12528 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

Dated: February 9, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2012–4675 Filed 2–29–12; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL MARITIME COMMISSION 

46 CFR Part 502 

[Docket No. 11–05] 

RIN 3072–AC43 

Amendments to Commission’s Rules 

of Practice and Procedure—Subparts E 

and L 

AGENCY: Federal Maritime Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Maritime 

Commission proposes to amend Subpart 

E (Proceedings; Pleadings; Motions; 

Replies) and Subpart L (Depositions, 

Written Interrogatories, and Discovery) 

of its Rules of Practice and Procedure to 

update and clarify the rules and to 

reduce the burden on parties to 

proceedings before the Commission. 

DATES: Comments or suggestions due on 

or before April 30, 2012. 

ADDRESSES: Address all comments 

concerning this proposed rule to: Karen 

V. Gregory, Secretary, Federal Maritime 

Commission, 800 North Capitol Street 

NW., Washington, DC 20573–0001, 

Phone: (202) 523–5725, Email: 

secretary@fmc.gov. 

SUPPLEMENTARY INFORMATION: 

Submit Comments: Submit an original 

and five (5) copies in paper form, and 

if possible, send a PDF of the document 

by email to secretary@fmc.gov. Include 

in the subject line: Docket No. 11–05, 

and [Company/Individual Name]. 

Background 

The Commission’s Rules of Practice 

and Procedure, 46 CFR part 502, govern 

procedures before the Commission. 46 

CFR 502.1-.991. The rules are in place 

to secure just, speedy, and inexpensive 

resolution of proceedings before the 

Commission. The Commission has 

determined to amend Part 502 of Title 

46 of the Code of Federal Regulations to 

update and improve the Commission’s 

Rules of Practice and Procedure and to 

reduce the burden on parties to 

proceedings before the Commission. 

As a first step in updating and 

improving its procedural rules, the 

Commission already issued a Final Rule 

with respect to certain rules in Subparts 

A, H, I, S, and T of its Rules of Practice 

and Procedure. 76 FR 10258 (February 

24, 2011). The Commission also issued 

an Advance Notice of Proposed 

Rulemaking (ANPR) to seek comments 

on further amendments to improve its 

rules. 76 FR 19022 (April 6, 2011). 

In continuance of its efforts to 

modernize its rules, the Commission 

proposes to amend Subpart E 

(Proceedings; Pleadings; Motions; 

Replies) and Subpart L (Disclosures and 

Discovery) of its Rules of Practice and 

Procedure. 

Comments in Response to ANPR 

In response to the ANPR, the 

Commission received comments from 

Nathan Barillo, student at Villanova 

University School of Law (Barillo), and 

the Law Firm of Rodriguez O’Donnell 

Gonzalez & Williams, P.C., Washington 

DC (ROGW). Barillo’s comments 

focused on electronic delivery systems 

that the Commission should consider in 

connection with its filing and docket 

requirements. Based on experience with 

various systems, he advocates the use of 

a cloud computing system in which 

documents can be filed giving multiple 

users ability to access information from 

a remote location and server. Such a 

system would permit the Commission to 

receive documents electronically and 

allow Commission personnel and public 

users to access the documents at any 

time and from any location. He names 

several commercial systems as viable 

options for an online submission 

system, and also suggests that a 

government created system could 

alleviate security concerns. Barillo 

believes that cloud computing would 

streamline efficiency and reduce staff 

labor in dealing with paper, but 

nevertheless acknowledges that the 

Commission must also consider the 

needs of a small segment of the 

population that may not have access to 

a computer. 

ROGW’s attorneys frequently appear 

before the Commission in adjudications, 

rulemakings, and various other 

regulatory matters. ROGW commends 

the recent amendments to the 

Commission’s rules addressing 

electronic filing in PDF format as well 

as paper. ROGW recommends adoption 

of a filing system similar to the Public 

Access to Court Electronic Records 

(PACER) system currently used in the 

federal courts. Through PACER, the 

federal judiciary allows and in most 

cases, requires, electronic filing of 

documents and public access to filings 

through a centralized system. ROGW 

believes that if funding permits, 

adoption of such a system would permit 

Commission personnel and private 

practitioners to obtain access to formal 

and informal proceedings and public 

docket information via the Internet. 

With respect to the substance of 

certain rules, ROGW states that the 

applicability of the Federal Rules of 

Civil Procedure (FRCP) in Commission 

proceedings is not always clear and that 

the federal rules should be applied 

whenever possible. Specifically, ROGW 

suggests that adoption of FRCP 56 

procedures for summary judgment 

would allow for more expeditious 

litigation. Similarly, ROGW 

recommends that the FRCP 41 

procedures for voluntary and 

involuntary dismissals be included in 

the Commission’s rules. ROGW explains 

that under the Commission’s rules, after 

reaching a settlement in a case, the 

litigants cannot simply file a notice 

dismissing the complaint, but rather 

must file a motion for approval of the 

settlement. ROGW asserts that this 

requirement results in unnecessary 

expense of resources for the 

Commission and the parties and 

believes that the better approach is 

provided by the federal rule. Finally, 

ROGW supports adoption of the 

discovery rules in the FRCP, in 

particular the requirements for initial 

disclosures, identification of expert 

witnesses, procedures for claiming 

privilege and protection of trial 

preparation materials, limitations on 

depositions and interrogatories, and the 

30-day response period for production 

of documents and interrogatories. Based 

on its experience, ROGW submits that 

mandatory disclosures would reduce 

the need to file motions to compel. 

However, ROGW believes that in 

considering adoption of these federal 

rules, due regard should be given to the 

differences in the nature of proceedings 

and practice in the federal courts and 

before the Commission. 

