these references in the near future through technical corrections, which will be published in the Federal Register. Rulemaking Analyses and Notices Regulatory Flexibility Act The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 601-612) provides that whenever an agency promulgates a final rule after being required to publish a notice of proposed rulemaking under the Administrative Procedure Act (APA) (5 U.S.C. 553), the agency must prepare and make available a final regulatory flexibility analysis (FRFA) describing the impact of the rule on small entities. 5 U.S.C. 604. An agency is not required to publish a FRFA, however, for the following types of rules, which are excluded from the APA's notice-and- comment requirement: interpretative rules; general statements of policy; rules of agency organization, procedure, or practice; and rules for which the agency for good cause finds that notice and comment is impracticable, unnecessary, or contrary to public interest. See 5 U.S.C. 553(b). Although the Commission elected to seek public comment on its proposed regulatory amendments to part 502, these amendments concern the Commission's practice and procedures. Therefore, the APA does not require publication of a notice of proposed rulemaking in this instance, and the Commission is not required to prepare a FRFA. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in rules to OMB in conjunction with the publication of the notice of proposed rulemaking. 5 CFR 1320.11. This final rule does not contain any collections of information, as defined by 44 U.S.C. 3502(3) and 5 CFR 1320.3(c). Regulation Identifier Number The Commission assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda, available at http://www.reginfo.gov/public/do/eAgendaMain. List of Subjects in 46 CFR Part 502 Administrative practice and procedure, Archives and records, Business and industry, Classified information, Confidential business information, Consumer protection, Freedom of information, Government in the Sunshine Act, Government publications, Health records, Information, Newspapers and magazines, Paperwork requirements, Printing, publications, Privacy, Public meetings, Record retention, Records, Reporting and recordkeeping requirements, Trade names, Trade practices. For the reasons stated in the preamble, the Federal Maritime Commission amends 46 CFR part 502 as follows: PART 502--RULES OF PRACTICE AND PROCEDURE 0 1. The authority citation for part 502 continues to read as follows: Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 571-596, 18 U.S.C. 207; 28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. 305, 40103-40104, 40304, 40306, 40501-40503, 40701-40706, 41101- 41109, 41301-41309, 44101-44106; E.O. 11222 of May 8, 1965. Sec. 502.5 [Amended] 0 2. Amend Sec. 502.5: 0 a. In the introductory text, by removing the phrase ``502.167, 502.201(j)(1)(vii)'' and adding in its place the phrase ``502.141(j)(1)(vii), 502.208'', and by removing the reference ``Sec. 502.201(j)'' and adding in its place the reference ``Sec. 502.141(j)''; and 0 b. In paragraph (b) by removing the reference ``Sec. 502.201(j)(1)(vii)'' and adding in its place the reference ``Sec. 502.141(j)(1)(vii)''. Sec. 502.6 [Amended] 0 3. Amend Sec. 502.6(c) by removing the phrase ``Sec. 502.203 or Sec. 502.204'' and adding in its place the phrase ``Sec. 502.143 or Sec. 502.144''. Sec. 501.10 [Amended] 0 4. Amend Sec. 502.10 by removing the reference ``502.153'' and adding in its place the reference ``502.221''. Subpart D--Rulemaking Sec. 502.52 [Amended] 0 5. Amend Sec. 502.52 by removing the citation ``Sec. 502.143'' and adding in its place the citation ``Sec. 502.61(c)''. Sec. 502.53 [Amended] 0 6. Amend Sec. 502.53(a) by removing the reference ``subpart J'' and adding in its place the reference ``subpart L''. Subpart E--Private Complaints and Commission Investigations 0 7. Revise the subpart E heading to read as set forth above. 0 8. Amend Sec. 502.61 by removing the words ``under normal or shortened procedures (subpart K)'' and the last sentence from paragraph (a); redesignating paragraph (b) as paragraph (d) and adding a new paragraph (b) and paragraph (c) to read as follows: Sec. 502.61 Proceedings * * * * * (b) The Commission may commence a proceeding for a rulemaking, for an adjudication (including Commission enforcement action under Sec. 502.63), or a non-adjudicatory investigation upon petition or on its own initiative by issuing an appropriate order. (c) Persons entitled to notice of hearings, except those notified by complaint service under Sec. 502.113, will be duly and timely informed of the nature of the proceeding, the legal authority and jurisdiction under which the proceeding is conducted, and the terms, substance, and issues involved, or the matters of fact and law asserted, as the case may be. Such notice will be published in the Federal Register unless all persons subject thereto are named and either are served or otherwise have notice thereof in accordance with law. * * * * * Sec. 502.69 [Amended] 0 9. Amend Sec. 502.69(f) by removing ``shortened procedure (subpart K of this part)'' and removing the citation ``Sec. 502.221'' and adding in its place the citation ``Sec. 502.214''. [[Page 93836]] Subpart F--Petitions, Exemptions, and Orders to Show Cause 0 10. Revise the subpart F heading to read as set forth above. Sec. Sec. 502.91 through 502.95 [Removed] 0 11. Remove Sec. Sec. 502.91 through 502.95. Sec. Sec. 502.73 through 502.77 [Redesignated as Sec. Sec. 502.91 through 502.95 and Transferred to Subpart F] 0 12. Redesignate Sec. Sec. 502.73 through 502.77 as Sec. Sec. 502.91 through 502.95, respectively, and transfer them to subpart F. Sec. Sec. 502.78 and 502.79 [Redesignated as Sec. Sec. 502.73 and 502.74] 0 13. Redesignate Sec. Sec. 502.78 and 502.79 as Sec. Sec. 502.73 and 502.74, respectively, in subpart E. 0 14. Add a new Sec. 502.75 to subpart E to read as follows: Sec. 502.75 Opportunity for informal settlement. (a) Parties are encouraged to make use of all the procedures of this part that are designed to simplify or avoid formal litigation, and to assist the parties in reaching settlements whenever it appears that a particular procedure would be helpful. (b) Where time, the nature of the proceeding, and the public interest permit, all interested parties will have the opportunity for the submission and consideration of facts, argument, offers of settlement, or proposal of adjustment, without prejudice to the rights of the parties. (c) No settlement offer, or proposal will be admissible in evidence over the objection of any party in any hearing on the matter. (d) As soon as practicable after the commencement of any proceeding, the presiding officer will direct the parties or their representatives to consider the use of alternative dispute resolution, including but not limited to mediation, and may direct the parties or their representatives to consult with the Federal Maritime Commission Alternative Dispute Resolution Specialist about the feasibility of alternative dispute resolution. (e) Any party may request that a mediator or other neutral be appointed to assist the parties in reaching a settlement. If such a request or suggestion is made and is not opposed, the presiding officer will appoint a mediator or other neutral who is acceptable to all parties, coordinating with the Federal Maritime Commission Alternative Dispute Resolution Specialist. The mediator or other neutral will convene and conduct one or more mediation or other sessions with the parties and will inform the presiding officer, within the time prescribed by the presiding officer, whether the dispute resolution proceeding resulted in a resolution or not, and may make recommendations as to future proceedings. If settlement is reached, it will be submitted to the presiding officer who will issue an appropriate decision or ruling. All such dispute resolution proceedings are subject to the provisions of subpart U of this part. (f) Any party may request that a settlement judge be appointed to assist the parties in reaching a settlement. If such a request or suggestion is made and is not opposed, the presiding officer will advise the Chief Administrative Law Judge who may appoint a settlement judge who is acceptable to all parties. The settlement judge will convene and preside over conferences and settlement negotiations and will report to the presiding officer within the time prescribed by the Chief Administrative Law Judge, on the results of settlement discussions with appropriate recommendations as to future proceedings. If settlement is reached, it must be submitted to the presiding officer who will issue an appropriate decision or ruling. [Rule 75.] 0 15. Revise the newly redesignated Sec. 502.91 to read as follows: Sec. 502.91 Order to show cause. The Commission may institute a proceeding by order to show cause. The order will be served upon all persons named therein, will include the information specified in Sec. 502.221, will require the person named therein to answer, and may require such person to appear at a specified time and place and present evidence upon the matters specified. [Rule 91.] Exhibit No. 1 to Subpart F of Part 502 [Removed] 0 16. Remove reserved Exhibit No. 1 to Subpart F of Part 502. Subpart H--Service of Documents Sec. 502.114 [Amended] 0 17. Amend Sec. 502.114(a) by removing the citation ``Sec. 502.145'' and adding in its place the citation ``Sec. 502.131''. Sec. 502.118 [Removed] 0 18. Remove Sec. 502.118. Subpart I--Subpoenas Sec. 502.132 [Amended] 0 19. Amend Sec. 502.132(c) by removing the citation ``Sec. 502.203'' and adding in its place the citation ``Sec. 502.143''. Sec. 502.136 [Amended] 0 20. Amend Sec. 502.136 by removing the citation ``Sec. 502.210(b)'' and adding in its place the citation ``Sec. 502.150(b)''. Subpart J--Disclosures and Discovery 0 21. Revise the subpart J heading to read as set forth above. 0 22. Redesignate Sec. 502.141 as Sec. 502.14, transfer it to subpart A, and revise the section heading to read as follows: Sec. 502.14 Public hearings. * * * * * Sec. Sec. 502.142 through 502.150 [Removed] 0 23. Remove Sec. Sec. 502.142 through 502.150. Sec. Sec. 502.201 through 502.210 [Redesignated as Sec. Sec. 502.141 through 502.150 and Transferred to Subpart J] 0 24. Redesignate Sec. Sec. 502.201 through 502.210 as Sec. Sec. 502.141 through 502.150, respectively, and transfer them to subpart J. Sec. 502.143 [Amended] 0 25. Amend newly redesignated Sec. 502.143: 0 a. In paragraph (a)(1) by removing the citation ``Sec. 502.03(a)(2)'' and adding in its place the citation ``Sec. 502.143(a)(2)''; 0 b. In paragraph (a)(2)(i) by removing the citation ``Sec. 502.204'' and adding in its place the citation ``Sec. 502.144''; 0 c. In paragraph (b)(2) by removing the citation ``Sec. 502.206'' and adding in its place the citation ``Sec. 502.146''; 0 d. In paragraph (b)(5)(i) by removing the citation ``Sec. 502.202'' and adding in its place the citation``Sec. 502.142''; 0 e. In paragraph (b)(5)(ii) by removing the citation ``Sec. 502.203(b)(5)(i)(A)'' and adding in its place the citation ``Sec. 502.143(b)(5)(i)(A)''; 0 f. In paragraph (c)(1) by removing the citation ``Sec. 502.154'' and adding in its place the citation ``Sec. 502.202'' and by removing the citation ``Sec. 502.203(b)(3)'' and adding in its place the citation ``Sec. 502.143(b)(3)''; 0 g. In paragraph (c)(2) by removing the citation ``Sec. 502.203(d)(2)'' and adding in its place the citation ``Sec. 502.143(d)(2)''; 0 h. In paragraph (d)(1) by removing the citation ``Sec. 502.201(e)(2)'' and adding in its place the citation ``Sec. 502.141(e)''; 0 i. In paragraph (d)(2)(ii) by removing the citation ``Sec. 502.201(j)'' and adding in its place the citation ``Sec. 502.141(j)''; and [[Page 93837]] 0 j. In paragraph (e)(2) by removing the citation ``Sec. 502.203(f)(1)'' and adding in its place the citation ``Sec. 502.143(f)(1)''. Sec. 502.144 [Amended] 0 26. Amend newly redesignated Sec. 502.144: 0 a. In paragraph (a)(2)(i) by removing the citation``Sec. 502.203'' and adding in its place the citation ``Sec. 502.143''; 0 b. In paragraph (1)(4) by removing the citation ``Sec. 502.203(b)(6)'' and adding in its place the citation ``Sec. 502.143(b)(6)''. Sec. 502.145 [Amended] 0 27. Amend newly redesignated Sec. 502.145: 