[Federal Register Volume 63, Number 231 (Wednesday, December 2, 1998)]
[Proposed Rules]
[Pages 66512-66521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31856]
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FEDERAL MARITIME COMMISSION
46 CFR Parts 502, 545 and 571
[Docket No. 98-21]
Miscellaneous Amendments to Rules of Practice and Procedure
AGENCY: Federal Maritime Commission.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: The Federal Maritime Commission intends to make corrections
and changes to existing regulations to update and improve them, and to
conform them to and implement the Ocean Shipping Reform Act of 1998. At
the same time, the Commission is restructuring all of its rules and
regulations. (See Tables herein.) This proposed rule would modify part
502 (Rules of Practice and Procedure) and part 571 (to be redesignated
as part 545) (Interpretations and Statements of Policy).
DATES: Submit comments on or before January 4, 1999.
ADDRESSES: Address all comments concerning this proposed rule to:
Joseph C. Polking, Secretary, Federal Maritime Commission, 800 North
Capitol St., N.W., Room 1046, Washington, D.C., 20573-0001.
FOR FURTHER INFORMATION CONTACT: Joseph C. Polking, Secretary, Federal
Maritime Commission, 800 North Capitol St., N.W., Room 1046,
Washington, D.C. 20573-0001 (202) 523-5725, E-mail: secretary@fmc.gov.
SUPPLEMENTARY INFORMATION:
The Ocean Shipping Reform Act of 1998 (``OSRA''), Pub. L. 105-258,
112 Stat. 1902, which made numerous changes to the Shipping Act of 1984
(``1984 Act''), Pub. L. 98-237, 98 Stat. 67 (46 U.S.C. app. secs. 1701
through 1720), was enacted on October 14, 1998, and becomes effective
on May 1, 1999. Among other things, OSRA authorizes the Commission to
prescribe implementing rules and regulations. Accordingly, the Federal
Maritime Commission (hereinafter referred to as the Commission) must
conform all of its rules and regulations to this new statute.
In addition to changes required by OSRA, other changes will be made
to improve various rules and to bring them in line with current
practices, guidelines and organization. This approach will provide the
Commission and the industry with the opportunity to review the
Commission's rules and regulations related to ocean shipping. This
review process should ultimately result in a more useful realignment of
Chapter IV of Title 46 of the CFR.
[[Page 66513]]
The Commission takes this opportunity to inform the public of its
intended general reorganization of parts 500-588. As realigned, the
Commission's rules will be contained in three Subchapters. Subchapter A
will continue to set forth general and administrative provisions.
Subchapter B will contain all of the Commission's basic regulations
concerning operations in the U.S. foreign commerce. Subchapter C will
be set aside to cover matters involving the restrictive maritime
practices of foreign governments and controlled carriers. Subchapter D
will be removed. All rule changes will become effective May 1, 1999. An
outline of the foregoing is set forth in the following tables:
Federal Maritime Commission--46 CFR, Chapter IV.--Redesignation and
Distribution Table
------------------------------------------------------------------------
Old part or section (Sec. ) New part or section (Sec. )
------------------------------------------------------------------------
500...................................... 508.
501...................................... 501.
502...................................... 502.
Sec. 502.92 (Special Dockets)........... Sec. 502.271.
503...................................... 503.
504...................................... 504.
505...................................... 505.
506...................................... 506.
507...................................... 507.
510...................................... 515.
Sec. 510.25 & Sec. 514.1(c)(1)(iii) To be removed.
(Anti-rebate Certification).
514...................................... 520, 525, & 565.
Sec. 514.7 & Sec. 514.17 (Service 530.
Contracts).
540...................................... 540.
571...................................... 545.
572...................................... 535.
Sec. 572.301 (Agreement Exemptions)..... Sec. 502.67 (All
exemptions).
582...................................... To be removed.
583...................................... 515.
585...................................... 550.
586...................................... 551.
587...................................... 560.
588...................................... 555.
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Federal Maritime Commission--46 CFR, Chapter IV.--Derivation Table
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New part Old part
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(Subchapter A--General and Administrative Provisions)
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501.................................... 501.
502.................................... 502.
503.................................... 503.
504.................................... 504.
505.................................... 505.
506.................................... 506.
507.................................... 507.
508.................................... 500.
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(Subchapter B--Regulations Affecting Ocean Shipping in Foreign Commerce)
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515.................................... 510, 583.
520.................................... 514.
525.................................... 514.
530.................................... 514.
535.................................... 572.
540.................................... 540.
545.................................... 571.
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(Subchapter C--Regulations and Actions to Address Restrictive Foreign
Maritime Practices)
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550.................................... 585.
551.................................... 586.
555.................................... 588.
560.................................... 587.
565.................................... (Controlled
Carriers--New).
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In addition to providing notice of the Commission's intent to
reorganize its rules, this notice of proposed rulemaking proposes
various amendments to Parts 502 and 571. Changes to other parts of the
Commissions' rules will be the subject of future notices of proposed
rulemaking.
The OSRA, among other things, modified section 8(e) of the 1984 Act
by adding authority for the Commission, upon application, to grant
refund and waiver of tariff charges for errors in quoting a tariff, and
eliminating tariff filing at the Commission, instead requiring common
carriers to publish tariffs and make them electronically available. The
OSRA also modified the standards for exemption from requirements of the
1984 Act, and changed its provisions prohibiting the refusal to
negotiate with a shipper's association. In addition, the Commission's
Rules of Practice and Procedure, located currently at 46 CFR 502,
contain references to statutes no longer within the purview of the
Commission, certain provisions are in need of modernization and
clarification, and the Commission desires to change certain other
provisions. The Commission now proposes to make the following
modifications to Parts 502 and 571 to reflect statutory changes, and to
clarify, reorganize, modernize, and improve its rules of practice and
procedure. The proposed modifications will be addressed seriatim.
The authority citation would be modified to drop references to the
Shipping Act, 1916 (``1916 Act''), responsibility for which has been
transferred to the Surface Transportation Board (``STB'') within the
Department of Transportation, and to list OSRA, Public Law 105-258, as
an authority for Part 502. Similarly, Sec. 502.1 would be modified to
drop references to the 1916 Act and the Intercoastal Shipping Act, 1933
(``1933 Act''), responsibility for which also has been transferred to
the STB.
To improve structure, current Sec. 502.11(a) would be moved and
become new Sec. 502.2(e), thus leaving Sec. 502.11 to deal only with ex
parte communications. Also, the heading of Sec. 502.21(c) would be
changed to better reflect its subject matter, i.e., special appearance.
Section 502.23 would be restructured for simplification purposes,
and modernized to replace references to telephone calls and telegrams
with references to facsimile and e-mail. Exhibit No. 1 to subpart B of
Part 502 would similarly be modified. Also, proposed Sec. 502.23(d)
would accommodate requests by attorneys to withdraw from representing a
client. Some recent proceedings have involved issues concerning
attempts by counsel to withdraw from representation. Current
Sec. 502.23 provides for substitution of counsel, but is silent with
respect to withdrawal of counsel.