Subpart E—Proceedings; Pleadings; 

Motions; Replies 

The revisions to Subpart E are 

intended both to streamline the current 

rules for ease of use by the public and 

to provide parties to Commission 

proceedings with greater clarity as to the 

requirements pertaining to the conduct 

of proceedings, specifically motions, 

intervention and dismissals. Also as 

described below, this proposed 

amendment sets out a new procedure 

for the conduct of Commission initiated 

enforcement proceedings. Minor 

changes are also proposed to reorder 

sections and enhance clarity generally. 

Rule 62—Private Party Complaints for 

Formal Adjudication 

Rule 62, 46 CFR 502.62, governs the 

filing of private party complaints for 

formal adjudication and has been 

revised for clarification and modernized 


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Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 12529 

to request email addresses for parties to 

proceedings. Rules related to the filing 

of answers to complaints (currently 

found at 46 CFR 502.64) and statutes of 

limitations (currently found at 46 CFR 

502.63) have been consolidated into 

Rule 62. Proposed Rule 62 explains 

more fully what is required in an 

answer and also provides for the filing 

of counterclaims, cross-claims, and 

third party complaints. Commission 

rules have not previously addressed 

these types of claims, though they have 

been filed and adjudicated. Proposed 

Rule 62 references decisions on default 

for failure to answer a complaint, 

counterclaim, cross-claim, or third-party 

complaint. Administrative Law Judges 

(ALJs) have adjudicated decisions on 

default in the past in various fashions, 

but the proposed rule better defines 

when an initial decision on default may 

be issued. The new default rule is 

discussed in greater detail below. 

Exhibit 1 to Subpart E currently 

contains a complaint form and a 

checklist of information required when 

filing a complaint. The proposed rule 

would remove this form from the rules 

as the Commission plans to publish a 

revision of this form on its Web site 

along with other forms and further 

helpful information for complaint filers, 

with information oriented particularly 

to pro se filers. 

Rule 63—Commission Enforcement 

Action 

Proposed Rule 63 provides a new 

procedure at the initial stages of 

Commission enforcement proceedings 

designed to more efficiently utilize 

Commission resources, provide for 

expeditious resolution of cases where a 

respondent defaults or otherwise 

chooses not to appear, and ensures due 

process to respondents. Under current 

procedure, the Commission issues an 

Order of Investigation and Hearing that 

advises respondents of the issues under 

investigation, designates the 

Commission’s Bureau of Enforcement 

(BOE) as a party to the proceeding to 

prosecute the case, and assigns the 

matter to the Office of Administrative 

Law Judges to conduct the proceeding 

and issue an initial decision. There is no 

requirement in the current procedural 

rules that a respondent answer or 

otherwise respond to the Order. 

Typically, the presiding officer issues an 

initial order to the parties followed by 

a scheduling order setting forth dates by 

which certain aspects of the case must 

be completed and generally setting a 

schedule for the proceeding. It is not 

uncommon, however, for a respondent 

to fail to appear or to initially appear 

and then cease participating in the case. 

Under these procedures, there are no 

Commission rules to address a 

respondent’s failure to appear or comply 

with procedural requirements. Instead, 

the presiding officer is required to 

undertake a number of sequential 

procedural steps just to put the case in 

a posture where an initial decision can 

be issued. Unfortunately, these 

necessary procedural steps can consume 

several months. For example, a motion 

to compel responses to discovery must 

be filed after the responses were due; 

followed by a time period for 

respondent to reply to the motion; 

followed by a time period for the ALJ to 

issue an order; followed by another time 

period for respondent’s compliance; 

followed by BOE’s motion for sanctions 

for failure to comply with the ALJ’s 

order; followed by a period of time for 

respondent’s reply; followed by 

issuance of the ALJ’s order. Obviously, 

this process is time consuming and 

wasteful of limited resources in 

prosecuting a case which may well turn 

out to be an uncontested or a default 

case. The new rule for default is 

discussed in greater detail below. 

Under the proposed procedure, an 

enforcement action would continue to 

be instituted upon the Commission’s 

issuance of an Order of Investigation 

and Hearing. The Order of Investigation 

and Hearing would set forth specific 

facts alleged by BOE supporting an 

assertion that the respondent has 

violated the Shipping Act, require an 

answer from the respondent, and 

identify the consequences of failure to 

answer or otherwise respond to the 

Order. Such a procedure is employed by 

various other federal agencies in 

conducting investigative adjudications 

including the Federal Trade 

Commission, Commodity Futures 

Trading Commission, Department of 

Housing and Urban Development, and 

the new Consumer Financial Protection 

Bureau (interim final rules). The Order 

of Investigation and Hearing would also 

identify the name and address of each 

respondent subject to the Order; recite 

the legal authority and jurisdiction for 

instituting the proceeding including 

designation of the statutory provisions 

and/or Commission regulations alleged 

to have been violated; include a clear 

and concise statement of facts sufficient 

to inform the respondent of the acts or 

practices alleged to constitute a 

violation of the law; include a statement 

of the civil penalties, cease and desist 

order, and any other appropriate penalty 

that may be imposed; specify the date or 

time period by or in which respondent 

must file an answer with the 

Commission and serve BOE; and a 

statement of the consequences for 

failure to file an answer. 

The new rule contains a separate 

provision addressing the contents of an 

answer to an Order of Investigation and 

Hearing. The Rule would require that a 

respondent must file an answer with the 

Commission and serve the answer on 

BOE within 25 days after being served 

with the Order. The rule further 

provides that the answer must contain 

a concise statement of the facts upon 

which each ground of defense is based 

and an admission, denial, or 

explanation of each fact alleged in the 

Order, or, if the respondent does not 

have sufficient knowledge of the facts to 

prepare a response, a statement to that 

effect. Factual allegations in the Order 

not answered or addressed would be 

deemed to be admitted. 

Rule 64—Alternative Dispute 

Resolution 

The Commission has long held the 

policy of using alternative means of 

dispute resolution to the fullest extent 

compatible with the law and the 

agency’s mission and resources. The 

Commission’s policy statement requires 

parties to consider the use of alternative 

dispute resolution to resolve disputes at 

an early stage. 46 CFR 502.401. 