0 a. In paragraph (a)(1) by removing the citation ``Sec. 502.201(e)(2)'' and adding in its place the citation ``Sec. 502.141(e)(2)''; 0 b. In paragraph (a)(2) by removing the citation ``Sec. 502.201(e) and (f)'' and adding in its place the citation ``Sec. 502.141(e) and (f)'' ; and 0 c. In paragraph (b)(2) by removing the citation ``Sec. 502.201(l)'' and adding in its place the citation ``Sec. 502.141(l)''. Sec. 502.146 [Amended] 0 28. Amend newly redesignated Sec. 502.146: 0 a. In paragraph (a) by removing the citation ``Sec. 502.201(e) and (f)'' and adding in its place the citation ``Sec. 502.141(e) and (f)''; and 0 b. In paragraph (b)(2) by removing the citation ``Sec. 502.201(l)'' and adding in its place the citation ``Sec. 502.141(l)''. Sec. 502.147 [Amended] 0 29. Amend newly redesignated Sec. 502.147(a)(3) by removing the citation ``Sec. 502.201(l)'' and adding in its place the citation ``Sec. 502.141(l)''. Sec. 502.148 [Amended] 0 30. Amend newly redesignated Sec. 502.148(a) by removing the citation ``Sec. Sec. 502.202 through 502.207'' and adding in its place the citation ``Sec. Sec. 502.142 through 502.147''. Sec. 502.149 [Amended] 0 31. Amend newly redesignated Sec. 502.149: 0 a. In paragraph (a)(1)(iii) by removing the citation ``Sec. 502.209(a)(2) through (7)'' and adding in its place the citation``Sec. 502.149(a)(2) through (7)''; 0 b. In paragraph (a)(2) by removing the citation ``Sec. 502.156 of subpart J'' and adding in its place the citation ``Sec. 502.204 of subpart L''; 0 c. In paragraph (a)(3) by removing the phrase ``Sec. 502.203(b)(6) or Sec. 502.204(a)(4)'' and adding in its place the phrase ``Sec. 502.143(b)(6) or Sec. 502.144(a)(4); 0 d. In paragraph (a)(7) by removing the citation ``Sec. 502.156 of subpart J'' and adding in its place the citation ``Sec. 502.204 of subpart L''; 0 e. In paragraph (b) by removing the phrase ``Sec. 502.202(b) and Sec. 502.209(d)(3)'' and adding in its place the phrase ``Sec. 502.142(b) and Sec. 502.149(d)(3)''; and 0 f. In paragraph (d)(3)(iii) by removing the citation ``Sec. 502.204'' and adding in its place the citation ``Sec. 502.144''. Sec. 502.150 [Amended] 0 32. Amend newly redesignated Sec. 502.150(a)(1) by removing the citation ``Sec. 502.201'' and adding in its place the citation ``Sec. 502.141'' and by removing the citation ``Sec. 502.206'' and adding in its place the citation ``Sec. 502.146''. Sec. Sec. 502.151 through 502.169 [Removed and reserved] 0 33. Remove and reserve Sec. Sec. 502.151 through 502.169. Subpart K [Removed and Reserved] 0 34. Remove and reserve subpart K, consisting of Sec. Sec. 502.181 through 502.187. 0 35. Revise subpart L to read as follows: Subpart L--Presentation of Evidence Sec. 502.201 Applicability and scope. 502.202 Right of parties to present evidence. 502.203 Burden of proof. 502.204 Evidence admissible. 502.205 Records in other proceedings. 502.206 Documents incorporated into the record by reference. 502.207 Stipulations. 502.208 Objection to public disclosure of information. 502.209 Prehearing conference. 502.210 Prehearing statements. 502.211 Notice of time and place of oral hearing; postponement of hearing. 502.212 Exceptions to rulings of presiding officer unnecessary. 502.213 Official transcript. 502.214 Briefs; requests for findings. 502.215 Requests for enlargement of time for filing briefs. 502.216 Supplementing the record. 502.217 Record of decision. Sec. 502.201 Applicability and scope. (a) The rules in this subpart apply to adjudicatory proceedings conducted under the statutes administered by the Commission involving matters which require determination after notice and opportunity for hearing. Adjudicatory proceedings are formal proceedings commenced upon the filing of a sworn complaint or by Order of the Commission. Such proceedings will be conducted pursuant to the Administrative Procedure Act, 5 U.S.C. 551-559, and the rules in this subpart. (b) The term hearing means a formal adjudicatory proceeding in which evidence is presented orally, or through written statements, or by combination thereof. The term oral hearing means a hearing at which evidence is presented through oral testimony of a witness. [Rule 201]. Sec. 502.202 Right of parties to present evidence. Every party has the right to present its case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. The presiding officer, however, has the right and duty to limit the introduction of evidence and the examination and cross- examination of witnesses when, in his or her judgment, such evidence or examination is irrelevant, immaterial, or unduly repetitious. [Rule 202.] Sec. 502.203 Burden of proof. In all cases governed by the requirements of the Administrative Procedure Act, 5 U.S.C. 556(d), the burden of proof is on the proponent of the motion or the order. [Rule 203.] Sec. 502.204 Evidence admissible. (a) In any proceeding under the rules in this part and in accordance with the Administrative Procedure Act, all evidence which is relevant, material, reliable and probative, and not unduly repetitious or cumulative, will be admissible. All other evidence will be excluded. The presiding officer may consider the Federal Rules of Evidence for guidance. (b) A party who objects to a ruling of the presiding officer rejecting or excluding proffered evidence may make an offer of proof. If the ruling excludes proffered oral testimony, an offer of proof may consist of a statement by counsel of the substance of the evidence that would be adduced, or in the discretion of the presiding officer, testimony of the witness. If the ruling excludes documents offered as evidence or reference to documents or records, the documents or records shall be marked for identification and will constitute the offer of proof. [Rule 204.] Sec. 502.205 Records in other proceedings. Portions of the record of other proceedings may be received in evidence. A true copy of the records sought to be admitted must be presented in the form of an exhibit unless the presiding officer accepts the parties' stipulation that such records may be incorporated by reference. [Rule 205.] [[Page 93838]] Sec. 502.206 Documents incorporated into the record by reference. Any matter contained in a document on file with the Commission that is available to the public may be received in evidence through incorporation by reference without producing such document, provided that the matter so offered is specified in such manner as to be clearly identified, with sufficient particularity, and readily located electronically. [Rule 206.] Sec. 502.207 Stipulations. The parties may, and are encouraged to, stipulate any facts involved in the proceeding and include them in the record with the consent of the presiding officer. A stipulation may be admitted even if all parties do not agree, provided that any party who does not agree to the stipulation has the right to cross-examine and offer rebuttal evidence. [Rule 207.] Sec. 502.208 Objection to public disclosure of information. (a) If any party wishes to present confidential information or upon objection to public disclosure of any information sought to be elicited, the requirements and procedures in Sec. 502.5 will apply. (b) In an oral hearing, the presiding officer may in his or her discretion order that a witness will disclose such information only in the presence of the parties and those designated and authorized by the presiding officer. Any transcript of such testimony will be held confidential to the extent the presiding officer determines. Copies of transcripts will be served only to authorized parties or their representatives or other parties as the presiding officer may designate. (c) Any information given pursuant to this section may be used by the presiding officer or the Commission if deemed necessary to a correct decision in the proceeding. [Rule 208.] Sec. 502.209 Prehearing conference. (a)(1) Prior to any hearing, the Commission or presiding officer may direct all interested parties, by written notice, to attend one or more prehearing conferences for the purpose of considering any settlement under Sec. 502.91, formulating the issues in the proceeding, and determining other matters to aid in its disposition. In addition to any offers of settlement or proposals of adjustment, the following may be considered: (i) Simplification of the issues; (ii) The necessity or desirability of amendments to the pleadings; (iii) The possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof; (iv) Limitation of the number of witnesses; (v) The procedure to be used at the hearing; (vi) The distribution to the parties prior to the hearing of written testimony and exhibits; (vii) Consolidation of the examination of witnesses by counsel; (viii) Such other matters as may aid in the disposition of the proceeding. (2) Prior to the hearing, the presiding officer may require exchange of exhibits and any other material that may expedite the hearing. The presiding officer will assume the responsibility of accomplishing the purposes of the notice of prehearing conference so far as this may be possible without prejudice to the rights of any party. (3) The presiding officer will rule upon all matters presented for decision, orally upon the record when feasible, or by subsequent ruling in writing. If a party determines that a ruling made orally does not cover fully the issue presented, or is unclear, such party may file a motion requesting a further ruling within ten (10) days after receipt of the transcript. (b) In any proceeding under the rules in this part, the presiding officer hold an informal conference prior to the taking of testimony, or may recess the hearing for such a conference, with a view to carrying out the purposes of this section. (c) At any prehearing conference, consideration may be given to whether the use of alternative dispute resolution would be appropriate or useful for the disposition of the proceeding whether or not there has been previous consideration of such use. [Rule 209.] Sec. 502.210 Prehearing statements. (a) Unless a waiver is granted by the presiding officer, it is the duty of all parties to a proceeding to prepare a statement or statements at a time and in the manner to be established by the presiding officer provided that there has been reasonable opportunity for discovery. To the extent possible, joint statements should be prepared. (b) The prehearing statement must state the name of the party or parties on whose behalf it is presented and briefly set forth the following matters, unless otherwise ordered by the presiding officer: (1) Issues involved in the proceeding. (2) Facts stipulated pursuant to the procedures together with a statement that the party or parties have communicated or conferred in a good faith effort to reach stipulation to the fullest extent possible. (3) Facts in dispute. (4) Witnesses and exhibits by which disputed facts will be litigated. (5) A brief statement of applicable law. (6) The conclusion to be drawn. (7) Suggested time and location of hearing and estimated time required for presentation of the party's or parties' case. (8) Any appropriate comments, suggestions, or information which might assist the parties in preparing for the hearing or otherwise aid in the disposition of the proceeding. (c) The presiding officer may, for good cause shown, permit a party to introduce facts or argue points of law outside the scope of the facts and law outlined in the prehearing statement. Failure to file a prehearing statement, unless waiver has been granted by the presiding officer, may result in dismissal of a party from the proceeding, dismissal of a complaint, judgment against respondents, or imposition of such other sanctions as may be appropriate under the circumstances. (d) Following the submission of prehearing statements, the presiding officer may, upon motion or otherwise, convene a prehearing conference for the purpose of further narrowing issues and limiting the scope of the hearing if, in his or her opinion, the prehearing statements indicate lack of dispute of material fact not previously acknowledged by the parties or lack of legitimate need for cross- examination and is authorized to issue appropriate orders consistent with the purposes stated in this section. [Rule 210.] Sec. 502.211 Notice of time and place of oral hearing; postponement of hearing. (a) The notice of an oral hearing will designate the time and place the person or persons who will preside, and the type of decision to be issued. The date or place of a hearing for which notice has been issued may be changed when warranted. Reasonable notice will be given to the parties or their representatives of the time and place of the change thereof, due regard being had for the public interest and the convenience and necessity of the parties or their representatives. Notice may be served by mail, facsimile transmission, or electronic mail. (b) Motions for postponement of any hearing date must be filed in accordance with Sec. 502.104. [Rule 211.] Sec. 502.212 Exceptions to rulings of presiding officer unnecessary. A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, the party [[Page 93839]] doing so need only state the action that it wants the presiding officer to take or that it objects to, along with the grounds for the request or objection. Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made. [Rule 212.] Sec. 502.213 Official transcript. (a) The Commission will designate the official reporter for all hearings. The official transcript of testimony taken, together with any exhibits and any briefs or memoranda of law filed therewith, will be filed with the Commission. Transcripts of testimony will be available in any proceeding under the rules in this part, at actual cost of duplication. (b)(1) Where the Commission does not request daily copy service, any party requesting such service must bear the incremental cost of transcription above the regular copy transcription cost borne by the Commission, in addition to the actual cost of duplication. Where the requesting party applies for and demonstrates that the furnishing of daily copy is indispensable to the protection of a vital right or interest in achieving a fair hearing, the presiding officer in the proceeding in which the application is made will order that daily copy service be provided the requesting party at the actual cost of duplication, with the full cost of transcription being borne by the Commission. (2) In the event a request for daily copy is denied by the presiding officer, the requesting party, in order to obtain daily copy, must pay the cost of transcription over and above that borne by the Commission, i.e., the incremental cost between that paid by the Commission when it requests regular copy and when it requests daily copy. The decision of the presiding officer in this situation is interpreted as falling within the scope of the functions and powers of the presiding officer, as defined in Sec. 502.25(a). (c) Motions made at the hearing to correct the transcript will be acted upon by the presiding officer. Motions made after an oral hearing to correct the record must be filed with the presiding officer within twenty-five (25) days after the last day of hearing or any session thereof, unless otherwise directed by the presiding officer, and must be served on all parties. If no objections are received within ten (10) days after date of service, the transcript will, upon approval of the presiding officer, be changed to reflect such corrections. If objections are received, the motion will be acted upon with due consideration of the stenographic record of the hearing. [Rule 213.] Sec. 502.214 Briefs; requests for findings. (a) The presiding officer will determine the time and manner of filing briefs and any enlargement of time. (b) Briefs will be served upon all parties pursuant to subpart H of this part. (c) Unless otherwise ordered by the presiding officer, opening or initial briefs must contain the following matters in separately captioned sections: (1) Introductory section describing the nature and background of the case; (2) Proposed findings of fact in serially numbered paragraphs with reference to exhibit numbers and pages of the transcript; (3) Argument based upon principles of law with appropriate citations of the authorities relied upon; and (4) Conclusions. (d) All briefs must contain a subject index or table of contents with page references and a list of authorities cited. (e) All briefs filed pursuant to this section must ordinarily be limited to eighty (80) pages in length, exclusive of pages containing the table of contents, table of authorities, and certificate of service, unless the presiding officer allows the parties to exceed this limit for good cause shown and upon application filed not later than seven (7) days before the time fixed for filing of such a brief or reply. [Rule 214.] Sec. 502.215 Requests for enlargement of time for filing briefs. Requests for enlargement of time to file briefs must conform to the requirements of Sec. 502.102. [Rule 215.] Sec. 502.216 Supplementing the record. A motion to supplement the record, pursuant to Sec. 502.69, should be filed if submission of evidence is desired after the parties' presentation in a proceeding, but before issuance by the presiding officer of an initial decision. [Rule 216.] Sec. 502.217 Record of decision. The transcript of testimony and exhibits, together with all filings and motions filed in the proceeding, will constitute the exclusive record for decision. [Rule 217.] Subpart M--Decisions; Appeals; Exceptions 0 36. Revise the subpart M heading to read as set forth above. 0 37. Revise Sec. 502.221 to read as follows: Sec. 502.221 Appeal from ruling of presiding officer other than orders of dismissal in whole or in part. (a) Rulings of the presiding officer may not be appealed prior to or during the course of the hearing, or subsequent thereto, if the proceeding is still before him or her, except where the presiding officer finds it necessary to allow an appeal to the Commission to prevent substantial delay, expense, or detriment to the public interest, or undue prejudice to a party. (b) Any party seeking to appeal must file a motion for leave to appeal no later than fifteen (15) days after written service or oral notice of the ruling in question, unless the presiding officer, for good cause shown, enlarges or shortens the time. Any such motion must contain the grounds for leave to appeal and the appeal itself. (c) Replies to the motion for leave to appeal and the appeal may be filed within fifteen (15) days after date of service thereof, unless the presiding officer, for good cause shown, enlarges or shortens the time. If the motion is granted, the presiding officer must certify the appeal to the Commission. (d) Unless otherwise provided, the certification of the appeal will not operate as a stay of the proceeding before the presiding officer. (e) The provisions of Sec. 502.10 do not apply to this section. [Rule 221.] Sec. 502.222 [Removed and Reserved] 0 38. Remove and reserve Sec. 502.222. 0 39. Revise Sec. 502.230 to read as follows: Sec. 502.230 Reopening by Commission. (a) Reopening by the Commission. After an initial decision by the presiding officer, or in a matter otherwise pending before the Commission, but before issuance of a Commission decision, the Commission may, after petition and reply in conformity with paragraphs (b) and (c) of this section, or upon its own motion, reopen a proceeding for the purpose of taking further evidence. (b) Motion to reopen. A motion to reopen shall be served in conformity with the requirements of subpart H and will set forth the grounds requiring reopening of the proceeding, including material changes of fact or law alleged to have occurred. (c) Reply. Within ten (10) days following service of a motion to reopen, any party may reply to such motion. (d) Remand by the Commission. Nothing contained in this rule precludes the Commission from remanding a proceeding to the presiding officer for the taking of addition evidence or determining points of law. [Rule 230.] [[Page 93840]] By the Commission. Rachel E. Dickon, Assistant Secretary. [FR Doc. 2016-30745 Filed 12-21-16; 8:45 am] BILLING CODE 6731-AA-P
![Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations 93831
residues of the bifenthrin, (2- Authorities (AAPA) that addressed clarifies, based on Commission and
methyl[1,1′-biphenyl]-3-yl)methyl-3-(2- proposed § 502.204, revising and judicial precedent, that the standard of
chloro-3,3,3-trifluoro-1-propenyl)-2,2- renumbering § 502.156. Current admissibility is governed by the APA,
dimethylcyclopropane-carboxylate) in § 502.156 states ‘‘[u]nless inconsistent not the FRE. While the presiding officer
or on the specified agricultural with the requirements of the may consider the FRE for guidance, they
commodities, resulting from use of the Administrative Procedure Act and these are neither controlling nor binding. In
pesticide pursuant to FIFRA section 18 Rules, the Federal Rules of Evidence response to the AAPA’s expressed
emergency exemptions. The tolerances . . . will also be applicable.’’ As concern that the revised language
expire on the date specified in the table. explained in the NPRM, the proposed suggests a change in the presiding
revision is intended to simplify the officer’s discretion, we clarify the final
Commodity Parts per Expiration date language in the rule by restating the rule by replacing the language ‘‘look to
million liberal Administrative Procedure Act the FRE for guidance’’ with the language
(APA) standard for admissibility and ‘‘consider the FRE for guidance’’ as it
Apple ................. 0.5 12/31/2018
better reflects the discretion of the
Avocado ............ 0.50 12/31/2019 also to provide that the presiding officer
Nectarine .......... 0.5 12/31/2018 may continue to look to the Federal presiding officer.
Peach ................ 0.5 12/31/2018 Rules of Evidence (FRE) for guidance. The Commission recently addressed
Pomegranate .... 0.50 12/31/2019 The Commission adopted the original the utility of applying the FRE in
language in § 502.156 in 1976, shortly proceedings before it in Tober. Pointing
* * * * * to its own precedent, the Commission
after the FRE went into effect. 41 FR
noted that it has long recognized the
[FR Doc. 2016–29882 Filed 12–21–16; 8:45 am] 20585, 20588 (May 19, 1976). In the
liberal standards of admissibility of
BILLING CODE 6560–50–P 1975 notice proposing the language the
evidence in administrative proceedings
Commission asserted that, as a general
and the need for considerable relaxation
matter, the FRE did not appear to be
of the rules of evidence followed by the
FEDERAL MARITIME COMMISSION inconsistent with the APA and that the
federal courts in proceedings before the
FRE could be of great use to the
Commission. Applying those standards
46 CFR Part 502 Commission’s administrative law judges
to the ALJ’s exclusion of certain exhibits
(ALJs) in disposing of evidentiary issues
[Docket No. 16–08] on the basis of the FRE, the Commission
that arise in Commission proceedings, held that challenged exhibits were
RIN 3072–AC64 so long as they were consistent with the admissible under the APA standard and
requirements of the APA. 40 FR 43295, that ‘‘to the extent that the
Rules of Practice and Procedure; 43927 (Sep. 24, 1975). Since
Presentation of Evidence in Commission’s rules and the APA
promulgation of the section, however, diverge from the FRE, the FRE are not
Commission Proceedings the Commission ‘‘has recognized the controlling and the Commission is not
AGENCY: Federal Maritime Commission.
liberal standards of admissibility of bound by their requirements.’’ Id., 549.
evidence in administrative proceedings The AAPA also states that the
ACTION: Final rule and has repeatedly ‘. . . identified the proposed rule could impact motions for
SUMMARY: The Federal Maritime need for considerable relaxation of the summary judgment. It noted that in
Commission is reorganizing several rules of evidence followed by the federal court, a party opposing a motion
subparts of its Rules of Practice and federal courts in proceedings before the on the grounds that there are material
Procedure and revising its rules Commission.’ ’’ EuroUSA Shipping, Inc., facts in genuine dispute must show that
regarding presentation of evidence in Tober Group, Inc.—Possible Violations, there is admissible evidence on its side
Commission proceedings. 31 S.R.R. 540, 547 (FMC 2008) of the asserted dispute. The AAPA
(hereinafter Tober) (quoting Pacific appears to be concerned that a loosening
DATES: Effective January 27, 2016.