Section 502.24 would be modified to delete reference to field
offices, since the Commission no longer has any field offices.
Section 502.26 would be modified to incorporate the standards of
conduct set forth in the American Bar Association's Model Rules of
Professional Conduct as the standards to govern conduct of attorneys
practicing before the Commission.
Changes are proposed to Sec. 502.42 to reflect the fact that the
Director, Bureau of Enforcement, is not necessarily a party to
proceedings involving petitions, small claim proceedings, and special
docket proceedings.
For clarification purposes, Sec. 502.51 would be modified to
reflect that rulemaking proceedings may be initiated on the
Commission's own motion, as well as by petition. Also, a new paragraph
would be added to Sec. 502.62 to point out the requirement in
Sec. 502.201(b) that discovery be commenced with the filing of a
complaint.
Section 502.63 would be modified for clarification by revising the
section heading, as well as deleting references to the 1916 Act.
Section 502.64 would be revised to explicitly require answers
[[Page 66514]]
to be verified, in conformity with Exhibit 1 to Subpart E.
A new rule, Sec. 502.67, would set forth the exemption procedures
under the OSRA, which amended the exemption standard by eliminating
inquiries as to whether a proposed exemption would ``substantially
impair effective regulation'' or would ``be unjustly discriminatory.''
The new standard looks only at whether the proposed exemption would
``result in substantial reduction in competition'' or would ``be
detrimental to commerce.'' If not, then the Commission may determine to
grant the exemption. New Sec. 502.67 is substantially similar to old
Sec. 572.301, but applies to all exemption applications, rather than
solely to agreement exemption applications.
References to the 1916 Act would be deleted from Sec. 502.75 and
Exhibit 1 to Subpart E.
The Commission's special docket rules, currently at Sec. 502.92,
and Exhibit 1 to Subpart F would be moved to Subpart Q, and modified to
reflect changes in the new OSRA.
Sections 502.102, 502.104, 502.105 and 502.112 are being revised
for simplification purposes, while Sec. 502.111 is modernized to
reflect the use of modern technology, including facsimile transmission
of documents.
Proposed changes to Sec. 502.113 would provide a procedure for
service of a complaint by complainants when the Commission's Secretary
has been unable to obtain service by mail. The presiding officer would
also have discretion to dismiss any complaint when service has not been
obtained within thirty days after filing the complaint. There have been
occasions where the Secretary could not obtain service by mail, and the
proposed change would codify the current practice of allowing
complainants the option of effecting service in lieu of service by the
Secretary.
Section 502.114 would be simplified and modernized by allowing for
facsimile service upon agreement between parties, and would also revise
a citation to conform with changes made by the OSRA. Correspondingly,
Sec. 502.116 would allow for service by facsimile.
A modification to Sec. 502.118 would add notices of appearance to
the types of filings requiring submission of an original and four
copies, thus codifying existing practice. Section 502.119 would be
restructured for simplification.
The provision regarding attendance and mileage fees in Sec. 502.133
would be revised to apply also to witnesses summoned to a deposition,
thus bringing the provision into conformity with Rule 45 of the Federal
Rules of Civil Procedure. In Sec. 502.143, a citation error would be
corrected, while Sec. 502.144 would be modernized to reflect the
possibility of notice by facsimile or e-mail and to clarify that filing
of motions for postponement of a hearing would be governed by
Sec. 502.104.
Section 502.146 would be updated to add service of complaints filed
under shortened procedure, Sec. 502.182, and referral of claims under
Subpart T as events that trigger commencement of the functions of the
Administrative Law Judges. Similarly, Subpart T would be added as to
functions under Sec. 502.147. A reference to the 1933 Act is also
removed from Sec. 502.147.
In Subpart L, modifications would be made to Sec. 502.201 for
clarification and to delete reference to the 1916 Act.
A fifty page limitation on the size of briefs would be imposed for
briefs filed under Sec. 502.221, as well as for briefs on exceptions
and appeals under Sec. 502.227. This limitation tracks the Federal
Rules of Appellate Procedure. The presiding officer or the Commission,
as the case may be, would have the discretion to allow parties to
exceed these limits.
Sections 502.223 and 502.225 would be amended to prescribe separate
content requirements for decisions by the Administrative Law Judges and
decisions by the Commission. Initial or recommended decisions by the
Administrative Law Judges would include numbered statements of findings
and conclusions, and would be limited to issues necessary to resolution
of material issues. The content requirements for final decisions by the
Commission would remain unchanged.
A new Sec. 502.227(a)(4) would be added to make clear that initial
decisions and dismissals by an administrative law judge that have
become final are not appealable to a court by a party unless that party
has filed exceptions or an appeal with the Commission as provided in
Sec. 502.227. The Supreme Court in Darby v. Cisneros, 509 U.S. 137
(1993), determined that the judicially created doctrine of exhaustion
of administrative remedies is restricted by Section 10(c) of the
Administrative Procedure Act, 5 U.S.C. 701 et. seq. Under this ruling,
a court may hear an appeal of an initial decision even without the
plaintiff having first exhausted administrative remedies by filing
exceptions, unless the agency has, by rule, required that such an
appeal be filed with the agency before a court appeal may be filed. The
proposed change would provide such a requirement.
The Commission's rule on interest, Sec. 502.253 would be modified
to delete reference to the 1916 Act and the 1933 Act. The rule for
obtaining attorney's fees, Sec. 502.254 would be modified to enable the
awarding of attorney's fees in small claim proceedings. Currently,
Sec. 502.254 excepts small claims proceedings under Subpart S from the
award of attorney's fees, but the language of section 11(g) of the 1984
Act requires award of attorney's fees in all cases where reparations
are awarded.
Subpart Q would be revised to eliminate the current listing of
schedules and forms, as it is duplicative. The Commission's special
docket rule would be moved from Sec. 502.92 to Subpart Q, and modified
to reflect new provisions in the OSRA allowing refund or waiver of
tariff charges for errors in quoting charges. The Commission proposes
to expedite its special docket procedures by providing that decisions
by deciding officials will become final within ten days, unless
exceptions are filed or the Commission determines to review such
decision. Currently, decisions are not final for thirty days, and
parties may file exceptions within twenty-two days of the decision.
Since the filing of exceptions to or review by the Commission of
special docket decisions are rare, current procedures inordinately
delay the finality of a decision. Also, the revised application form,
Exhibit No. 1 to Subpart Q, would require submission of the date a
shipment was received. This is important since the date a shipment is
received is the date for determining the applicable tariff charges. The
application form would also require proof in the form of an affidavit
and other available evidence if the application is based on a misquote.