Recently, in Fact Finding 27, Potentially 

Unlawful, Unfair or Deceptive Ocean 

Transportation Practices Related to the 

Movement of Household Goods or 

Personal Property in U.S.-Foreign 

Oceanborne Trades, the Fact Finding 

Officer recommended that the 

Commission adjust its ADR 

requirements by requiring a mandatory 

mediation period in formal proceedings 

involving household goods. The 

Commission subsequently adopted this 

recommendation. 

Accordingly, the Commission has 

determined to modify its rules to require 

a preliminary dispute resolution 

conference in all formal proceedings. 

Under the new section 502.64, parties 

will be required to participate in a 

preliminary conference to determine 

whether the matter in dispute may be 

resolved through the use of mediation or 

other means of voluntary alternative 

dispute resolution. Following the 

conference, the parties would determine 

whether to proceed with alternative 

dispute resolution. 

Rule 65—Decision on Default 

The Commission is proposing new 

procedural rules on default which 

should clarify the process that will 

occur when a party fails to participate 

or respond in a Commission proceeding. 

The proposed rule states in pertinent 

part that ‘‘[w]hen a party is found to be 


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12530 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

in default, the Commission or the 

presiding officer may issue a decision 

on default upon consideration of the 

record.’’ 

The default rule is modeled on that of 

other agencies that employ a similar 

enforcement procedure. A defaulting 

respondent may petition the 

Commission to set aside a decision on 

default, which may be granted to 

prevent injustice upon a showing of 

good cause. While the federal rules do 

not set a time limit for the filing of such 

a motion, it is believed that a finite 

period should be set. The proposed rule 

requires that a motion be filed within 22 

days after service of the decision on 

default to coincide with the current time 

period for the filing of exceptions to an 

initial decision. 

Rule 68—Motion for Leave To 

Intervene 

Proposed Rule 68, addresses motions 

for leave to intervene previously found 

in Rule 72, 46 CFR 502.72 Petitions for 

leave to intervene. This section has been 

modernized to reflect intervention of 

right and permissive intervention as 

provided in the FRCP. The proposed 

rule requires that parties seek leave to 

intervene in proceedings by motion, 

rather than by petition. The proposed 

standard recognizes the existing 

standard of the Commission’s rule as 

well as that in FRCP 24 governing 

intervention. 

The proposed rule allows for 

permissive intervention by a federal or 

state government department or agency 

or the Commission’s Bureau of 

Enforcement. The federal or state 

government or agency or the 

Commission’s Bureau of Enforcement is 

required to show that its expertise is 

relevant to one or more issues involved 

in the proceeding and may assist in the 

consideration of those issues. 

Rule 69—Motions 

Proposed Rule 69 reorders the 

subparts from current Rule 73 into a 

more logical fashion and adds two new 

paragraphs. Paragraph (f) clarifies when 

responses to written motions are 

permitted. Paragraph (g) defines 

dispositive motions, because dispositive 

and non-dispositive motions are treated 

differently pursuant to proposed rules 

70 and 71. 

Rule 70—Procedure for Dispositive 

Motions 

Proposed Rule 70 addresses 

dispositive motions. Because these 

motions may dispose of all or part of a 

proceeding, they are handled differently 

from non-dispositive motions. 

Dispositive motions must include 

specific information. Non-moving 

parties must file responses within 15 

days. The moving party may file a reply 

within 7 days thereafter. No further 

reply may be filed unless requested by 

the presiding officer or upon a showing 

of extraordinary circumstances. Because 

these motions may be dispositive, the 

presiding officer may request additional 

briefing to ensure a full record. 

Previously, additional time and briefs 

were permitted on a case by case basis. 

Rule 71—Procedures for NonDispositive Motions 

Proposed Rule 71 addresses nondispositive motions. These are 

frequently motions regarding discovery 

disputes or requesting an extension of a 

deadline. They do not tend to be as 

complex and do not require as much 

time to address as dispositive motions. 

Therefore, proposed Rule 71 requires 

the parties to attempt to confer to try to 

resolve the dispute before filing the 

motion. If a motion is still required (e.g. 

to extend a date) the motion will state 

whether it is opposed. If the motion is 

opposed, the non-moving party must 

file a response within 7 days. A reply 

is only permitted upon a showing of 

extraordinary circumstances. This will 

allow non-dispositive motions to be 

resolved more quickly and efficiently. 

Rule 72—Dismissals 

Proposed Rule 72 clarifies the process 

for seeking voluntary and involuntary 

dismissals. Without such a rule, parties 

were not always certain how to present 

these dismissals. The rule is similar to 

FRCP 41. 

Subpart L—Disclosures and Discovery 

The Commission proposes to revise 

its discovery rules found in 46 CFR 

Subpart L to modernize and more 

closely conform them to the current 

version of the FRCP and to encourage 

focused and expeditious use and 

completion of discovery. The Shipping 

Act of 1984 provides: ‘‘In an 

investigation or adjudicatory proceeding 

under this part—* * * (2) a party may 

use depositions, written interrogatories, 

and discovery procedures under 

regulations prescribed by the 

Commission that, to the extent 

practicable, shall conform to the Federal 

Rules of Civil Procedure (28 App. 

U.S.C.).’’ 46 U.S.C. 41303(a). In 1984, 

the Commission promulgated discovery 

rules based on the federal rules as they 

then existed. The Commission 

promulgated minor amendments to Rule 

203 in 1993 and Rule 201 in 1999, but 

in all other respects the rules are 

unchanged since 1984. The FRCP on 

discovery, on the other hand, has been 

extensively revised since 1984. 