Champion Express Co., Ltd.—Possible of the standard may limit the utility of
FOR FURTHER INFORMATION CONTACT: Violations, 28 S.R.R. 1102, 1105–06 summary judgment motions. The
Rachel E. Dickon, Assistant Secretary, (ALJ 1999)). Given the divergence Commission addressed the admissibility
Federal Maritime Commission, 800 between the FRE and APA standards, of evidence in the context of motions for
North Capitol Street NW., Washington, the current section’s attempt to apply summary judgment in Tober. Citing the
DC 20573–0001. Phone: (202) 523–5725. both standards simultaneously creates a Supreme Court’s decision in Celotex
Email: secretary@fmc.gov. tension in the regulation and could be Corp. v. Catrett, 477 U.S. 317, 324
SUPPLEMENTARY INFORMATION: The confusing to parties. Accordingly, the (1986), the Commission stated: ‘‘While
Commission is updating or reorganizing Commission is now explicitly providing the nonmoving party is to show facts
several subparts of 46 CFR part 502, its that presiding officers may look to the that present a genuine issue worthy of
Rules of Practice and Procedure, and FRE for guidance when determining the trial, the nonmoving party at the
substantively revising the subpart admissibility of evidence. The AAPA summary judgment stage is not required
regarding how hearings are conducted notes that current rule § 502.156, states to produce evidence in a form that
to improve guidance concerning the that the FRE ‘‘will be applicable’’ to would be admissible at trial.’’ Id., 31
presentation of evidence in Commission Commission proceedings ‘‘unless S.R.R. at 549 (emphasis added). Thus,
proceedings. Certain current rules are inconsistent with’’ the requirements of the Commission made clear that at the
also removed to clarify current practice the APA whereas the proposed language summary judgment stage, the
and eliminate duplication. provides that the presiding officer ‘‘may nonmoving party only needs to show
On May 3, 2016, the Commission look to the FRE for guidance.’’ The facts that present a genuine issue
Lhorne on DSK30JT082PROD with RULES
issued a Notice of Proposed Rulemaking AAPA inquires whether such a change worthy of trial. Id. This standard is
(NPRM) seeking public comment on the is intended to loosen the admissibility applied to ensure that doubts are
proposed amendments. 81 FR 26517. standard in cases before the resolved in favor of the nonmoving
The Commission received one comment Commission, and if so, to what to party. As the Commission noted, it has
in response to the NPRM from the degree. The new rule does not loosen denied summary judgment even when
American Association of Port the admissibility standards, but rather the nonmovant has not submitted any
VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\22DER1.SGM 22DER1](https://thefederalregister.org/doc/81_FR_94077/page/1.svg)
![93832 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations
evidence, as well as when evidence has the Commission under the APA presiding officers to exclude evidence based
been deemed to be incomplete. Id., 546. standard as in Tober. on the standard forces them to undertake a
In short, there is no requirement in the Finally, the AAPA expressed concern difficult and hazardous task; (3) excluding
federal courts or at the Commission that that the Presiding Officer may perceive evidence on the basis that it is inadmissible
the party opposing a motion for that the revised rule does not accord in a jury trial is totally unnecessary to insure
summary judgment present evidence discretion to exclude evidence that agencies act only on the basis of reliable
that would be admissible at trial or considered unreliable. Both the current evidence; and (4) agencies, like other experts,
hearing. To the extent that the question and revised language are governed should be permitted to rely on classes of
of admissibility might arise at the however by the same standard set forth evidence broader than those that can be
summary judgment stage, the proposed in the APA. considered by lay jurors.
rule does not change existing standards The APA standard of admissibility
has been the governing standard since Id. Accordingly, ACUS recommended
but simply continues application of the
this regulation was originally adopted in that ‘‘Congress should not require
liberal standard mandated by the APA.
1965. Since incorporation into the agencies to apply the [FRE], with or
The AAPA also expresses concern
that making reliance on the FRE existing regulation in 1976, the FRE without the qualification ‘so far as
discretionary may create discrepancies have always been subservient to the practicable,’ to limit the discretion of
in the decisions of Presiding Officers, liberal APA standard. The revised presiding officers to admit evidence in
either because a Presiding Officer may language in the proposed rule adheres to formal adjudications.’’ Id. ACUS also
choose to follow the FRE in one case but this standard as required by the APA, recognized, however, the disadvantages
choose not to follow it in another, or while recognizing the usefulness of the of relying on the APA standard alone,
because different Presiding Officers may FRE for guidance. and the Commission has concluded that
apply different standards. In 1986, the Administrative the FRE can be useful as a guide for
The revised rule does not create new Conference of the United States (ACUS) litigants and presiding officers.
or different standards. There is only one published recommendations regarding Reorganization of Part 502
standard as provided in the APA, i.e., the use of the FRE in administrative
‘‘all evidence which is relevant, proceedings. ACUS compared three Part 502 sets out the rules governing
material, reliable and probative, and not general categories of agency evidentiary procedure in all types of Commission
unduly repetitious or cumulative, shall rules. 1986 ACUS 6, 51 FR 25642. The proceedings. However, after years of
be admissible.’’ 46 CFR 502.156; 5 category that is most analogous to revisions, some users find the grouping
U.S.C. 556(d). The FRE will continue to current § 502.156 included ‘‘rules that and ordering of the subparts confusing.
be available to the presiding officer as require presiding officers to apply the The Commission will reorder and
a resource for guidance in determining [FRE] ‘so far as practicable.’’’ Id. ACUS rename certain subparts to better reflect
admissibility of evidence under the identified four significant disadvantages the chronology of a typical adjudication,
APA standard. Any legal inconsistency with respect to this standard including: and to distinguish other types of
in decisions on the admissibility of (1) Courts seem confused as to what it proceedings, as enumerated in this
evidence will be subject to review by means or how to enforce it; (2) instructing table:
Current 46 CFR part 502 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, re-
Replies. sion Investigations. locate 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, re-
to Show Cause. locate 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 Subpart E clarify chronologically when informal
settlement is most likely to occur. This
In subpart A, several cross references Subpart E, currently ‘‘Proceedings, change is not intended to limit the
are corrected and current § 502.141 Pleading, Motions, Replies’’ is renamed applicability of the section which would
which establishes that the Commission ‘‘Private Complaints and Commission apply in any proceeding, including the
may hold hearings that are not part of Investigations.’’ Revised subpart E proceedings described in subpart F.
an adjudicatory process, is moved to contains the procedures for institution
this subpart as general information and of those proceedings, motions practice, Subpart F
retitled. opportunity for settlement, and other
Lhorne on DSK30JT082PROD with RULES
related rules. Section 502.61 which Current subpart F addresses
Subpart D opens the subpart is revised by moving Settlement and Prehearing Procedure.
and amending a rule on notice of Inasmuch as those subject areas are part
Cross references are corrected in of the process in adjudicatory
subpart D. hearings from subpart J. Section 502.91
which deals with informal settlements proceedings, they are divided and
is being moved to subpart E in order to moved into subpart E and a revised
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![Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations 93833
subpart L governing presentation of of Evidence.’’ The revisions to subpart procedure rules are not consistent with
evidence. J are discussed more extensively below. the requirement for initial disclosures,
Subpart F is revised to apply to Subpart K which help expedite all proceedings. If
proceedings other than private parties want to further limit discovery,
The Commission is removing and that is possible without the provisions
complaints and Commission
reserving subpart K, ‘‘Shortened of subpart K. Moreover, the subparts S
investigations, titled: ‘‘Petitions, Procedure.’’ Shortened Procedure
Exemptions, and Orders to Show and T small claims proceedings may
regulations provides that, if the offer a solution to litigants seeking faster
Cause.’’ These types of proceedings are respondent consents, after briefing by
generally distinct from complaint and resolution of their disputes. The rules
the parties, the record is closed and a governing small claims proceedings are
investigation proceedings. With clear decision may be issued without
headings, the new rules are intended to designed to make the litigation process
discovery or an oral hearing. The faster and simpler for litigants seeking
be easier for the user to locate. Revised procedure has rarely been requested,
subpart F encompasses current reparations of $50,000 or less.
although parts of the procedure have
§§ 502.73 through 502.77. become standard practice (e.g., not Subpart M
Subparts J, and L requiring an oral hearing). The
procedure has not resulted in an ALJ The Commission revises subpart M to
The Commission is changing subpart decision in recent history, as the three cover only matters that occur after
J, ‘‘Hearings; Presiding Officers; proceedings utilizing shortened conclusion of the parties’ presentations
Evidence’’, and subpart L, ‘‘Disclosure procedure since 1998 have resulted in in proceedings (i.e., decisions, appeals
and Discovery’’ to more logically and settlement. The Commission has made and exceptions). The rules concerning
chronologically group the processes several rule revisions in the past five briefs are moved into revised subpart L,
conducted in a formal adjudication. years that have enhanced the efficiency ‘‘Presentation of Evidence.’’ However,
Subpart L, Disclosure and Discovery is of formal complaint proceedings rules governing briefs to accompany
moved in its entirety to subpart J. including the requirement for initial exceptions will remain in subpart M.
Current subpart J, Hearings, is revised to disclosures in discovery, (current Current § 502.153, Appeals from ruling
encompass all rules governing the § 502.201), and the establishment of of presiding officer other than orders of
presentation of evidence and presented default rules in the absence of an dismissal in whole or in part are moved
in revised subpart L titled ‘‘Presentation answer, § 502.62(b)(6). Shortened into subpart M, as it concerns an appeal.
Subpart M current section New section Revisions
§ 502.221, Briefs; requests for findings ............. Subpart L, § 502.214, Briefs ............................. Revised for clarity.