Finally, minor changes would also be made to Sec. 502.271 and Exhibit
No. 1 to Subpart Q to, among other things, simplify directions,
substitute ``tariff materials'' for outdated referrals to ``tariff
pages,'' replace tariff ``filing'' references with tariff
``publishing'', and eliminate provisions concerning the 1916 Act.
Regarding small claim proceedings under Subpart S, Secs. 502.301
and 502.302 would be revised to delete provisions relating to the 1916
Act and the 1933 Act, while Sec. 502.305 would be revised so that the
Commission's rules on awards of interest and attorney's fees apply to
small claims proceedings. Moreover, references to the 1916 and 1933
Acts would be removed from the information provisions of Exhibit No. 1
to Subpart S. Similarly, references to the 1916 and 1933 Acts would be
removed from Sec. 502.401.
[[Page 66515]]
In Subpart V, Sec. 502.501 would be updated to reflect 1996
amendments to the Equal Access to Justice Act.
In Subpart W, references to the 1916 Act and the 1933 Act would be
deleted from Secs. 502.601 and 502.602. Section 502.604 would be
modified to provide for delivery by means other than registered or
certified mail of a Notice and Demand Letter affording an opportunity
for compromise of a civil penalty. Section 502.605 would be revised to
remove provisions for a promissory note as a means of effecting payment
of penalties.
The Ocean Shipping Reform Act deleted Sec. 10(b)(13) of the 1984
Act, which had prohibited common carriers from refusing to negotiate
with a shippers' association and replaced it with a new section
10(b)(10) to prohibit the unreasonable refusal to deal or negotiate. In
Part 571, Sec. 571.1 was based in part upon the now deleted
Sec. 10(b)(13). The Commission therefore proposes to redesignate Part
571 as Part 545, and to amend new Sec. 545.1 to delete reference to
former Sec. 10(b)(13) and to refer to new Sec. 10(b)(10).
The proposed rule contains no additional information collection or
record keeping requirements and need not be submitted to OMB for
approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
The Chairman certifies, pursuant to 5 U.S.C. 605, that the proposed
rule would not have a significant impact on a substantial number of
small entities. The amendments will either have no affect on small
entities, or in the case where the amendments are likely to impact
small entities, the economic impact will be de minimis.
List of Subjects
46 CFR Part 502
Administrative practice and procedure, Claims, Equal access to
justice, Investigations, Lawyers, Maritime carriers, Penalties,
Reporting and recordkeeping requirements.
46 CFR Parts 545 and 571
Antitrust, Maritime carriers.
For the reasons stated in the preamble, the Federal Maritime
Commission proposes to amend 46 CFR parts 502, 545 and 571 as follows:
PART 502--RULES OF PRACTICE AND PROCEDURE
1. The authority citation for part 502 is revised to read as
follows:
Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569,
571-596; 12 U.S.C. 1141j(a); 18 U.S.C. 207; 26 U.S.C. 501(c)(3); 28
U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. app. 1114(b), 1705, 1707-
1711, 1713-1716; E.O. 11222 of May 8, 1965 (30 FR 6469); 21 U.S.C.
853a; Pub. L. 105-258; and Pub. L. 88-777 (46 U.S.C. app. 817d,
817e).
2. Amend Sec. 502.1 as follows:
a. Revise the first sentence of Sec. 502.1 to read as set forth
below;
b. Move ``[Rule 1.]'' to the end of the section.
Sec. 502.1 Scope of rules in this part.
The rules in this part govern procedure before the Federal Maritime
Commission, hereinafter referred to as the ``Commission,'' under the
Merchant Marine Act, 1920, Merchant Marine Act, 1936, Shipping Act of
1984, as amended by the Ocean Shipping Reform Act of 1998,
Administrative Procedure Act, and related acts, except that subpart R
of this part does not apply to proceedings subject to sections 7 and 8
of the Administrative Procedure Act, which are to be governed only by
subparts A to Q inclusive, of this part. * * *
3. Amend Sec. 502.2 to read as follows:
a. In the text of paragraph (c) revise ``Sec. 502.11(b)'' to read
``Sec. 502.11.''
b. In paragraph (d) remove ``[Rule 2.]'
c. Add paragraph (e) to read as follows:
Sec. 502.2 Filing of documents; hours; mailing address.
* * * * *
(e) Any pleading, document, writing or other paper submitted for
filing which is rejected because it does not conform to the rules in
this part shall be returned to the sender. [Rule 2.]
4. Amend Sec. 502.11 as follows:
a. Revise section heading to read as set forth below;
b. Remove paragraph (a).
c. Redesignate paragraphs (b)(1) through (b)(7) as paragraphs (a)
through (g).
Sec. 502.11 Ex parte communications.
* * * * *
Sec. 502.12 [Amended]
5. In Sec. 502.12, add ``[Rule 12.]'' to the end of the text.
6. In Sec. 502.21, revise the paragraph heading in paragraph (c) to
read as follows:
Sec. 502.21 Appearance.
* * * * *
(c) Special appearance. * * *
7. Revise Sec. 502.23 to read as follows:
Sec. 502.23 Notice of appearance; substitution and withdrawal of
representative.
(a) Upon filing of a complaint instituting proceedings or filing of
an answer to an order or complaint, the party filing shall notify the
Commission of the name(s) and address(es) of the person or persons who
will represent them in the pending proceeding. Each person who appears
at a hearing shall deliver a written notice of appearance to the
reporter, stating for whom the appearance is made. Such notice shall
indicate whether the representative wishes to be notified of decisions
by telephone, facsimile transmission, or electronic mail. All
appearances shall be noted in the record. Petitions for leave to
intervene shall indicate the name(s) and address(es) of the person or
persons who will represent the intervenor in the pending proceeding if
the petition is granted.
(b) A Notice of Appearance should follow the form set forth in
Exhibit No. 1 to this subpart.
(c) If an attorney or other representative of record is superseded,
there shall be filed a stipulation of substitution signed both by the
attorney(s) or representative(s) and by the party, or a written notice
from the party to the Commission.
(d) If an attorney wishes to withdraw from representing a party,
such attorney shall file an appropriate motion seeking permission to
withdraw and provide appropriate reasons for making the motion. Such
motion will be decided in consideration of the factors and standards
set forth in Rule 1.16 of the American Bar Association's Model Rules of
Professional Conduct and by the courts.
8. Revise Sec. 502.24(b) to read as follows:
Sec. 502.24 Practice before the Commission defined.
* * * * *
(b) The term ``Commission'' as used in this subpart includes any
bureau, division, office, branch, section, or unit of the Federal
Maritime Commission and any officer or employee of such bureau,
division, office, branch, section, or unit. [Rule 24.]
9. Revise Sec. 502.26, to read as follows:
Sec. 502.26 Attorneys at law.
Attorneys at law who are admitted to practice before the Federal
courts or before the courts of any State or Territory of the United
States may practice before the Commission. An attorney must represent
in writing, filed with the Secretary, that he is admitted to practice
and in good standing. An attorney practicing before the Commission is
expected to conform to the standards of conduct set forth in the
American Bar Association's Model Rules of Professional Conduct in
[[Page 66516]]
addition to the specific requirements of this chapter. [Rule 26.]