As a general matter, to ensure that 

FMC proceedings are conducted as 

efficiently as possible, the Commission 

does not propose to adopt the various 

deadlines from the FRCP. To ensure 

parties are present in the case, proposed 

deadlines would run from the date of 

the filing of the answer, as opposed to 

the complaint, including the deadline 

for filing initial disclosures 

(§ 502.201(b)), completion of discovery 

(§ 502.201(g)), and initial duty to confer 

(§ 502.201(h)). The Commission is not 

proposing to adopt many of those rules 

that pertain to trials, as trial-type 

hearings are currently the exception in 

Commission proceedings. The 

Commission is at this time 

incorporating references to 

electronically stored documents and 

proposing to treat those as the FRCP 

does in the context of discovery. 

Rule 201—Duty To Disclose; General 

Provisions Governing Discovery 

Proposed Rule 201 governs discovery 

generally, defines the scope of discovery 

and its limits, and provides for limited 

initial disclosures to be made by all 

parties to any Commission proceeding 

within seven days of receipt of 

respondent’s answer. The proposed 

requirement to make initial disclosures 

would be a new requirement in 

Commission proceedings. FRCP 26 

requires initial disclosures in federal 

courts, and the procedural rules of other 

federal agencies, such as the Federal 

Trade Commission, require initial 

disclosure in proceedings. Proposed 

Rule 201 would require the parties to 

confer within 14 days of receipt of 

respondent’s answer, to complete 

discovery within 120 days of the answer 

and to require supplementation of 

responses to discovery. Currently, 

discovery must be completed within 

120 days of notice of the complaint 

filing. This limitation has proven to be 

unrealistic, particularly because the 

actual date of receipt of an answer can 

vary greatly. Proposed Rule 201 would 

adopt the federal rule on the scope of 

discovery as it currently exists in FRCP 

26(b)(1). 

Proposed Rule 201 also requires the 

disclosure of expert witnesses. The 

substance of the requirement tracks the 

federal rule, except with respect to the 

time for disclosures to be provided. The 

federal rule requires disclosure of 

experts and their reports no later than 

90 days before trial. This deadline is not 

suitable in view of the Commission’s 

120 day discovery period. Therefore, 

parties are required to address expert 

disclosures and discovery as part of the 


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‘‘duty to confer’’ requirement and, if 

experts will be used, schedule 

disclosure and exchange of reports in 

their proposed schedule. 

Rule 202—Persons Before Whom 

Depositions May Be Taken 

Rule 203—Depositions by Oral 

Examination 

Proposed Rules 202 and 203 would 

modernize Commission rules on 

depositions to conform with current 

FRCP 28, 29, and 30. While the 

Commission’s rules have followed the 

FRCP in other respects, there are 

currently no limitations on the number 

of depositions. The proposed rule 

would limit the number of depositions 

that may be taken without stipulation or 

leave of the presiding officer to 20. 

Rule 204—Depositions by Written 

Questions 

Rule 205—Interrogatories to Parties 

Proposed Rules 204 and 205 pertain 

to interrogatories and also conform to 

FRCP 31 and 33. A party would be 

permitted to serve no more than 50 

written interrogatories without 

stipulation or leave of the presiding 

officer. The Commission seeks 

comments specifically on the issue of 

whether the limitations described in 

this paragraph are appropriate in 

Commission proceedings. 

Rule 206—Producing Documents, 

Electronically Stored Information, and 

Tangible Things, or Entering Onto 

Land, for Inspection and Other 

Purposes 

Proposed Rule 206 would continue to 

echo FRCP 34, but would incorporate 

reference to production of electronically 

stored information and establishes that 

responses to requests are due within 30 

days, whereas the current rule does not 

specify a deadline for such a response. 

Rule 207—Requests for Admission 

Rule 208—Use of Discovery Procedures 

Directed to Commission Staff Personnel 

Proposed Rule 207 generally follows 

FRCP 36, although it does not allow the 

award of expenses if a party fails to 

admit a matter that is later proven true. 

Proposed Rule 208 remains unchanged 

but is reprinted in the proposed rule for 

ease of reference. 

Rule 209—Use of Depositions at 

Hearings 

Proposed Rule 209 continues to 

follow FRCP 32, but does not reference 

that rule in its entirety as certain 

provisions, such as FRCP 32(a)(5) 

(Limitations on use) are not typically 

relevant in Commission proceedings. 

References to the Federal Rules of 

Evidence are removed as they do not 

generally apply to administrative 

proceedings. 

Rule 210—Motions To Compel Initial 

Disclosure or Compliance With 

Discovery Requests; Failure To Comply 

With Order To Make Disclosure or 

Answer or Produce Documents; 

Sanctions; Enforcement 

Proposed Rule 210 is revised to more 

closely conform to FRCP 37(b)(2)(A), 

and makes the failure to make initial 

disclosures subject to a motion to 

compel and sanctions. The proposed 

rule also changes the response period to 

7 days in accordance with the general 

rule applicable to responses to motions. 

Although this rulemaking affects only 

the Commission’s Rules of Practice and 

Procedure, and is therefore not subject 

to notice-and-comment requirements of 

the Administrative Procedure Act, 5 

U.S.C. 553(b)(A), the Commission 

believes that the views of the public, 

especially practitioners who frequently 

appear before it, should be considered. 

Therefore, through this Notice of 

Proposed Rulemaking, the Commission 

again encourages the public to submit 

views on these proposed changes to its 

procedural rules. 

This proposed rule is not a ‘‘major 

rule’’ under 5 U.S.C. 804(2). 

List of Subjects in 46 CFR Part 502 

Administrative practice and 

procedure, Claims, Equal access to 

justice, Investigations, Lawyers, 

Maritime carriers, Penalties, Reporting 

and recordkeeping requirements. 

For the reasons stated in the 

supplementary information, the Federal 

Maritime Commission proposes to 

amend subparts E and L of 46 CFR Part 

502 as follows. 

PART 502—RULES OF PRACTICE AND 

PROCEDURE 

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; 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. 