§ 502.222, Requests for enlargement of time Subpart L, § 502.215 ........................................ Revised for clarity.
for 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 will be moved to
§ 502.216, Supplementing the record.
Subpart J, Hearings—Presentation of evidence are revised and presented in clarify and simplify rules where
Evidence revised subpart L. The revisions are possible. Several rules currently in the
intended to reflect the procedures subpart will be removed in their entirety
Currently subpart J, Hearings, currently used by the Commission, to to eliminate duplication and reflect
presents the Commission’s rules on utilize current language and standards current practice. The revisions to
hearings and presentation of evidence. set by the Federal Rules of Civil subpart J are enumerated in the table
These rules governing presentation of Procedure where appropriate, and to below:
Subpart J current section 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 § 502.212 .......................................................... Regroup with other rules pertaining only to
officer 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-
Lhorne on DSK30JT082PROD with RULES
cer other than orders of dismissal in whole cerns an appeal.
or in part.
§ 502.154, Rights of parties as to presentation § 502.202 .......................................................... Revised to mirror APA.
of evidence.
§ 502.155, Burden of proof ................................ § 502.203 .......................................................... Revised for clarity.
§ 502.156, Evidence admissible ........................ § 502.204 .......................................................... Revised to clarity.
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![93834 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations
Subpart J current section New Subpart L Revisions
§ 502.157, Written evidence .............................. Removed .......................................................... 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.
§ 502.163, Receipt of documents after hearing Removed .......................................................... Covered by § 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 § 502.212.
§ 502.169, Record of decision ........................... § 502.217 .......................................................... Revised for clarity.
Following is a more detailed §§ 502.205 and 502.206, Documents 502.151, and 502.165. Current
description of each new rule that will Incorporated Into the Record by § 502.165, Official transcript, requires
appear in revised subpart L. Reference revision as it currently contains a
Revising current § 502.160 (revised description of section 11 of the Federal
§ 502.201, Applicability and Scope Advisory Committee Act (FACA) and
§ 502.205) allows documents in another
§ 502.201 is derived and moved from Commission proceeding to be the Office of Management and Budget’s
current § 502.142 and sets out the incorporated into the record by (OMB) interpretation of that section,
proceedings for which the rules in the reference. The final rule revises slightly which are the basis for the
subpart will apply. The term hearing is the proposed rule for clarity. § 502.206 Commission’s regulations with respect
defined as ‘‘a formal adjudicatory allows material in any document on file to obtaining copies of transcripts. In
proceeding in which evidence is with the Commission that is also order to simplify these provisions, the
available to the public to be Commission includes in the new
presented orally, or through written
incorporated into the record by § 502.213 only the relevant
statement, or by combination thereof’’ to
reference. requirements and deletes the
reflect the broader and more inclusive
aforementioned references to FACA and
meaning of the term in current § 502.207, Stipulations OMB’s interpretation.
administrative practice.
Current § 502.162 allows for §§ 502.214 and 502.215, Briefs
§ 502.202, Right of Parties To Present stipulation. The rule is moved to
Evidence § 502.207 and revises the language for Sections 502.221 and 502.222
clarity. concerning briefs are included in this
§ 502.202 is derived and moved from subpart and renumbered as §§ 502.214
current § 502.154 but is revised to § 502.208, Objection to Public and 502.215. The last sentence of
reflect that the presiding officer may Disclosure of Information § 502.221(a), which requires that the
limit introduction of evidence if it is § 502.208 revises current § 502.167, period of time for filing briefs will be
‘‘irrelevant, immaterial, or unduly Objection to public disclosure of the same for both parties, is removed as
repetitious’’ mirroring the information. The change adds a cross setting time is within the powers of the
Administrative Procedure Act. reference to § 502.5 where the presiding officer as established in
Commission recently spelled out its recently revised § 502.25. Section
§ 502.203, Burden of Proof 502.221(c) is deleted as it is not current
requirements for submission of
§ 502.203 is derived and moved from confidential material in a final rule. 80 practice for the Presiding Officer to
current § 502.155 and clarifies the FR 14318 (Mar. 19, 2015.) ‘‘require the Bureau of Enforcement to
language to include reference to motions file a request for findings of fact and
§§ 502.209 and 502.210, Prehearing conclusions within a reasonable time
for ease of understanding the burden of Conference and Statements
proof. prior to the filing of briefs.’’ Generally,
Current §§ 502.94 and 502.95 are the Commission’s Bureau of
§ 502.204, Evidence Admissible moved from subpart E as they pertain to Enforcement (BOE) files the first brief
hearings. The language is clarified to unless concurrent briefs are appropriate
Discussion of § 502.204(a) is above in reflect current practice of filing a motion for the particular case; this is more
discussion of the AAPA comment. Also, instead of a petition in Rule 502.209. appropriate to address in the scheduling
the text of current § 502.152 has been The procedure and timeline for filing a order issued in each particular
modernized to clarify the procedures prehearing statement are provided in proceeding.
governing when and how to make an 502.210.
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offer of proof. The rule is moved into § 502.216, Supplementing the Record
revised § 502.204 as paragraph (b) as a §§ 502.211 Through 502.213, Oral Current § 502.230(a), Motion to
logical part of the rule governing Hearings Reopen, is renumbered, renamed and
admissibility of evidence. The final rule §§ 502.211 through 502.213 deal with revised to provide instructions
revises slightly the proposed rule for oral hearings and consist of the concerning submission of evidence after
clarity. provisions found in current §§ 502.144, final presentations in a proceeding and
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![Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations 93835
prior to issuance of an initial decision. publication of the notice of proposed § 502.6 [Amended]
The language of the rule and the rulemaking. 5 CFR 1320.11. This final
■ 3. Amend § 502.6(c) by removing the
heading ‘‘Supplementing the record’’ is rule does not contain any collections of
phrase ‘‘§ 502.203 or § 502.204’’ and
more descriptive of the current practice information, as defined by 44 U.S.C.
adding in its place the phrase
before the Commission’s Administrative 3502(3) and 5 CFR 1320.3(c).
‘‘§ 502.143 or § 502.144’’.
Law Judges but does not substantively
Regulation Identifier Number
revise the process or rights of a party to § 501.10 [Amended]
a proceeding. The Commission assigns a regulation
identifier number (RIN) to each ■ 4. Amend § 502.10 by removing the
§ 502.217, Record of Decision regulatory action listed in the Unified reference ‘‘502.153’’ and adding in its
Current § 502.169 is moved to subpart Agenda of Federal Regulatory and place the reference ‘‘502.221’’.
L and the reference to ‘‘filing and Deregulatory Actions (Unified Agenda).
Subpart D—Rulemaking
motions’’ replaces ‘‘paper and requests.’’ The Regulatory Information Service
The Commission has found that Center publishes the Unified Agenda in § 502.52 [Amended]
several regulations reference these rules, April and October of each year. You
and that these references may now be may use the RIN contained in the ■ 5. Amend § 502.52 by removing the
inaccurate due to shifts in numbering. heading at the beginning of this citation ‘‘§ 502.143’’ and adding in its
The Commission plans to correct these document to find this action in the place the citation ‘‘§ 502.61(c)’’.
references in the near future through Unified Agenda, available at http:// § 502.53 [Amended]
technical corrections, which will be www.reginfo.gov/public/do/
published in the Federal Register. eAgendaMain. ■ 6. Amend § 502.53(a) by removing the
reference ‘‘subpart J’’ and adding in its
Rulemaking Analyses and Notices List of Subjects in 46 CFR Part 502 place the reference ‘‘subpart L’’.
Regulatory Flexibility Act Administrative practice and
procedure, Archives and records, Subpart E—Private Complaints and
The Regulatory Flexibility Act Commission Investigations
Business and industry, Classified
(codified as amended at 5 U.S.C. 601–
information, Confidential business
612) provides that whenever an agency ■ 7. Revise the subpart E heading to
information, Consumer protection,
promulgates a final rule after being read as set forth above.
Freedom of information, Government in
required to publish a notice of proposed
the Sunshine Act, Government ■ 8. Amend § 502.61 by removing the
rulemaking under the Administrative
publications, Health records, words ‘‘under normal or shortened
Procedure Act (APA) (5 U.S.C. 553), the
Information, Newspapers and procedures (subpart K)’’ and the last
agency must prepare and make available
magazines, Paperwork requirements, sentence from paragraph (a);
a final regulatory flexibility analysis
Printing, publications, Privacy, Public redesignating paragraph (b) as paragraph
(FRFA) describing the impact of the rule
meetings, Record retention, Records, (d) and adding a new paragraph (b) and
on small entities. 5 U.S.C. 604. An
Reporting and recordkeeping paragraph (c) to read as follows:
agency is not required to publish a
requirements, Trade names, Trade
FRFA, however, for the following types § 502.61 Proceedings
practices.
of rules, which are excluded from the * * * * *
APA’s notice-and-comment For the reasons stated in the
preamble, the Federal Maritime (b) The Commission may commence a
requirement: interpretative rules; proceeding for a rulemaking, for an
general statements of policy; rules of Commission amends 46 CFR part 502 as
follows: adjudication (including Commission
agency organization, procedure, or enforcement action under § 502.63), or a
practice; and rules for which the agency PART 502—RULES OF PRACTICE AND non-adjudicatory investigation upon
for good cause finds that notice and PROCEDURE petition or on its own initiative by
comment is impracticable, unnecessary, issuing an appropriate order.
or contrary to public interest. See 5 ■ 1. The authority citation for part 502
U.S.C. 553(b). (c) Persons entitled to notice of
continues to read as follows: hearings, except those notified by
Although the Commission elected to
seek public comment on its proposed
Authority: 5 U.S.C. 504, 551, 552, 553, complaint service under § 502.113, will
556(c), 559, 561–569, 571–596, 18 U.S.C. 207; be duly and timely informed of the
regulatory amendments to part 502, 28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C.
these amendments concern the nature of the proceeding, the legal
305, 40103–40104, 40304, 40306, 40501– authority and jurisdiction under which
Commission’s practice and procedures. 40503, 40701–40706, 41101–41109, 41301–
Therefore, the APA does not require the proceeding is conducted, and the
41309, 44101–44106; E.O. 11222 of May 8,
publication of a notice of proposed 1965. terms, substance, and issues involved,
rulemaking in this instance, and the or the matters of fact and law asserted,
Commission is not required to prepare
§ 502.5 [Amended] as the case may be. Such notice will be
a FRFA. ■ 2. Amend § 502.5: published in the Federal Register unless
■ a. In the introductory text, by all persons subject thereto are named
Paperwork Reduction Act removing the phrase ‘‘502.167, and either are served or otherwise have
The Paperwork Reduction Act of 1995 502.201(j)(1)(vii)’’ and adding in its notice thereof in accordance with law.