Sec. 502.27 [Amended]
10. In Sec. 502.27(a)(1) correct ``Sec. 503.43(h)'' to read
``Sec. 503.43(g).''
11. Revise Exhibit No. 1 to Subpart B as follows:
Exhibit No. 1 to Subpart B
Federal Maritime Commission
Notice of Appearance
Docket No. ____________________:
Please enter my appearance in this proceeding as counsel for
____________________.
I request to be informed of service of the administrative law
judge's initial or recommended decision and of the Commission's
decision in this proceeding by:
[ ] telephone (In the event that I am not available when you call,
appropriate advice left with my office will suffice.)
[ ] facsimile transmission
[ ] electronic mail
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[Name]
----------------------------------------------------------------------
[Address]
----------------------------------------------------------------------
[Telephone No.]
----------------------------------------------------------------------
[Fax No.]
----------------------------------------------------------------------
[E-mail address]
----------------------------------------------------------------------
[Signature]
12. Revise Sec. 502.42 to read as follows:
Sec. 502.42 Bureau of Enforcement.
The Director, Bureau of Enforcement, shall be a party to all
proceedings governed by the rules in this part except that in complaint
proceedings under Sec. 502.62, the Director may become a party only
upon leave to intervene granted pursuant to Sec. 502.72, in rulemaking
proceedings and in proceedings considering petitions the Director may
become a party by designation if the Commission determines that the
circumstances of the proceeding warrant such participation, and the
Director will not ordinarily be a party to small claims proceedings
under Sec. 502.304 and special docket proceedings under Sec. 502.271.
The Director or the Director's representative shall be served with
copies of all papers, pleadings, and documents in every proceeding in
which the Bureau of Enforcement is a party. The Bureau of Enforcement
shall actively participate in any proceeding to which the Director is a
party, to the extent required in the public interest, subject to the
separation of functions required by section 5(c) of the Administrative
Procedure Act. (See Sec. 502.224). [Rule 42.]
13. Revise Sec. 502.51 to read as follows:
Sec. 502.51 Initiation of procedure to issue, amend, or repeal a rule.
(a) By petition. Any interested party may file with the Commission
a petition for the issuance, amendment, or repeal of a rule designed to
implement, interpret, or prescribe law, policy, organization,
procedure, or practice requirements of the Commission. The petition
shall set forth the interest of petitioner and the nature of the relief
desired, shall include any facts, views, arguments, and data deemed
relevant by petitioner, and shall be verified. If such petition is for
the amendment or repeal of a rule, it shall be accompanied by proof of
service on all persons, if any, specifically named in such rule, and
shall conform in other aspects to Subpart H of this part. Petitions
shall be accompanied by remittance of a $177 filing fee. Replies to
such petition shall conform to the requirements of Sec. 502.74.
(b) By the Commission. The Commission on its own initiative may
initiate the issuance, amendment, or repeal of a rule through notice of
proposed rulemaking or advanced notice of proposed rulemaking. [Rule
51.]
Sec. 502.56 [Amended]
14. In Sec. 502.56, add ``[Rule 56.]'' at the end of the text.
Sec. 502.61 [Amended]
15. In Sec. 502.61, add ``[Rule 61.]'' to the end of paragraph (d).
16. In Sec. 502.62, redesignate paragraph (g) as paragraph (h),
revise redesignated paragraph (h) and add new paragraph (g) to read as
follows:
Sec. 502.62 Complaints and fee.
* * * * *
(g) Complainants desiring to use the discovery provisions of
subpart L must commence discovery at the time the complaint is filed,
pursuant to Sec. 502.201(b).
(h) For special types of cases, see Sec. 502.271 in subpart Q
(Refund or waiver of freight charges); subpart K (Shortened Procedure);
and subpart S (Small Claims). [Rule 62.]
17. In Sec. 502.63, remove paragraph (a), redesignate paragraphs
(b) through (e) as paragraphs (a) through (d), and revise the section
heading to read as follows:
Sec. 502.63 Statute of limitations for reparations.
* * * * *
18. Amend Sec. 502.64 as follows:
a. Add a sentence to the end of paragraph (a) to read as set forth
below;
b. Add ``[Rule 64.]'' to the end of paragraph (d).
Sec. 502.64 Answer to complaint; countercomplaint.
(a) * * * An answer to the complaint must be verified.
* * * * *
19. Add Sec. 502.67 to read as follows:
Sec. 502.67 Exemption procedures--General.
(a) Authority. The Commission, upon application or on its own
motion, may by order or rule exempt for the future any class of
agreements between persons subject to the Shipping Act of 1984 or any
specified activity of persons subject to the Shipping Act of 1984 from
any requirement of the Shipping Act of 1984 if it finds that the
exemption will not result in substantial reduction in competition or be
detrimental to commerce. The Commission may attach conditions to any
exemption and may, by order, revoke any exemption.
(b) Application for exemption. Any person may petition the
Commission for an exemption or revocation of an exemption of any class
of agreements or an individual agreement or any specified activity
pursuant to section 16 of the Shipping Act of 1984. A petition for
exemption shall state the particular requirement of the Shipping Act of
1984 for which exemption is sought. The petition shall also include a
statement of the reasons why an exemption should be granted or revoked,
shall provide information relevant to any finding required by the
Shipping Act of 1984 and shall comply with Sec. 502.69. Where a
petition for exemption of an individual agreement is made, the
application shall include a copy of the agreement.
(c) Participation by interested persons. No order or rule of
exemption or revocation of exemption may be issued unless opportunity
for hearing has been afforded interested persons and departments and
agencies of the United States.
(d) Federal Register notice. Notice of any proposed exemption or
revocation of exemption, whether upon petition or upon the Commission's
own motion, shall be published in the Federal Register. The notice
shall include when applicable:
(1) A short title for the proposed exemption or the title of the
existing exemption;
(2) The identity of the party proposing the exemption or seeking
revocation;
(3) A concise summary of the agreement or class of agreements or
specified activity for which exemption is sought, or the exemption
which is to be revoked;
(4) A statement that the petition and any accompanying information
are available for inspection in the
[[Page 66517]]
Commission's offices in Washington, D.C.; and
(5) The final date for filing comments regarding the proposal.
[Rule 67.]
Sec. 502.71 [Amended]
20. In Sec. 502.71, add ``[Rule 71.]'' to the end of the text.
21. In Sec. 502.75, revise paragraph (a) to read as follows:
Sec. 502.75 Proceedings involving assessment agreements.
(a) In complaint proceedings involving assessment agreements filed
under section 5(e) of the Shipping Act of 1984, the Notice of Filing of
Complaint and Assignment will specify a date before which the initial
decision will be issued, which date will not be more than eight months
from the date the complaint was filed.