305, 40103–40104, 40304, 40306, 40501– 

40503, 40701–40706, 41101–41109, 41301– 

41309, 44101–44106; E.O. 11222 of May 8, 

1965, 30 FR 6469, 3 CFR 1964–1965 Comp. 

p. 306; 21 U.S.C. 853a. 

2. Revise subpart E to read as follows: 

Subpart E—Proceedings; Pleadings; 

Motions; Replies 

§ 502.61 Proceedings. 

(a) Any person may commence a 

proceeding by filing a complaint (Rule 

62) for a formal adjudication under 

normal or shortened procedures 

(subpart K) or by filing a claim for the 

informal adjudication of small claims 

(subpart S). A person may also file a 

petition for a rulemaking (Rule 51), for 

an exemption (Rule 74), for a 

declaratory order (Rule 75), or for other 

appropriate relief (Rule 76), which 

becomes a proceeding when the 

Commission assigns a formal docket 

number to the petition. The Commission 

may commence a proceeding for a 

rulemaking, for an adjudication 

(including Commission enforcement 

action under § 502.63), or a nonadjudicatory investigation upon petition 

or on its own initiative by issuing an 

appropriate order. 

(b) In the order instituting a 

proceeding or in the notice of filing of 

complaint and assignment, the 

Commission must establish dates by 

which the initial decision and the final 

Commission decision will be issued. 

These dates may be extended by order 

of the Commission for good cause 

shown. [Rule 61.] 

§ 502.62 Private party complaints for 

formal adjudication. 

(a) Filing a complaint for formal 

adjudication. (1) A person may file a 

sworn complaint alleging violation of 

the Shipping Act of 1984, 46 U.S.C. 

40101 et seq. 

(2) Form. Complaints should be 

drafted in accordance with the rules in 

this section. 

(3) Content of complaint. The 

complaint must be verified and must 

contain the following: 

(i) The name, street address, and 

email address of each complainant, and 

the name, address, and email address of 

each complainant’s attorney or 

representative, the name, address, and, 

if known, email address of each person 

against whom complaint is made; 

(ii) A recitation of the legal authority 

and jurisdiction for institution of the 

proceeding, with specific designation of 

the statutory provisions alleged to have 

been violated; 

(iii) A clear and concise factual 

statement sufficient to inform each 

respondent with reasonable definiteness 

of the acts or practices alleged to be in 

violation of the law; and 

(iv) A request for the relief and other 

affirmative action sought. 

(v) Shipping Act violation must be 

alleged. If the complaint fails to indicate 

the sections of the Act alleged to have 

been violated or clearly to state facts 

which support the allegations, the 

Commission may, on its own initiative, 

require the complaint to be amended to 


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12532 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

supply such further particulars as it 

deems necessary. 

(4) Complaints seeking reparation; 

statute of limitations. A complaint may 

seek reparation (money damages) for 

injury caused by violation of the 

Shipping Act of 1984. (See subpart O of 

this part.) 

(i) Where reparation is sought, the 

complaint must set forth the injury 

caused by the alleged violation and the 

amount of alleged damages. 

(ii) Except under unusual 

circumstances and for good cause 

shown, reparation will not be awarded 

upon a complaint in which it is not 

specifically requested, nor upon a new 

complaint by or for the same 

complainant which is based upon a 

finding in the original proceeding. 

(iii) A complaint seeking reparation 

must be filed within three years after the 

claim accrues. Notification to the 

Commission that a complaint may or 

will be filed for the recovery of 

reparation will not constitute a filing 

within the applicable statutory period. 

(iv) Civil penalties must not be 

requested and will not be awarded in 

complaint proceedings. 

(5) Oral hearing. The complaint 

should designate whether an oral 

hearing is requested and the desired 

place for any oral hearing. The presiding 

officer will determine whether an oral 

hearing is necessary. 

(6) Filing fee. The complaint must be 

accompanied by remittance of a $221 

filing fee. 

(7) A complaint is deemed filed on 

the date it is received by the 

Commission. 

(b) Answer to a complaint. (1) Time 

for filing. A respondent must file with 

the Commission an answer to the 

complaint and must serve the answer on 

complainant as provided in subpart H of 

this part within 25 days after the date 

of service of the complaint by the 

Commission unless this period has been 

extended under § 502.67 or § 502.102, or 

reduced under § 502.103, or unless 

motion is filed to withdraw or dismiss 

the complaint, in which latter case, 

answer must be filed within 10 days 

after service of an order denying such 

motion. For good cause shown, the 

presiding officer may extend the time 

for filing an answer. 

(2) Contents of answer. The answer 

must be verified and must contain the 

following: 

(i) The name, address, and email 

address of each respondent, and the 

name, address, and email address of 

each respondent’s attorney or 

representative; 

(ii) Admission or denial of each 

alleged violation of the Shipping Act; 

(iii) A clear and concise statement of 

each ground of defense and specific 

admission, denial, or explanation of 

facts alleged in the complaint, or, if 

respondent is without knowledge or 

information thereof, a statement to that 

effect; 

(iv) Any affirmative defenses, 

including allegations of any additional 

facts on which the affirmative defenses 

are based; and 

(3) Oral hearing. The answer should 

designate whether an oral hearing is 

requested and the desired place for such 

hearing. The presiding officer will 

determine whether an oral hearing is 

necessary. 

(4) Counterclaims, crossclaims, and 

third-party complaints. In addition to 

filing an answer to a complaint, a 

respondent may include in the answer 

a counterclaim against the complainant, 

a crossclaim against another respondent, 

or a third-party complaint. A 

counterclaim, a crossclaim, or a thirdparty complaint must allege and be 

limited to violations of the Shipping Act 

within the jurisdiction of the 

Commission. The service and filing of a 

counterclaim, a crossclaim, or a thirdparty complaint and answers or replies 

thereto are governed by the rules and 

requirements of this section for the 

filing of complaints and answers. 

(5) A reply to an answer may not be 

filed unless ordered by the presiding 

officer. 