(44 U.S.C. 3501–3521) requires an place the phrase ‘‘502.141(j)(1)(vii), * * * * *
agency to seek and receive approval 502.208’’, and by removing the reference
Lhorne on DSK30JT082PROD with RULES
§ 502.69 [Amended]
from the Office of Management and ‘‘§ 502.201(j)’’ and adding in its place
Budget (OMB) before collecting the reference ‘‘§ 502.141(j)’’; and ■ 9. Amend § 502.69(f) by removing
information from the public. 44 U.S.C. ■ b. In paragraph (b) by removing the ‘‘shortened procedure (subpart K of this
3507. The agency must submit reference ‘‘§ 502.201(j)(1)(vii)’’ and part)’’ and removing the citation
collections of information in rules to adding in its place the reference ‘‘§ 502.221’’ and adding in its place the
OMB in conjunction with the ‘‘§ 502.141(j)(1)(vii)’’. citation ‘‘§ 502.214’’.
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![93836 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations
Subpart F—Petitions, Exemptions, and will convene and conduct one or more Subpart I—Subpoenas
Orders to Show Cause mediation or other sessions with the
parties and will inform the presiding § 502.132 [Amended]
■ 10. Revise the subpart F heading to officer, within the time prescribed by ■ 19. Amend § 502.132(c) by removing
read as set forth above. the presiding officer, whether the the citation ‘‘§ 502.203’’ and adding in
§§ 502.91 through 502.95 [Removed] dispute resolution proceeding resulted its place the citation ‘‘§ 502.143’’.
in a resolution or not, and may make § 502.136 [Amended]
■ 11. Remove §§ 502.91 through 502.95. recommendations as to future
§§ 502.73 through 502.77 [Redesignated as proceedings. If settlement is reached, it ■ 20. Amend § 502.136 by removing the
§§ 502.91 through 502.95 and Transferred to will be submitted to the presiding citation ‘‘§ 502.210(b)’’ and adding in its
Subpart F] officer who will issue an appropriate place the citation ‘‘§ 502.150(b)’’.
■ 12. Redesignate §§ 502.73 through decision or ruling. All such dispute Subpart J—Disclosures and Discovery
502.77 as §§ 502.91 through 502.95, resolution proceedings are subject to the
respectively, and transfer them to provisions of subpart U of this part. ■ 21. Revise the subpart J heading to
subpart F. (f) Any party may request that a read as set forth above.
settlement judge be appointed to assist ■ 22. Redesignate § 502.141 as § 502.14,
§§ 502.78 and 502.79 [Redesignated as
§§ 502.73 and 502.74] the parties in reaching a settlement. If transfer it to subpart A, and revise the
such a request or suggestion is made section heading to read as follows:
■ 13. Redesignate §§ 502.78 and 502.79
and is not opposed, the presiding officer
as §§ 502.73 and 502.74, respectively, in § 502.14 Public hearings.
subpart E. will advise the Chief Administrative
* * * * *
Law Judge who may appoint a
■ 14. Add a new § 502.75 to subpart E
settlement judge who is acceptable to all §§ 502.142 through 502.150 [Removed]
to read as follows:
parties. The settlement judge will ■ 23. Remove §§ 502.142 through
§ 502.75 Opportunity for informal convene and preside over conferences 502.150.
settlement. and settlement negotiations and will
(a) Parties are encouraged to make use report to the presiding officer within the §§ 502.201 through 502.210 [Redesignated
of all the procedures of this part that are time prescribed by the Chief as §§ 502.141 through 502.150 and
designed to simplify or avoid formal Administrative Law Judge, on the Transferred to Subpart J]
litigation, and to assist the parties in results of settlement discussions with ■ 24. Redesignate §§ 502.201 through
reaching settlements whenever it appropriate recommendations as to 502.210 as §§ 502.141 through 502.150,
appears that a particular procedure future proceedings. If settlement is respectively, and transfer them to
would be helpful. reached, it must be submitted to the subpart J.
(b) Where time, the nature of the presiding officer who will issue an
proceeding, and the public interest § 502.143 [Amended]
appropriate decision or ruling. [Rule
permit, all interested parties will have 75.] ■ 25. Amend newly redesignated
the opportunity for the submission and § 502.143:
consideration of facts, argument, offers ■ 15. Revise the newly redesignated ■ a. In paragraph (a)(1) by removing the
of settlement, or proposal of adjustment, § 502.91 to read as follows: citation ‘‘§ 502.03(a)(2)’’ and adding in
without prejudice to the rights of the its place the citation ‘‘§ 502.143(a)(2)’’;
§ 502.91 Order to show cause.
parties. ■ b. In paragraph (a)(2)(i) by removing
(c) No settlement offer, or proposal The Commission may institute a the citation ‘‘§ 502.204’’ and adding in
will be admissible in evidence over the proceeding by order to show cause. The its place the citation ‘‘§ 502.144’’;
objection of any party in any hearing on order will be served upon all persons ■ c. In paragraph (b)(2) by removing the
the matter. named therein, will include the citation ‘‘§ 502.206’’ and adding in its
(d) As soon as practicable after the information specified in § 502.221, will place the citation ‘‘§ 502.146’’;
commencement of any proceeding, the require the person named therein to ■ d. In paragraph (b)(5)(i) by removing
presiding officer will direct the parties answer, and may require such person to the citation ‘‘§ 502.202’’ and adding in
or their representatives to consider the its place the citation‘‘§ 502.142’’;
appear at a specified time and place and
use of alternative dispute resolution, ■ e. In paragraph (b)(5)(ii) by removing
present evidence upon the matters
including but not limited to mediation, the citation ‘‘§ 502.203(b)(5)(i)(A)’’ and
specified. [Rule 91.]
and may direct the parties or their adding in its place the citation
representatives to consult with the Exhibit No. 1 to Subpart F of Part 502 ‘‘§ 502.143(b)(5)(i)(A)’’;
Federal Maritime Commission [Removed] ■ f. In paragraph (c)(1) by removing the
Alternative Dispute Resolution citation ‘‘§ 502.154’’ and adding in its
Specialist about the feasibility of ■ 16. Remove reserved Exhibit No. 1 to place the citation ‘‘§ 502.202’’ and by
alternative dispute resolution. Subpart F of Part 502. removing the citation ‘‘§ 502.203(b)(3)’’
(e) Any party may request that a and adding in its place the citation
mediator or other neutral be appointed Subpart H—Service of Documents ‘‘§ 502.143(b)(3)’’;
to assist the parties in reaching a ■ g. In paragraph (c)(2) by removing the
settlement. If such a request or § 502.114 [Amended] citation ‘‘§ 502.203(d)(2)’’ and adding in
suggestion is made and is not opposed, ■ 17. Amend § 502.114(a) by removing its place the citation ‘‘§ 502.143(d)(2)’’;
Lhorne on DSK30JT082PROD with RULES
the presiding officer will appoint a ■ h. In paragraph (d)(1) by removing the
the citation ‘‘§ 502.145’’ and adding in
mediator or other neutral who is citation ‘‘§ 502.201(e)(2)’’ and adding in
its place the citation ‘‘§ 502.131’’.
acceptable to all parties, coordinating its place the citation ‘‘§ 502.141(e)’’;
with the Federal Maritime Commission § 502.118 [Removed] ■ i. In paragraph (d)(2)(ii) by removing
Alternative Dispute Resolution the citation ‘‘§ 502.201(j)’’ and adding in
Specialist. The mediator or other neutral ■ 18. Remove § 502.118. its place the citation ‘‘§ 502.141(j)’’; and
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■ j. In paragraph (e)(2) by removing the adding in its place the citation (b) The term hearing means a formal
citation ‘‘§ 502.203(f)(1)’’ and adding in ‘‘§ 502.204 of subpart L’’; adjudicatory proceeding in which
its place the citation ‘‘§ 502.143(f)(1)’’. ■ e. In paragraph (b) by removing the evidence is presented orally, or through
phrase ‘‘§ 502.202(b) and written statements, or by combination
§ 502.144 [Amended] § 502.209(d)(3)’’ and adding in its place thereof. The term oral hearing means a
■ 26. Amend newly redesignated the phrase ‘‘§ 502.142(b) and hearing at which evidence is presented
§ 502.144: § 502.149(d)(3)’’; and through oral testimony of a witness.
■ a. In paragraph (a)(2)(i) by removing ■ f. In paragraph (d)(3)(iii) by removing [Rule 201].
the citation‘‘§ 502.203’’ and adding in the citation ‘‘§ 502.204’’ and adding in
its place the citation ‘‘§ 502.143’’; its place the citation ‘‘§ 502.144’’. § 502.202 Right of parties to present
■ b. In paragraph (1)(4) by removing the evidence.
citation ‘‘§ 502.203(b)(6)’’ and adding in § 502.150 [Amended]
Every party has the right to present its
its place the citation ‘‘§ 502.143(b)(6)’’. ■ 32. Amend newly redesignated case or defense by oral or documentary
§ 502.150(a)(1) by removing the citation evidence, to submit rebuttal evidence,
§ 502.145 [Amended] ‘‘§ 502.201’’ and adding in its place the and to conduct such cross-examination
■ 27. Amend newly redesignated citation ‘‘§ 502.141’’ and by removing as may be required for a full and true
§ 502.145: the citation ‘‘§ 502.206’’ and adding in disclosure of the facts. The presiding
■ a. In paragraph (a)(1) by removing the its place the citation ‘‘§ 502.146’’. officer, however, has the right and duty
citation ‘‘§ 502.201(e)(2)’’ and adding in to limit the introduction of evidence
its place the citation ‘‘§ 502.141(e)(2)’’; §§ 502.151 through 502.169 [Removed and
reserved] and the examination and cross-
■ b. In paragraph (a)(2) by removing the
examination of witnesses when, in his
citation ‘‘§ 502.201(e) and (f)’’ and ■ 33. Remove and reserve §§ 502.151
adding in its place the citation or her judgment, such evidence or
through 502.169.
‘‘§ 502.141(e) and (f)’’ ; and examination is irrelevant, immaterial, or
■ c. In paragraph (b)(2) by removing the Subpart K [Removed and Reserved] unduly repetitious. [Rule 202.]
citation ‘‘§ 502.201(l)’’ and adding in its § 502.203 Burden of proof.
place the citation ‘‘§ 502.141(l)’’. ■ 34. Remove and reserve subpart K,
consisting of §§ 502.181 through In all cases governed by the
§ 502.146 [Amended] 502.187. requirements of the Administrative
■ 28. Amend newly redesignated ■ 35. Revise subpart L to read as Procedure Act, 5 U.S.C. 556(d), the
§ 502.146: follows: burden of proof is on the proponent of
■ a. In paragraph (a) by removing the the motion or the order. [Rule 203.]
citation ‘‘§ 502.201(e) and (f)’’ and Subpart L—Presentation of Evidence
§ 502.204 Evidence admissible.
adding in its place the citation Sec.