* * * * *
22. In Exhibit 1 to Subpart E, remove the third paragraph after the
heading ``Information to Assist in Filing Formal Complaint,'' beginning
with the text ``Under the Shipping Act, 1916 . . . .''
Sec. 502.91 [Amended]
23. In Sec. 502.91, add ``[Rule 91.]'' to the end of paragraph (d).
Subpart F [Amended]
24. In Subpart F, remove and reserve Sec. 502.92, and remove
Exhibit 1.
Sec. 502.94 [Amended]
25. In Sec. 502.94, add ``[Rule 94.]'' to the end of paragraph (c).
26. Revise Sec. 502.102 to read as follows:
Sec. 502.102 Enlargement of time to file documents.
(a) Motions for enlargement of time for the filing of any pleading
or other document, or in connection with the procedures of subpart L of
this part, shall set forth the reasons for the motion and be submitted
at least five (5) days before the scheduled date for filing. Except for
good cause shown, failure to meet this time requirement may result in
summary rejection of the request.
(b) Such motions will be granted only under exceptional
circumstances duly demonstrated in the request, and shall conform to
the requirements of subpart H of this part, except as to service if
they show that the parties have received actual notice of the motion;
and in relation to briefs, exceptions, and replies to exceptions, such
motions shall conform to the further provisions of Secs. 502.222 and
502.227.
(c) Upon motion made after the expiration of the scheduled date,
the filing may be permitted where reasonable grounds are found for the
failure to file.
(d) Replies to such motions for enlargement of time shall conform
to the requirements of Sec. 502.74. [Rule 102.]
27. Add two sentences before the last sentence of Sec. 502.104 to
read as follows:
Sec. 502.104 Postponement of hearing.
* * * Such motions must be received, whether orally or in writing,
at least five (5) days before the scheduled date for hearing. Except
for good cause shown, failure to meet this requirement may result in
summary rejection of the request. * * *
28. Revise Sec. 502.105 to read as follows:
Sec. 502.105 Waiver of rules governing enlargements of time and
postponements of hearings.
The Commission, the presiding officer, or the Chief Administrative
Law Judge may waive the requirements of Secs. 502.102 and 502.104 as to
replies and may rule ex parte on such requests. [Rule 105.]
29. In subpart H, revise Sec. 502.111 to read as follows:
Sec. 502.111 Form and appearance of documents filed with Commission.
(a) All papers to be filed under the rules in this part must be
clear and legible, dated, show the docket description and title of the
proceeding, and include the title, if any, and address of the signer.
An original signed in ink must be provided. Text shall appear on only
one side of the paper and must be double spaced except that quotations
must be single spaced and indented. The paper must be strong and
durable, not more than 8\1/2\ inches wide and 12 inches long, with a
left hand margin of 1\1/2\ inches. Documents shall be printed in clear
type, never smaller than 12 point.
(b) Filings by facsimile for purposes of meeting a deadline will
not be accepted unless authorized by the presiding officer or the
Secretary.
(c) Facsimile transmissions of signature pages on filings will be
tentatively accepted for the purpose of meeting filing deadlines
pending receipt of the original signature page within seven working
days. [Rule 111.]
30. Amend Sec. 502.112 as follows:
a. Revise the section heading to read as set forth below;
b. Add ``[Rule 112.]'' to the end of paragraph (c)(2).
Sec. 502.112 Verification of documents.
* * * * *
31. Revise Sec. 502.113 to read as follows:
Sec. 502.113 Service by the Commission.
(a) Complaints filed pursuant to Sec. 502.62, (including any
accompanying discovery requests initiated pursuant to Sec. 502.201(b)),
amendments to complaints (unless otherwise authorized by the presiding
officer pursuant to Sec. 502.70(b)), and complainant's memoranda filed
in shortened procedure cases will be served by the Secretary of the
Commission.
(b) Alternatively, should the Secretary be unable to obtain service
by mail, proper service of a complaint may be effected by complainant,
in which case an affidavit setting forth the method, time and place of
service must be filed with the Secretary within five days following
service.
(c) In addition to and accompanying the original of every document
filed with the Commission for service by the Commission, there shall be
a sufficient number of copies for use of the Commission (see
Sec. 502.118) and for service on each party to the proceeding.
(d) The presiding officer may dismiss a complaint that has not been
served within thirty (30) days after the complaint was filed. [Rule
113.]
32. In Sec. 502.114, revise the section heading and paragraph (a)
to read as follows:
Sec. 502.114 Service by parties of pleadings and other documents.
(a) Except as otherwise specifically provided by the rules in this
part, all pleadings, documents, and papers of every kind (except
requests for subpoenas, documents served by the Commission under
Sec. 502.113, and documents submitted at a hearing or prehearing
conference) in proceedings before the Commission under the rules in
this part shall, when tendered to the Commission or the presiding
officer for filing, show that service has been made upon all parties to
the proceeding and upon any other persons required by the rules in this
part to be served. Such service shall be made by delivering one copy to
each party: by hand delivering in person; by mail, properly addressed
with postage prepaid; by courier; or by facsimile transmission if
agreed by both parties prior to service.
* * * * *
Sec. 502.114 [Amended]
33. Amend Sec. 502.114(b) as follows:
a. Revise ``(Rule 53)'' to read ``(Rule 52).''
b. Revise ``(Part 585)'' to read ``(Part 550).''
c. Revise ``13(b)(5) of the Shipping Act of 1984, 46 U.S.C. app.
1712(b)(5) (part 587)'' to read ``13(b)(6) of the Shipping Act of 1984
(part 560).''
[[Page 66518]]
34. Revise Sec. 502.116 to read as follows:
Sec. 502.116 Date of service.
The date of service of documents served by the Commission shall be
the date shown in the service stamp theron. The date of service of
documents served by parties shall be the date when matter served is
deposited in the United States mail, delivered to a courier, delivered
in person, or transmitted by facsimile, as the case may be. In
computing the time from such dates, the provisions of Sec. 502.101
shall apply. [Rule 116.]
35. In Sec. 502.118, revise paragraph (b)(2) to read as follows:
Sec. 502.118 Copies of documents for use of the Commission.
* * * * *
(b) * * *
(2) An original and four copies shall be filed with the Secretary
of prehearing statements required by Sec. 502.95, stipulations under
Sec. 502.162, notices of appearance required by Sec. 502.23, and all
other motions, petitions, or other written communications seeking a
ruling from the presiding administrative law judge.
* * * * *
36. In Sec. 502.119, revise paragraphs (a) and (b) to read as
follows:
Sec. 502.119 Documents containing confidential materials.
* * * * *
(a) Filings shall be accompanied by a transmittal letter which
identifies the filing as ``confidential'' and describes the nature and
extent of the authority for requesting confidential treatment. The
confidential copies shall consist of the complete filing and shall
include a cover page marked ``Confidential-Restricted,'' with the
confidential materials clearly marked on each page.