(6) Effect of failure to file answer. 

(i) Failure of a party to file an answer 

to a complaint, counterclaim, 

crossclaim, or third-party complaint 

within the time provided will be 

deemed to constitute a waiver of that 

party’s right to appear and contest the 

allegations of the complaint, 

counterclaim, crossclaim, or third-party 

complaint to which it has not filed an 

answer and to authorize the presiding 

officer to enter an initial decision on 

default as provided for in 46 CFR 

502.65. Well pled factual allegations in 

the complaint not answered or 

addressed will be deemed to be 

admitted. 

(ii) A party may make a motion for 

initial decision on default. [Rule 62.] 

§ 502.63 Commission enforcement action. 

(a) The Commission may issue an 

Order of Investigation and Hearing 

commencing an adjudicatory 

investigation against one or more 

respondents alleging one or more 

violations of the statutes that it 

administers. 

(b) Contents of Order of Investigation 

and Hearing. The Order of Investigation 

and Hearing must contain the following: 

(1) The name, street address, and, if 

known, email address of each person 

against whom violations are alleged; 

(2) A recitation of the legal authority 

and jurisdiction for institution of the 

proceeding, with specific designation of 

the statutory provisions alleged to have 

been violated; 

(3) A clear and concise factual 

statement sufficient to inform each 

respondent with reasonable definiteness 

of the acts and practices alleged to be in 

violation of the law; 

(4) Notice of penalties, cease and 

desist order, or other affirmative action 

sought; and 

(5) Notice of the requirement to file an 

answer and a statement of the 

consequences of failure to file an 

answer. 

(c) Answer to Order of Investigation 

and Hearing. (1) Time for filing. A 

respondent must file with the 

Commission an answer to the Order of 

Investigation and Hearing and serve a 

copy of the answer on the Bureau of 

Enforcement within 25 days after being 

served with the Order of Investigation 

and Hearing unless this period has been 

extended under § 502.67 or § 502.102, or 

reduced under § 502.103, or unless 

motion is filed to withdraw or dismiss 

the Order of Investigation and Hearing, 

in which latter case, answer must be 

filed within 10 days after service of an 

order denying such motion. For good 

cause shown, the presiding officer may 

extend the time for filing an answer. 

(2) Contents of answer. The answer 

must be verified and must contain the 

following: 

(i) The name, address, and email 

address of each respondent, and the 

name, address, and email address of 

each respondent’s attorney or 

representative; 

(ii) Admission or denial of each 

alleged violation of the Shipping Act; 

(iii) A clear and concise statement of 

each ground of defense and specific 

admission, denial, or explanation of 

facts alleged in the complaint, or, if 

respondent is without knowledge or 

information thereof, a statement to that 

effect; and 

(iv) Any affirmative defenses, 

including allegations of any additional 

facts on which the affirmative defenses 

are based. 

(3) Oral hearing. The answer must 

indicate whether an oral hearing is 

requested and the desired place for such 

hearing.The presiding officer will 

determine whether an oral hearing is 

necessary. 

(4) Effect of failure to file answer. 

(i) Failure of a respondent to file an 

answer to an Order of Investigation and 

Hearing within the time provided will 


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be deemed to constitute a waiver of the 

respondent’s right to appear and contest 

the allegations in the Order of 

Investigation and Hearing and to 

authorize the presiding officer to enter 

a decision on default as provided for in 

46 CFR 502.65. Well plead factual 

allegations in the Order of Investigation 

and Hearing not answered or addressed 

will be deemed to be admitted. 

(ii) The Bureau of Enforcement may 

make a motion for decision on default. 

[Rule 63.] 

§ 502.64 Alternative dispute resolution. 

(a) Mandatory Preliminary 

Conference. (1) Participation. 

Subsequent to service of a complaint or 

Order of Investigation and Hearing, 

parties must participate in a preliminary 

conference with the Commission’s 

Office of Consumer Affairs and Dispute 

Resolution Services (CADRS) to 

determine whether the matter may be 

resolved through the use of alternative 

dispute resolution pursuant to Subpart 

U of this Part. The preliminary 

conference may be conducted either in 

person or via telephone, video 

conference, or other forum. 

(2) Timing. The Director of CADRS 

will appoint a neutral to convene the 

conference within thirty (30) days of the 

filing of an answer. The neutral, within 

his or her discretion, may confer with 

each party separately at any time. 

(b) Continued Availability of Dispute 

Resolution Services to Resolve 

Procedural and other Disputes. 

Termination of a dispute resolution 

proceeding does not preclude the 

parties from seeking dispute resolution 

services at a later time to explore 

resolution of procedural or substantive 

issues. 

(c) Proceeding Not Stayed During 

Dispute Resolution Process. Unless 

otherwise ordered by the presiding 

officer, a mediation proceeding does not 

stay or delay the procedural time 

requirements set forth by rule or order 

of the presiding officer. 

(d) Confidentiality. All dispute 

resolution proceedings are subject to the 

confidentiality provisions set forth in 

§ 502.405 of this part. [Rule 64.] 

§ 502.65 Decision on default. 

(a) A party to a proceeding may be 

deemed to be in default if that party 

fails: 

(1) To appear, in person or through a 

representative, at a hearing or 

conference of which that party has been 

notified; 

(2) To answer, to respond to a 

dispositive motion within the time 

provided, or otherwise to defend the 

proceeding; or 

(3) To cure a deficient filing within 

the time specified by the Commission or 

the presiding officer. 

(b) When a party is found to be in 

default, the Commission or the 

presiding officer may issue a decision 

on default upon consideration of the 

record, including the complaint or 

Order of Investigation and Hearing. 

(c) The presiding officer may require 

additional information or clarification 

when needed to issue a decision on 

default, including a determination of the 

amount of reparations or civil penalties 

where applicable. 