‘‘§ 502.141(e) and (f)’’; and 502.201 Applicability and scope. (a) In any proceeding under the rules
■ b. In paragraph (b)(2) by removing the 502.202 Right of parties to present in this part and in accordance with the
citation ‘‘§ 502.201(l)’’ and adding in its evidence. Administrative Procedure Act, all
place the citation ‘‘§ 502.141(l)’’. 502.203 Burden of proof. evidence which is relevant, material,
502.204 Evidence admissible. reliable and probative, and not unduly
§ 502.147 [Amended] 502.205 Records in other proceedings. repetitious or cumulative, will be
■ 29. Amend newly redesignated 502.206 Documents incorporated into the
record by reference.
admissible. All other evidence will be
§ 502.147(a)(3) by removing the citation excluded. The presiding officer may
502.207 Stipulations.
‘‘§ 502.201(l)’’ and adding in its place 502.208 Objection to public disclosure of consider the Federal Rules of Evidence
the citation ‘‘§ 502.141(l)’’. information. for guidance.
502.209 Prehearing conference. (b) A party who objects to a ruling of
§ 502.148 [Amended]
502.210 Prehearing statements. the presiding officer rejecting or
■ 30. Amend newly redesignated 502.211 Notice of time and place of oral
hearing; postponement of hearing. excluding proffered evidence may make
§ 502.148(a) by removing the citation
502.212 Exceptions to rulings of presiding an offer of proof. If the ruling excludes
‘‘§§ 502.202 through 502.207’’ and
officer unnecessary. proffered oral testimony, an offer of
adding in its place the citation
502.213 Official transcript. proof may consist of a statement by
‘‘§§ 502.142 through 502.147’’. 502.214 Briefs; requests for findings. counsel of the substance of the evidence
§ 502.149 [Amended] 502.215 Requests for enlargement of time that would be adduced, or in the
for filing briefs. discretion of the presiding officer,
■ 31. Amend newly redesignated 502.216 Supplementing the record.
§ 502.149: 502.217 Record of decision.
testimony of the witness. If the ruling
■ a. In paragraph (a)(1)(iii) by removing excludes documents offered as evidence
the citation ‘‘§ 502.209(a)(2) through § 502.201 Applicability and scope. or reference to documents or records,
(7)’’ and adding in its place the (a) The rules in this subpart apply to the documents or records shall be
citation‘‘§ 502.149(a)(2) through (7)’’; adjudicatory proceedings conducted marked for identification and will
■ b. In paragraph (a)(2) by removing the under the statutes administered by the constitute the offer of proof. [Rule 204.]
citation ‘‘§ 502.156 of subpart J’’ and Commission involving matters which
§ 502.205 Records in other proceedings.
adding in its place the citation require determination after notice and
‘‘§ 502.204 of subpart L’’; opportunity for hearing. Adjudicatory Portions of the record of other
■ c. In paragraph (a)(3) by removing the proceedings are formal proceedings proceedings may be received in
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phrase ‘‘§ 502.203(b)(6) or commenced upon the filing of a sworn evidence. A true copy of the records
§ 502.204(a)(4)’’ and adding in its place complaint or by Order of the sought to be admitted must be presented
the phrase ‘‘§ 502.143(b)(6) or Commission. Such proceedings will be in the form of an exhibit unless the
§ 502.144(a)(4); conducted pursuant to the presiding officer accepts the parties’
■ d. In paragraph (a)(7) by removing the Administrative Procedure Act, 5 U.S.C. stipulation that such records may be
citation ‘‘§ 502.156 of subpart J’’ and 551–559, and the rules in this subpart. incorporated by reference. [Rule 205.]
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§ 502.206 Documents incorporated into (iv) Limitation of the number of (4) Witnesses and exhibits by which
the record by reference. witnesses; disputed facts will be litigated.
Any matter contained in a document (v) The procedure to be used at the (5) A brief statement of applicable
on file with the Commission that is hearing; law.
available to the public may be received (vi) The distribution to the parties (6) The conclusion to be drawn.
in evidence through incorporation by prior to the hearing of written testimony (7) Suggested time and location of
reference without producing such and exhibits; hearing and estimated time required for
document, provided that the matter so (vii) Consolidation of the examination presentation of the party’s or parties’
offered is specified in such manner as of witnesses by counsel; case.
to be clearly identified, with sufficient (viii) Such other matters as may aid in (8) Any appropriate comments,
particularity, and readily located the disposition of the proceeding. suggestions, or information which might
electronically. [Rule 206.] (2) Prior to the hearing, the presiding assist the parties in preparing for the
officer may require exchange of exhibits hearing or otherwise aid in the
§ 502.207 Stipulations. and any other material that may disposition of the proceeding.
The parties may, and are encouraged expedite the hearing. The presiding (c) The presiding officer may, for good
to, stipulate any facts involved in the officer will assume the responsibility of cause shown, permit a party to
proceeding and include them in the accomplishing the purposes of the introduce facts or argue points of law
record with the consent of the presiding notice of prehearing conference so far as outside the scope of the facts and law
officer. A stipulation may be admitted this may be possible without prejudice outlined in the prehearing statement.
even if all parties do not agree, provided to the rights of any party. Failure to file a prehearing statement,
that any party who does not agree to the (3) The presiding officer will rule unless waiver has been granted by the
stipulation has the right to cross- upon all matters presented for decision, presiding officer, may result in
examine and offer rebuttal evidence. orally upon the record when feasible, or dismissal of a party from the
[Rule 207.] by subsequent ruling in writing. If a proceeding, dismissal of a complaint,
§ 502.208 Objection to public disclosure of party determines that a ruling made judgment against respondents, or
information. orally does not cover fully the issue imposition of such other sanctions as
(a) If any party wishes to present presented, or is unclear, such party may may be appropriate under the
confidential information or upon file a motion requesting a further ruling circumstances.
objection to public disclosure of any within ten (10) days after receipt of the (d) Following the submission of
information sought to be elicited, the transcript. prehearing statements, the presiding
requirements and procedures in § 502.5 (b) In any proceeding under the rules officer may, upon motion or otherwise,
will apply. in this part, the presiding officer hold an convene a prehearing conference for the
(b) In an oral hearing, the presiding informal conference prior to the taking purpose of further narrowing issues and
officer may in his or her discretion order of testimony, or may recess the hearing limiting the scope of the hearing if, in
that a witness will disclose such for such a conference, with a view to his or her opinion, the prehearing
information only in the presence of the carrying out the purposes of this statements indicate lack of dispute of
parties and those designated and section. material fact not previously
authorized by the presiding officer. Any (c) At any prehearing conference, acknowledged by the parties or lack of
transcript of such testimony will be held consideration may be given to whether legitimate need for cross-examination
confidential to the extent the presiding the use of alternative dispute resolution and is authorized to issue appropriate
officer determines. Copies of transcripts would be appropriate or useful for the orders consistent with the purposes
will be served only to authorized parties disposition of the proceeding whether stated in this section. [Rule 210.]
or their representatives or other parties or not there has been previous
as the presiding officer may designate. consideration of such use. [Rule 209.] § 502.211 Notice of time and place of oral
(c) Any information given pursuant to hearing; postponement of hearing.
§ 502.210 Prehearing statements. (a) The notice of an oral hearing will
this section may be used by the
presiding officer or the Commission if (a) Unless a waiver is granted by the designate the time and place the person
deemed necessary to a correct decision presiding officer, it is the duty of all or persons who will preside, and the
in the proceeding. [Rule 208.] parties to a proceeding to prepare a type of decision to be issued. The date
statement or statements at a time and in or place of a hearing for which notice
§ 502.209 Prehearing conference. the manner to be established by the has been issued may be changed when
(a)(1) Prior to any hearing, the presiding officer provided that there has warranted. Reasonable notice will be
Commission or presiding officer may been reasonable opportunity for given to the parties or their
direct all interested parties, by written discovery. To the extent possible, joint representatives of the time and place of
notice, to attend one or more prehearing statements should be prepared. the change thereof, due regard being had
conferences for the purpose of (b) The prehearing statement must for the public interest and the
considering any settlement under state the name of the party or parties on convenience and necessity of the parties
§ 502.91, formulating the issues in the whose behalf it is presented and briefly or their representatives. Notice may be
proceeding, and determining other set forth the following matters, unless served by mail, facsimile transmission,
matters to aid in its disposition. In otherwise ordered by the presiding or electronic mail.
addition to any offers of settlement or officer: (b) Motions for postponement of any
proposals of adjustment, the following (1) Issues involved in the proceeding. hearing date must be filed in accordance
may be considered: (2) Facts stipulated pursuant to the with § 502.104. [Rule 211.]
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(i) Simplification of the issues; procedures together with a statement
(ii) The necessity or desirability of that the party or parties have § 502.212 Exceptions to rulings of
amendments to the pleadings; communicated or conferred in a good presiding officer unnecessary.
(iii) The possibility of obtaining faith effort to reach stipulation to the A formal exception to a ruling or
admissions of fact and of documents fullest extent possible. order is unnecessary. When the ruling
that will avoid unnecessary proof; (3) Facts in dispute. or order is requested or made, the party
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doing so need only state the action that § 502.214 Briefs; requests for findings. the course of the hearing, or subsequent
it wants the presiding officer to take or (a) The presiding officer will thereto, if the proceeding is still before
that it objects to, along with the grounds determine the time and manner of filing him or her, except where the presiding
for the request or objection. Failing to briefs and any enlargement of time. officer finds it necessary to allow an
object does not prejudice a party who (b) Briefs will be served upon all appeal to the Commission to prevent
had no opportunity to do so when the parties pursuant to subpart H of this substantial delay, expense, or detriment
ruling or order was made. [Rule 212.] part. to the public interest, or undue
(c) Unless otherwise ordered by the prejudice to a party.