(b) Whenever a confidential filing is submitted, there must also be
submitted an original and one copy of a public version of the filing.
Such public version shall exclude confidential materials, and shall
indicate on the cover page and on each affected page ``confidential
materials excluded.''
* * * * *
37. Revise Sec. 502.133 to read as follows:
Sec. 502.133 Attendance and mileage fees.
Witnesses summoned by subpena to a hearing or deposition are
entitled to the same fees and mileage that are paid to witnesses in
courts of the United States. Fees and mileage shall be paid, upon
request, by the party at whose instance the witness appears. [Rule
133.]
Sec. 502.143 [Amended]
38. In the text of Sec. 502.143 revise ``Sec. 502.133, `` to read
``Sec. 502.113.''
39. In Sec. 502.144:
a. Redesignate the current text as paragraph (a).
b. Revise the section heading as set forth below;
c. Revise the last sentence of redesignated paragraph (a) to read
as set forth below;
d. Add new paragraph (b) to read as set forth below.
Sec. 502.144 Notice of time and place of hearing; postponement of
hearing
(a) * * * Notice may be served by mail, facsimile transmission, or
electronic mail.
(b) Motions for postponement of any hearing date shall be filed in
accordance with Sec. 502.104. [Rule 144.]
40. In Sec. 502.146, revise paragraph (a) and paragraph (c) to read
as follows:
Sec. 502.146 Commencement of functions of Office of Administrative Law
Judges.
* * * * *
(a) Upon the service by the Commission of a complaint filed
pursuant to Sec. 502.62, or Sec. 502.182, or upon referral under
subpart T of this part; or
(b) * * *
(c) Upon forwarding for assignment by the Office of the Secretary
of a special docket application pursuant to Sec. 502.271; or
* * * * *
41. In the first sentence of paragraph (a) of Sec. 502.147 remove
the phrase ``except with regard to that portion of any order involving
the Commission's suspension authority set forth in section 3,
Intercoastal Shipping Act, 1933.''
42. In Sec. 502.147, revise paragraph (b) to read as follows:
Sec. 502.147 Functions and powers.
* * * * *
(b) All of the functions delegated in subparts A to Q and subpart T
of this part, inclusive, to the Chief Judge, presiding officer, or
administrative law judge include the functions with respect to hearing,
determining, ordering, certifying, reporting, or otherwise acting as to
any work, business, or matter, pursuant to the provisions of section
105 of Reorganization Plan No. 7 of 1961. [Rule 147.]
43. Amend Sec. 502.201 as follows:
a. Revise paragraph (a) to read as set forth below;
b. Revise the paragraph heading in paragraph (d) to read as set
forth below;
c. Revise the paragraph heading in paragraph (f) to read as
follows:
Sec. 502.201 General provisions governing discovery.
(a) Applicability. The procedures described in this subpart are
available in all adjudicatory proceedings under the Shipping Act of
1984. Unless otherwise ordered by the presiding officer, the copy
requirements of Sec. 502.118(b)(3)(i) shall be observed.
* * * * *
(d) Duty of the parties to meet or confer. * * *
* * * * *
(f) Conferences by order of the presiding officer. * * *
* * * * *
44. In Sec. 502.221, revise paragraph (f) to read as follows:
Sec. 502.221 Briefs; requests for findings.
* * * * *
(f) All briefs filed pursuant to this section shall ordinarily be
limited to fifty (50) 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
five (5) days before the time fixed for filing of such a brief or
reply. [Rule 221.]
45. Revise Sec. 502.223 to read as follows:
Sec. 502.223 Decisions--Administrative law judges.
To the administrative law judges is delegated the authority to make
and serve initial or recommended decisions. All initial and recommended
decisions will include a statement of findings and conclusions, as well
as the reasons or basis therefor, upon all the material issues
presented on the record, and the appropriate rule, order, sanction,
relief, or denial thereof. Where appropriate, the statement of findings
and conclusions should be numbered. Initial decisions should address
only those issues necessary to a resolution of the material issues
presented on the record. A copy of each decision when issued shall be
served on the parties to the proceeding. In proceedings involving
overcharge claims, the presiding officer may, where appropriate,
require that the carrier publish notice in its tariff of the substance
of the decision. This provision shall also apply to decisions issued
pursuant to subpart T of this part. [Rule 223.]
46. Revise Sec. 502.225 to read as follows:
Sec. 502.225 Decisions--Commission.
All final decisions will include a statement of findings and
conclusions, as well as the reasons or basis therefor,
[[Page 66519]]
upon all the material issues presented on the record, and the
appropriate rule, order, sanction, relief, or denial thereof. A copy of
each decision when issued shall be served on the parties to the
proceeding. This provision shall also apply to decisions issued
pursuant to subpart T of this part. [Rule 225.]
47. Amend Sec. 502.227 as follows:
a. Revise the section heading to read as set forth below;
b. Redesignate paragraphs (a)(4) through (6) as paragraphs (a)(5)
through (7);
c. Add a new paragraph (a)(4) to read as set forth below;
d. Remove ``[Rule 227]'' from paragraph (d);
e. Add new paragraph (e) to read as follows:
Sec. 502.227 Exceptions to decisions or orders of dismissal of
administrative law judge; replies thereto; review of decisions or
orders of dismissal by Commission; and judicial review.
(a) * * *
(4) A decision or order of dismissal by an administrative law judge
shall only be considered final for purposes of judicial review if the
party has first sought review by the Commission pursuant to this
section.
* * * * *
(e) All briefs and replies filed pursuant to this section shall
ordinarily be limited to fifty (50) pages in length, exclusive of pages
containing the table of contents, table of authorities, and certificate
of service, unless the Commission allows the parties to exceed this
limit for good cause shown and upon application filed not later than
five (5) days before the time fixed for filing of such a brief or
reply. [Rule 227.]
48. Revise Sec. 502.253 to read as follows:
Sec. 502.253 Interest in reparation proceedings.
Except as to applications for refund or waiver of freight charges
under Sec. 502.271 and claims which are settled by agreement of the
parties, and absent fraud or misconduct of a party, interest granted on
awards of reparation in complaint proceedings instituted under the
Shipping Act of 1984 will accrue from the date of injury to the date
specified in the Commission order awarding reparation. Compounding will
be daily from the date of injury to the date specified in the
Commission order awarding reparation. Normally, the date specified
within which payment must be made will be fifteen (15) days subsequent
to the date of service of the Commission order. Interest shall be
computed on the basis of the average monthly secondary market rate on
six-month U.S. Treasury bills commencing with the rate for the month
that the injury occurred and concluding with the latest available
monthly U.S. Treasury bill rate at the date of the Commission order
awarding reparation. The monthly secondary market rates on six-month
U.S. Treasury bills for the reparation period will be summed up and
divided by the number of months for which interest rates are available
in the reparation period to determine the average interest rate
applicable during the period. [Rule 253.]