(d) A respondent who has defaulted 

may file with the Commission a petition 

to set aside a decision on default. Such 

a petition must be made within 22 days 

of the service date of the decision, state 

in detail the reasons for failure to appear 

or defend, and specify the nature of the 

proposed defense. In order to prevent 

injustice, the Commission may for good 

cause shown set aside a decision on 

default. [Rule 65.] 

§ 502.66 Amendments or supplements to 

pleadings. 

(a) Amendments or supplements to 

any pleading (complaint, Order of 

Investigation and Hearing, 

counterclaim, crossclaim, third-party 

complaint, and answers thereto) will be 

permitted or rejected, either in the 

discretion of the Commission or 

presiding officer. After a case is 

assigned for hearing, no amendment 

must be allowed which would broaden 

the issues, without opportunity to reply 

to such amended pleading and to 

prepare for the broadened issues. The 

presiding officer may direct a party to 

state its case more fully and in more 

detail by way of amendment. 

(b) A response to an amended 

pleading must be filed and served in 

conformity with the requirements of 

subpart H of this part and § 502.69, 

unless the Commission or the presiding 

officer directs otherwise. Amendments 

or supplements allowed prior to hearing 

will be served in the same manner as 

the original pleading, except that the 

presiding officer may authorize the 

service of amended complaints directly 

by the parties rather than by the 

Secretary of the Commission. 

(c) Whenever by the rules in this part 

a pleading is required to be verified, the 

amendment or supplement must also be 

verified. [Rule 66.] 

§ 502.67 Motion for more definite 

statement. 

If a pleading (including a complaint, 

counterclaim, crossclaim, or third-party 

complaint filed pursuant to § 502.62) to 

which a responsive pleading is 

permitted is so vague or ambiguous that 

a party cannot reasonably prepare a 

response, the party may move for a more 

definite statement before filing a 

responsive pleading. The motion must 

be filed within 15 days of the pleading 

and must point out the defects 

complained of and the details desired. 

If the motion is granted and the order of 

the presiding officer is not obeyed 

within 10 days after service of the order 

or within such time as the presiding 

officer sets, the presiding officer may 

strike the pleading to which the motion 

was directed or issue any other 

appropriate order. If the motion is 

denied, the time for responding to the 

pleading must be extended to a date 10 

days after service of the notice of denial. 

[Rule 67.] 

§ 502.68 Motion for leave to intervene. 

(a) A motion for leave to intervene 

may be filed in any proceeding. 

(b) Procedure for intervention. (1) 

Upon request, the Commission will 

furnish a service list to any member of 

the public pursuant to part 503 of this 

chapter. 

(2) The motion must: 

(i) Comply with all applicable 

provisions of subpart A of this part; 

(ii) Indicate the type of intervention 

sought; 

(iii) Describe the interest and position 

of the person seeking intervention, and 

address the grounds for intervention set 

forth in paragraph (c) of this section; 

(iv) Describe the nature and extent of 

its proposed participation, including the 

use of discovery, presentation of 

evidence, and examination of witnesses; 

(v) State the basis for affirmative 

relief, if affirmative relief is sought; and 

(vi) Be served on existing parties by 

the person seeking intervention 

pursuant to subpart H of this part. 

(3) A response to a motion to 

intervene must be served and filed 

within 15 days after the date of service 

of the motion. 

(c)(1) Intervention of right. The 

presiding officer or Commission must 

permit anyone to intervene who claims 

an interest relating to the property or 

transaction that is subject of the 

proceeding, and is so situated that 

disposition of the proceeding may as a 

practical matter impair or impede the 

ability of such person to protect its 

interest, unless existing parties 

adequately represent that interest. 

(2) Permissive intervention. 

(i) In general. The presiding officer or 

Commission may permit anyone to 

intervene who shows that a common 

issue of law or fact exists between such 

person’s interest and the subject matter 

of the proceeding; that intervention 


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would not unduly delay or broaden the 

scope of the proceeding, prejudice the 

adjudication of the rights, or be 

duplicative of the positions of any 

existing party; and that such person’s 

participation may reasonably be 

expected to assist in the development of 

a sound record. 

(ii) By a government department, 

agency, or the Commission’s Bureau of 

Enforcement. The presiding officer or 

Commission may permit intervention by 

a federal or state government 

department or agency or the 

Commission’s Bureau of Enforcement 

upon a showing that its expertise is 

relevant to one or more issues involved 

in the proceeding and may assist in the 

consideration of those issues. 

(3) The timeliness of the motion will 

also be considered in determining 

whether a motion will be granted under 

paragraph (b)(2) of this section and 

should be filed no later than 30 days 

after publication in the Federal Register 

of the Commission’s order instituting 

the proceeding or the notice of the filing 

of the complaint. Motions filed after that 

date must show good cause for the 

failure to file within the 30-day period. 

(d) Use of discovery by an intervenor. 

(1) Absent good cause shown, an 

intervenor desiring to utilize the 

discovery procedures provided in 

subpart L must commence doing so no 

more than 15 days after its motion for 

leave to intervene has been granted. 

(2) The Commission or presiding 

officer may impose reasonable 

limitations on an intervenor’s 

participation in order to: (i) Restrict 

irrelevant or duplicative discovery, 

evidence, or argument; (ii) have 

common interests represented by a 

spokesperson; and (iii) retain authority 

to determine priorities and control the 

course of the proceeding. 

(3) The use of discovery procedures 

by an intervenor whose motion was 

filed more than 30 days after 

publication in the Federal Register of 

the Commission’s order instituting the 

proceeding or the notice of the filing of 

the complaint will not be allowed if the 

presiding officer determines that the use 

of the discovery by the intervenor will 

unduly delay the proceeding. [Rule 68.] 

§ 502.69 Motions. 