§ 502.213 Official transcript. presiding officer, opening or initial
(a) The Commission will designate the briefs must contain the following (b) Any party seeking to appeal must
official reporter for all hearings. The matters in separately captioned sections: file a motion for leave to appeal no later
official transcript of testimony taken, (1) Introductory section describing the than fifteen (15) days after written
together with any exhibits and any nature and background of the case; service or oral notice of the ruling in
briefs or memoranda of law filed (2) Proposed findings of fact in question, unless the presiding officer,
therewith, will be filed with the serially numbered paragraphs with for good cause shown, enlarges or
Commission. Transcripts of testimony reference to exhibit numbers and pages shortens the time. Any such motion
will be available in any proceeding of the transcript; must contain the grounds for leave to
under the rules in this part, at actual (3) Argument based upon principles appeal and the appeal itself.
cost of duplication. of law with appropriate citations of the (c) Replies to the motion for leave to
(b)(1) Where the Commission does not authorities relied upon; and
appeal and the appeal may be filed
request daily copy service, any party (4) Conclusions.
(d) All briefs must contain a subject within fifteen (15) days after date of
requesting such service must bear the
incremental cost of transcription above index or table of contents with page service thereof, unless the presiding
the regular copy transcription cost borne references and a list of authorities cited. officer, for good cause shown, enlarges
by the Commission, in addition to the (e) All briefs filed pursuant to this or shortens the time. If the motion is
actual cost of duplication. Where the section must ordinarily be limited to granted, the presiding officer must
requesting party applies for and eighty (80) pages in length, exclusive of certify the appeal to the Commission.
demonstrates that the furnishing of pages containing the table of contents, (d) Unless otherwise provided, the
daily copy is indispensable to the table of authorities, and certificate of certification of the appeal will not
protection of a vital right or interest in service, unless the presiding officer operate as a stay of the proceeding
achieving a fair hearing, the presiding allows the parties to exceed this limit before the presiding officer.
officer in the proceeding in which the for good cause shown and upon
application filed not later than seven (7) (e) The provisions of § 502.10 do not
application is made will order that daily apply to this section. [Rule 221.]
copy service be provided the requesting days before the time fixed for filing of
party at the actual cost of duplication, such a brief or reply. [Rule 214.] § 502.222 [Removed and Reserved]
with the full cost of transcription being § 502.215 Requests for enlargement of
borne by the Commission. time for filing briefs. ■ 38. Remove and reserve § 502.222.
(2) In the event a request for daily Requests for enlargement of time to ■ 39. Revise § 502.230 to read as
copy is denied by the presiding officer, file briefs must conform to the follows:
the requesting party, in order to obtain requirements of § 502.102. [Rule 215.]
daily copy, must pay the cost of § 502.230 Reopening by Commission.
transcription over and above that borne § 502.216 Supplementing the record.
by the Commission, i.e., the incremental (a) Reopening by the Commission.
A motion to supplement the record,
cost between that paid by the pursuant to § 502.69, should be filed if After an initial decision by the presiding
Commission when it requests regular submission of evidence is desired after officer, or in a matter otherwise pending
copy and when it requests daily copy. the parties’ presentation in a before the Commission, but before
The decision of the presiding officer in proceeding, but before issuance by the issuance of a Commission decision, the
this situation is interpreted as falling presiding officer of an initial decision. Commission may, after petition and
within the scope of the functions and [Rule 216.] reply in conformity with paragraphs (b)
powers of the presiding officer, as and (c) of this section, or upon its own
defined in § 502.25(a). § 502.217 Record of decision. motion, reopen a proceeding for the
(c) Motions made at the hearing to The transcript of testimony and purpose of taking further evidence.
correct the transcript will be acted upon exhibits, together with all filings and (b) Motion to reopen. A motion to
by the presiding officer. Motions made motions filed in the proceeding, will reopen shall be served in conformity
after an oral hearing to correct the constitute the exclusive record for with the requirements of subpart H and
record must be filed with the presiding decision. [Rule 217.] will set forth the grounds requiring
officer within twenty-five (25) days after reopening of the proceeding, including
the last day of hearing or any session Subpart M—Decisions; Appeals;
Exceptions material changes of fact or law alleged
thereof, unless otherwise directed by the to have occurred.
presiding officer, and must be served on ■ 36. Revise the subpart M heading to
all parties. If no objections are received (c) Reply. Within ten (10) days
read as set forth above. following service of a motion to reopen,
within ten (10) days after date of
■ 37. Revise § 502.221 to read as any party may reply to such motion.
service, the transcript will, upon
follows:
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approval of the presiding officer, be (d) Remand by the Commission.
changed to reflect such corrections. If § 502.221 Appeal from ruling of presiding Nothing contained in this rule precludes
objections are received, the motion will officer other than orders of dismissal in the Commission from remanding a
be acted upon with due consideration of whole or in part. proceeding to the presiding officer for
the stenographic record of the hearing. (a) Rulings of the presiding officer the taking of addition evidence or
[Rule 213.] may not be appealed prior to or during determining points of law. [Rule 230.]
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![93840 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations
By the Commission. following clauses; however, this Review, dated September 30, 1993. This
Rachel E. Dickon, revision does not impact the clause rule is not a major rule under 5 U.S.C.
Assistant Secretary. prescriptions for use, or applicability at 804.
[FR Doc. 2016–30745 Filed 12–21–16; 8:45 am] or below the simplified acquisition
V. Regulatory Flexibility Act
BILLING CODE 6731–AA–P
threshold, or applicability to
commercial items. The clauses are: The Regulatory Flexibility Act does
DFARS 252.225–7001, Buy American not apply to this rule because this final
and Balance of Payments Program; rule does not constitute a significant
DEPARTMENT OF DEFENSE DFARS revision within the meaning of
DFARS 252.225–7002, Qualifying
Defense Acquisition Regulations Country Sources as Subcontractors; FAR 1.501–1, and 41 U.S.C. 1707 does
System DFARS 252.225–7012, Preference for not require publication for public
Certain Domestic Commodities; DFARS comment.
48 CFR Parts 225 and 252 252.225–7017, Photovoltaic Devices;
VI. Paperwork Reduction Act
DFARS 252.225–7021, Trade
[Docket DARS–2016–0048] Agreements; and DFARS 252.225–7036, The Paperwork Reduction Act (44
Buy American—Trade Agreements— U.S.C. chapter 35) does apply to this
RIN 0750–AJ18
Balance of Payments Program. rule; however, these changes to the
Defense Federal Acquisition DFARS do not impose additional
III. Publication of This Final Rule for information collection requirements to
Regulation Supplement: New Public Comment Is Not Required by
Qualifying Country—Estonia (DFARS the paperwork burden previously
Statute approved under OMB Control Number
Case 2017–D001)
The statute that applies to the 0704–0229, entitled ‘‘DFARS Part 225,
AGENCY: Defense Acquisition publication of the Federal Acquisition Foreign Acquisition and related
Regulations System, Department of Regulation (FAR) is 41 U.S.C. 1707 clauses.’’ This rule merely shifts the
Defense (DoD). entitled ‘‘Publication of Proposed category under which items from
ACTION: Final rule. Regulations.’’ Paragraph (a)(1) of the Estonia must be listed.
statute requires that a procurement
SUMMARY: DoD is issuing a final rule policy, regulation, procedure or form List of Subjects in 48 CFR Parts 225 and
amending the Defense Federal (including an amendment or 252
Acquisition Regulation Supplement modification thereof) must be published Government procurement.
(DFARS) to add Estonia as a qualifying for public comment if it relates to the
Jennifer L. Hawes,
country. expenditure of appropriated funds, and
has either a significant effect beyond the Editor, Defense Acquisition Regulations
DATES: Effective December 22, 2016. System.
internal operating procedures of the
FOR FURTHER INFORMATION CONTACT: Ms. ■ Therefore, 48 CFR parts 225 and 252
agency issuing the policy, regulation,
Lorena Malcolm, telephone 571–372– are amended as follows:
procedure or form, or has a significant
6176. ■ 1. The authority citation for 48 CFR
cost or administrative impact on
SUPPLEMENTARY INFORMATION: contractors or offerors. This final rule is parts 225 and 252 continues to read as
not required to be published for public follows:
I. Background
comment, because it does not constitute Authority: 41 U.S.C. 1303 and 48 CFR
DoD is amending the DFARS to add a significant DFARS revision within the chapter 1.
Estonia as a qualifying country. On meaning of FAR 1.501–1 and does not
September 23, 2016, the Secretary of have a significant cost or administrative PART 225—FOREIGN ACQUISITION
Defense signed a reciprocal defense impact on contractors or offerors.
225.003 [Amended]
procurement agreement with Estonia. Estonia is added to the list of 25 other
The agreement removes discriminatory countries that have similar reciprocal ■ 2. Section 225.003 is amended in
barriers to procurements of supplies and defense procurement agreements with paragraph (10), the definition of
services produced by industrial DoD. These requirements affect only the ‘‘Qualifying country’’, by adding, in
enterprises of the other country to the internal operating procedures of the alphabetical order, the country of
extent mutually beneficial and Government. ‘‘Estonia’’.
consistent with national laws, 225.872–1 [Amended]
regulations, policies, and international IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and ■ 3. Section 225.872–1 is amended in
obligations. This agreement does not
13563 direct agencies to assess all costs paragraph (a) by adding, in alphabetical
cover construction or construction
and benefits of available regulatory order, the country of ‘‘Estonia’’.
material. Estonia is already a designated
country under the World Trade alternatives and, if regulation is PART 252—SOLICITATION
Organization Government Procurement necessary, to select regulatory PROVISIONS AND CONTRACT
Agreement. approaches that maximize net benefits CLAUSES
(including potential economic,
II. Applicability to Contracts at or environmental, public health and safety 252.225–7001 [Amended]
Below the Simplified Acquisition effects, distributive impacts, and ■ 4. Section 252.225–7001 is amended
Threshold and for Commercial Items, equity). E.O. 13563 emphasizes the by—
Including Commercially Available Off- importance of quantifying both costs ■ a. In the clause heading, removing the
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the-Shelf Items and benefits, of reducing costs, of date ‘‘(AUG 2016)’’ and adding ‘‘(DEC
This rule only updates the list of harmonizing rules, and of promoting 2016)’’ in its place;
qualifying countries in the DFARS by flexibility. This is not a significant ■ b. In paragraph (a), the definition of
adding the newly qualifying country of regulatory action and, therefore, was not ‘‘Qualifying country’’, adding, in
Estonia. The definition of ‘‘qualifying subject to review under section 6(b) of alphabetical order, the country of
country’’ is updated in each of the E.O. 12866, Regulatory Planning and ‘‘Estonia’’; and
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Document Created: 2016-12-21 23:52:25
Document Modified: 2016-12-21 23:52:25
| 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 | Rules and Regulations | |
| Action | Final rule | |
| Dates | Effective January 27, 2016. | |
| Contact | Rachel E. Dickon, Assistant Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001. Phone: (202) 523-5725. Email: [email protected] | |
| FR Citation | 81 FR 93831 | |
| RIN Number | 3072-AC64 | |
| CFR Associated | 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 and Trade Practices |
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