[Federal Register Volume 59, Number 117 (Monday, June 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14914]
[[Page Unknown]]
[Federal Register: June 20, 1994]
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FEDERAL MARITIME COMMISSION
46 CFR Part 502
[Docket No. 93-24]
Amendment to Rules of Practice and Procedure
AGENCY: Federal Maritime Commission.
ACTION: Proposed rule; withdrawal.
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SUMMARY: The Federal Maritime Commission, after reviewing the comments
received and evaluating the concerns that led to the Proposed Rule, is
withdrawing the Rule and is discontinuing the proceeding. The
Commission concludes that the rule is not needed at this time. The
Commission will continue to address specific service of process
situations on an ad hoc basis.
DATES: This action is effective June 20, 1994.
FOR FURTHER INFORMATION CONTACT:
Joseph C. Polking, Secretary, Federal Maritime Commission, 800 North
Capitol Street, N.W., Washington, D.C. 20573-0001, (202) 523-5725.
SUPPLEMENTARY INFORMATION: By Notice of Proposed Rulemaking (``NPR'' or
``Proposed Rule'') published in the Federal Register, 58 FR 68841-68843
(Dec. 29, 1993), the Commission proposed to amend Rule 113, 46 CFR
502.113 of the Commission's Rules of Practice and Procedure to make the
complainant in a private action responsible for service of its
complaint when the Commission has been unsuccessful, for any reason, in
effectuating service by certified or registered mail.
The only comment in response to the NPR was filed by the Maritime
Administrative Bar Association (``MABA''), which opposes the Proposed
Rule.
Background
Under Rule 113, the Commission is presently charged with the
responsibility for service of private complaints, amendments to
complaints, and complainant's memoranda filed in shortened procedure
cases, while Rule 114, 46 CFR 502.114, requires that parties serve all
other pleadings.\1\ In administering Rule 113, the Commission has
experienced occasions where complaints and other pleadings were
returned by the United States Postal Service because the respondent
refused delivery, an incorrect address was provided by the complainant,
or the respondent had moved leaving no forwarding address. In such
circumstances, the Commission has resorted to alternative methods of
service such as utilizing a Commission investigator to personally find
and serve the respondent, or serving the secretary of state pursuant to
state law. The NPR noted that the Proposed Rule would conform the
Commission's Rules regarding service more closely to the Federal Rules
of Civil Procedure.
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\1\Section 502.114 provides that all pleadings, documents, and
papers (except requests for subpoenas) in proceedings before the
Commission 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 to be served.
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Comments
In opposing the Proposed Rule, MABA argues that the Shipping Act,
1916, 46 U.S.C. app. 821, and the Shipping Act of 1984, 46 U.S.C. app.
1710(b) (``Shipping Acts''), prohibit the Commission from shifting the
burden of ``personally serving private complaints from the Commission
to private parties.'' Comments at 1-2. MABA's position is that only the
Commission can serve the complaint, and that a ``rule is which service
of the complaint is performed by someone other than the Commission does
not comply with the clear statutory command that the Commission `shall
furnish' a copy of the complaint.'' Id. at 2. Regarding the
Commission's interest in bringing Rule 113 in conformity with the
Federal Rules of Civil Procedure, MABA contends that the Federal Rules
``are not underlain by a similar statutory obligation that the district
court `furnish a copy of the complaint' to a defendant.''Id. at 3.
Finally, MABA cites differences between district court and FMC
proceedings, and ``* * * practical reasons why the Commission should
not abandon its statutory responsibility to serve a complaint.'' Id. at
3.
MABA argues that the Shipping Acts' statutory provisions governing
complaints mean what they say and that the Commission is compelled to
serve a respondent on behalf of a private complainant. It contends that
because the Commission has national jurisdiction, field offices, and an
extensive regulated persons index, it is also in a better position to
personally serve the respondent. MABA believes that the Proposed Rule
would place the burden of personal service on small companies, thereby
acting as a possible barrier to the prosecution of claims before the
agency, and exacerbating whatever service problems now exist.
Conclusion
Upon a reevaluation of the concerns that prompted this proposal,
the Commission has decided not to proceed to a final rule. Any actual
service of process difficulties in a specific case will be addressed on
an ad hoc basis.
Therefore, it is ordered, That the Proposed Rule is withdrawn and
this proceeding is discontinued.
By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 94-14914 Filed 6-17-94; 8:45 am]
BILLING CODE 6730-01-M