49. Amend Sec. 502.254 as follows:
a. Revise the first sentence of paragraph (a) to read as set forth
below;
b. Revise paragraph (c)(1)(i) to read as set forth below:
Sec. 502.254 Attorney's fees in reparation proceedings.
(a) Scope. The Commission shall, upon petition, award the
complainant reasonable attorney's fees directly related to obtaining a
reparations award in any complaint proceeding under section 11 of the
Shipping Act of 1984. * * *
(c) * * * (1) * * *
(i) With the presiding officer where the presiding officer's
decision awarding reparations became administratively final pursuant to
Sec. 502.227(a)(3) and Sec. 502.304(g); or
* * * * *
50. Revise Subpart Q to read as follows:
Subpart Q--Refund or Waiver of Freight Charges
502.271 Special docket application for permission to refund or waive
freight charges.
(a)(1) A common carrier or a shipper may file a special docket
application seeking permission for a common carrier or conference to
refund or waive collection of a portion of freight charges if there is:
(i) An error in the tariff;
(ii) An error in failing to publish a new tariff; or
(iii) An error in quoting a tariff.
(2) Such refund or waiver must not result in discrimination among
shippers, ports, or carriers.
(b) Such application must be filed within one hundred eighty (180)
days from the date of sailing of the vessel from the port at which the
cargo was loaded. An application is filed when it is placed in the
mail, delivered to a courier, or, if delivered by another method, when
it is received by the Commission. Filings by mail or courier must
include a certification as to date of mailing or delivery to the
courier.
(c) Prior to submission of the application for a refund for an
error in a tariff or a failure to publish a new tariff, the carrier or
conference must publish a new tariff which sets forth the rate on which
refund or waiver would be based.
(d) Such application must be in accordance with Exhibit 1 to this
Subpart and must also comply with the following requirements:
(1) Applications must be submitted to the Office of the Secretary,
Federal Maritime Commission, Washington, DC 20573-0001.
(2) Applications must be submitted in an original and one (1) copy.
(3) Applications must be sworn to before a notary public or
otherwise verified in accordance with Sec. 502.112.
(4) When a rate published in a conference tariff is involved, the
carrier or shipper must serve a copy of the application on the
conference and so certify in accordance with Sec. 502.117 to that
service in the application. A shipper must also make a similar service
and certification with respect to the common carrier.
(5) Applications must be accompanied by remittance of an $86 filing
fee.
(e) Any application which does not furnish the information required
by this subpart may be returned to the applicant by the Secretary
without prejudice to resubmission within the 180-day limitation period.
(f)(1) The Secretary in his discretion shall assign all
applications to either a Special Dockets Officer or the Office of
Administrative Law Judges. Authority to issue decisions under this
subpart is delegated to the assigned Special Dockets Officer or
Administrative Law Judge.
(2) Applicants will be notified as to the assignment of a deciding
official, and the assignment of a special docket number. Formal
proceedings as described in other rules of this part need not be
conducted. The deciding official may, in his or her discretion, require
the submission of additional information.
(g) The deciding official shall issue a decision which, pursuant to
Sec. 501.21 of this chapter, shall become final ten (10) days after
service of such decision, unless the Commission in its discretion
chooses to review such decision within that time, or the applicant
chooses to file exceptions to such decision within that time. [Rule
271.]
[[Page 66520]]
Exhibit No. 1 to Subpart Q
Application for Refund or Waiver of Freight Charges Due to Tariff or
Quoting Error
Federal Maritime Commission Special Docket No. ____________ [leave
blank].
Amount of Freight Charges to be refunded or waived:
Application of [Name of carrier or shipper] for the benefit of
[Name of person who paid or is responsible for payment of freight
charges].
1. Shipment(s). Here fully describe:
(a) Commodity [according to tariff description].
(b) Number of shipments.
(c) Weight or measurement, container size, and number of containers
of individual shipment, as well as all shipments.
(d)(1) Date(s) of receipt of shipment(s) by the carrier;
(2) Date(s) of sailing(s) [furnish supporting evidence].
(e) Shipper and place of origin.
(f) Consignee, place of destination and routing of shipment(s).
(g) Name of carrier and date shown on bill of lading [furnish
legible copies of bill(s) of lading].
(h) Names of participating ocean carrier(s).
(i) Name(s) of vessel(s) involved in carriage.
(j) Amount of freight charges actually collected [furnish legible
copies of rated bill(s) of lading or freight bill(s), as appropriate]
broken down (i) per shipment, (ii) in the aggregate, (iii) by whom
paid, (iv) who is responsible for payment if different, and (v) date(s)
of collection.
(k) Rate and tariff commodity description applicable at time of
shipment [furnish legible copies of tariff materials].
(l) Rate and commodity description sought to be applied [furnish
legible copies of applicable tariff materials].
(m)(1) Amount of applicable freight charges, per shipment and in
the aggregate;
(2) Amount of freight charges at rate sought to be applied, per
shipment and in the aggregate.
(n) Amount of freight charges sought to be (refunded) (waived), per
shipment and in the aggregate.
2. Furnish docket numbers of other special docket applications or
decided or pending formal proceedings involving the same rate
situations.
3. Fully explain the basis for the application, i.e., the error,
failure to publish, or misquote, showing why the application should be
granted. Furnish affidavits, if appropriate, and legible copies of all
supporting documents. If the error is due to failure to publish a
tariff, specify the date when the carrier and/or conference intended or
agreed to publish a new tariff. If the application is based on a
misquote, the application must include the affidavit of the person who
made the misquote describing the circumstances surrounding such
misquote along with any other supporting documentary evidence
available.
4. Furnish any information or evidence as to whether granting the
application may result in discrimination among shippers, ports or
carriers. List any shipments of other shippers of the same commodity
which (i) moved via the carrier(s) or conference involved in this
application during the period of time beginning on the date the
intended rate would have become effective and ending on the day before
the effective date of the conforming tariff; (ii) moved on the same
voyage(s) of the vessel(s) carrying the shipment(s) described in No. 1,
above; or (iii), in the case of a misquote, moved between the date of
receipt of shipment(s) described in No. 1 above, and the date(s) of
sailing(s).
[Here set forth Name of Applicant, Signature of Authorized Person,
Typed or Printed Name of Person, Title of Person and Date]
State of , County of . ss:
I, ____________________, on oath declare that I am
____________________ of the above-named applicant, that I have read
this application and know its contents, and that they are true.
Subscribed and sworn to before me, a notary public in and for the
State of ____________________, County of ____________________ this
______ day of ____________________.
(Seal)
____________________
Notary Public
My Commission expires ____________________.
Certificate of Service [if Applicable]
I hereby certify that I have this day served the foregoing document
upon the [insert the conference name if a conference tariff is
involved; of the name of the carrier if the applicant is a shipper] by
delivering a copy [insert means by which copy delivered].
Dated in [insert city, county, state] this ______ day
of________________.
[signature]
For:
Certificate of Mailing
I certify that the date shown below is the date of mailing [or date
of delivery to courier] of the original and one (1) copy of this
application to the Secretary, Federal Maritime Commission, Washington,
D.C., 20573.
Dated at ________________, this ______ day of ____________.
Signature].
For.
Sec. 502.301 [Amended]
51. In Sec. 502.301, remove paragraph (b) and redesignate
paragraphs (c) and (d) as paragraphs (b) and (c).
Sec. 502.302 [Amended]
52. In Sec. 502.302, remove paragraph (b) and redesignate paragraph
(c) as paragraph (b).
53. Revise Sec. 502.305 to read as follows:
Sec. 502.305 Applicability of other rules of this part.
Except Secs. 502.253 and 502.254 or as otherwise specifically
provided in this subpart, the rules in subparts A through Q, inclusive,
do not apply to situations covered by this subpart. [Rule 305.]
Subpart S--[Amended]
54. In Exhibit 1 to Subpart S, in the section entitled Information
to Assist in Filing Informal Complaints, remove the third paragraph
beginning with the text ``Under the Shipping Act, 1916. . . .''
55. Revise Sec. 502.321 to read as follows:
Sec. 502.321 Applicability of other rules of this part.
Except as specifically provided in this part, rules in Subparts A
through Q, inclusive, of this part do not apply to situations covered
by this subpart. [Rule 321.]
Sec. 502.401 [Amended]
56. Amend Sec. 502.401 as follows:
a. Amend paragraph (b) by removing ``Shipping Act, 1916, 46 U.S.C.
app. 801 et seq.;'' and removing ``the Intercoastal Shipping Act 1933,
46 U.S.C. app. 843 et seq.''
b. Remove paragraph (d), and redesignate paragraph (e) as paragraph
(d).
57. Amend Sec. 502.501 as follows:
a. Add new paragraph (d)(2)(vi) to read as set forth below;
b. Add new paragraph (e)(3) to read as set forth below;
c. Revise the first sentence of paragraph (f)(2) to read as set
forth below;
d. Add ``[Rule 501.]'' to the end of paragraph (g).
Sec. 502.501 General provisions.
* * * * *
(d) * * *
(2) * * *
[[Page 66521]]
(vi) For purposes of paragraph (e)(3) of this section, a small
entity as defined in 5 U.S.C. 601.
* * * * *
(e) Standards for awards. (1) * * *
(2) * * *
(3) In an adversary adjudication arising from a Commission action
to enforce a party's compliance with a statutory or regulatory
requirement, if the demand by the Commission is substantially in excess
of the decision of the presiding officer and is unreasonable under the
facts and circumstances of the case, the presiding officer shall award
to the party fees and other expenses related to defending against the
excessive demand, unless the party has committed a willful violation of
law or otherwise acted in bad faith, or special circumstances make an
award unjust.
* * * * *
(f) Allowable fees and expenses. (1)
* * *
(2) No award for the fee of an attorney or agent under this subpart
may exceed $125 per hour. * * *
* * * * *
Sec. 502.502 [Amended]
58. In Sec. 502.502, add ``[Rule 502.]'' to the end of paragraph
(d)(3).
Sec. 502.503 [Amended]
59. In Sec. 502.503, add ``[Rule 503.]'' to the end of paragraph
(j)(2).
60. Revise Sec. 502.601 to read as follows:
Sec. 502.601 Purpose and scope.
The purpose of this subpart is to implement the statutory
provisions of section 19 of the Merchant Marine Act, 1920, section 13
of the Shipping Act of 1984, and sections 2(c) and 3(c) of Public Law
89-777 by establishing rules and regulations governing the compromise,
assessment, settlement and collection of civil penalties arising under
certain designated provisions of the Merchant Marine Act, 1920, the
Shipping Act of 1984, Public Law 89-777, and/or any order, rule, or
regulation (except for procedural rules and regulations contained in
this part) issued or made by the Commission in the exercise of its
powers, duties and functions under those statutes. [Rule 601.]
61. Amend Sec. 502.602 as follows:
a. Revise paragraph (h) to read as set forth below;
b. Add ``[Rule 602.]'' to the end of paragraph (i).
Sec. 502.602 Definitions.
* * * * *
(h) ``Violation'' includes any violation of sections 19(6)(d),
19(7)(d) and 19(11) of the Merchant Marine Act, 1920; any provision of
the Shipping Act of 1984; sections 2 and 3 of Public Law 89-777; and/or
any order, rule or regulation (except for procedural rules and
regulations contained in this part) issued or made by the Commission in
the exercise of its powers, duties and functions under the Merchant
Marine Act, 1920, the Shipping Act of 1984, or Public Law 89-777.
* * * * *
Sec. 502.603 [Amended]
62. In Sec. 502.603, add ``[Rule 603.]'' to the end of paragraph
(c).
63. Amend Sec. 502.604 as follows:
a. Revise the first sentence of paragraph (b) to read as set forth
below;
b. Add ``[Rule 604.]'' to the end of paragraph (g).
Sec. 502.604 Compromise of penalties: Relation to assessment
proceedings.
* * * * *
(b) Notice. When the Commission considers it appropriate to afford
an opportunity for the compromise of a civil penalty, it will, except
when otherwise authorized by the Commission, or where circumstances
render it unnecessary, send a Notice and Demand Letter (``NDL'') to the
respondent, by registered or certified mail, or by other means
reasonably calculated to give notice. * * *
* * * * *
64. Amend Sec. 502.605 as follows:
a. Revise paragraph (a) to read as set forth below;
b. Add ``[Rule 605.]'' to the end of paragraph (c).
Sec. 502.605 Payment of penalty; Method; default.
(a) Method. Payment of penalties by the respondent is to be made by
bank cashier's check or other instrument acceptable to the Commission.
* * * * *
PART 571--INTERPRETATIONS AND STATEMENTS OF POLICY
1. Redesignate part 571 as part 545.
2. The authority citation for redesignated part 545 continues to
read as follows:
Authority: 5 U.S.C. 553, 46 U.S.C. app. 1706, 1707, 1709, and
1716.
3. In redesignated Sec. 545.1, revise paragraph (a) to read as
follows:
Sec. 545.1 Interpretation of Shipping Act of 1984--Refusal to
negotiate with shippers' associations.
(a) Section 8(c) of the Shipping Act of 1984 (``1984 Act'')
authorizes ocean common carriers and conferences to enter into a
service contract with a shippers' association, subject to the
requirements of the 1984 Act. Section 10(b)(10) of the 1984 Act
prohibits carriers from unreasonably refusing to deal or negotiate.
Section 7(a)(2) of the 1984 Act exempts from the antitrust laws any
activity within the scope of that Act, undertaken with a reasonable
basis to conclude that it is pursuant to a filed and effective
agreement.
* * * * *
By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 98-31856 Filed 12-1-98; 8:45 am]
BILLING CODE 6730-01-P