(a) In any adjudication, an application 

or request for an order or ruling not 

otherwise specifically provided for in 

this part must be by motion. After the 

assignment of a presiding officer to a 

proceeding and before the issuance of 

his or her recommended or initial 

decision, all motions must be addressed 

to and ruled upon by the presiding 

officer unless the subject matter of the 

motion is beyond his or her authority, 

in which event the matter must be 

referred to the Commission. If the 

proceeding is not before the presiding 

officer, motions must be designated as 

petitions and must be addressed to and 

ruled upon by the Commission. 

(b) Motions must be in writing, except 

that a motion made at a hearing may be 

sufficient if stated orally upon the 

record. 

(c) Oral argument upon a written 

motion may be permitted at the 

discretion of the presiding officer or the 

Commission. 

(d) A repetitious motion will not be 

entertained. 

(e) All written motions must state 

clearly and concisely the purpose of and 

the relief sought by the motion, the 

statutory or principal authority relied 

upon, and the facts claimed to 

constitute the grounds supporting the 

relief requested; and must conform with 

the requirements of subpart H of this 

part. 

(f) Any party may file and serve a 

response to any written motion, 

pleading, petition, application, etc., 

permitted under this part except as 

otherwise provided respecting answers 

(§ 502.62), shortened procedure (subpart 

K of this part), briefs (§ 502.221), 

exceptions (§ 502.227), and reply to 

petitions for attorney fees under the 

Equal Access to Justice Act 

(§ 502.503(b)(1)). 

(g) Dispositive and non-dispositive 

motions defined. For the purpose of 

these rules, dispositive motion means a 

motion for decision on the pleadings; 

motion for summary decision or partial 

summary decision; motion to dismiss all 

or part of a proceeding or party to a 

proceeding; motion for involuntary 

dismissal; motion for initial decision on 

default; or any other motion for a final 

determination of all or part of a 

proceeding. All other motions, 

including all motions related to 

discovery, are non-dispositive motions. 

[Rule 69.] 

§ 502.70 Procedure for dispositive 

motions. 

(a) A dispositive motion as defined in 

§ 502.69(g) of this subpart must include 

a concise statement of the legal basis of 

the motion with citation to legal 

authority and a statement of material 

facts with exhibits as appropriate. 

(b) A response to a dispositive motion 

must be served and filed within 15 days 

after the date of service of the motion. 

The response must include a concise 

statement of the legal basis of the 

response with citation to legal authority 

and specific responses to any statements 

of material facts with exhibits as 

appropriate. 

(c) A reply to the response to a 

dispositive motion may be filed within 

7 days after the date of service of the 

response to the motion. A reply may not 

raise new grounds for relief or present 

matters that do not relate to the 

response and must not reargue points 

made in the opening motion. 

(d) The non-moving party may not file 

any further reply unless requested by 

the Commission or presiding officer, or 

upon a showing of extraordinary 

circumstances. 

(e) Page limits. Neither the motion nor 

the response may exceed 30 pages, 

excluding exhibits or appendices, 

without leave of the presiding officer. A 

reply may not exceed 15 pages. [Rule 

70.] 

§ 502.71 Procedure for non-dispositive 

motions. 

(a) Duty to confer. Before filing a nondispositive motion as defined in 

§ 502.69(g) of this subpart, the parties 

must attempt to discuss the anticipated 

motion with each other in a good faith 

effort to determine whether there is any 

opposition to the relief sought and, if 

there is opposition, to narrow the areas 

of disagreement. The moving party must 

state within the body of the motion 

what attempt was made or that the 

discussion occurred and whether the 

motion is opposed. 

(b) A response to a non-dispositive 

motion must be served and filed within 

7 days after the date of service of the 

motion. 

(c) The moving party may not file a 

reply to a response to a non-dispositive 

motion unless requested by the 

Commission or presiding officer, or 

upon a showing of extraordinary 

circumstances. 

(d) Page limits. Neither the motion 

nor the response may exceed 10 pages, 

excluding exhibits or appendices, 

without leave of the presiding officer. 

[Rule 71.] 

§ 502.72 Dismissals. 

(a) Voluntary dismissal—(1) By the 

complainant. The complainant may 

dismiss an action without an order from 

the presiding officer by filing a notice of 

dismissal before the opposing party 

serves either an answer, a motion to 

dismiss, or a motion for summary 

decision; or a stipulation of dismissal 

signed by all parties who have 

appeared. Unless the notice or 

stipulation states otherwise, the 

dismissal is without prejudice. 

(2) By order of the presiding officer. 

Except as provided in paragraph (a)(1) 

of this section, an action may be 


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dismissed at the complainant’s request 

only by order of the presiding officer or 

the Commission, on terms the presiding 

officer considers proper. If a respondent 

has pleaded a counterclaim before being 

served with the complainant’s motion to 

dismiss, the action may be dismissed 

over the respondent’s objection only if 

the counterclaim can remain pending 

for independent adjudication. Unless 

the order states otherwise, a dismissal 

under this paragraph is without 

prejudice. 

(b) Involuntary dismissal; effect. If the 

complainant fails to prosecute or to 

comply with these rules or an order in 

the proceeding, a respondent may move 

to dismiss the action or any claim 

against it. Unless the dismissal order 

states otherwise, a dismissal under this 

subpart, except one for lack of 

jurisdiction or failure to join a party, 

operates as an adjudication on the 

merits. [Rule 72.] 

§ 502.73 Order to show cause. 

The Commission may institute a 

proceeding by order to show cause. The 

order must be served upon all persons 

named therein, must include the 

information specified in § 502.143, must 

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 73.] 

§ 502.74 Exemption procedures—General. 

(a) Authority. The Commission, upon 

application or on its own motion, may 

by order or regulation exempt for the 

future any class of agreements between 

persons subject to the Shipping Act of 

1984 or any specified activity of those 

persons from any requirement of the Act 

if the Commission 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 (46 U.S.C. 

40103). A petition for exemption must 

state the particular requirement of the 

Shipping Act of 1984 for which 

exemption is sought. The petition must 

also include a statement of the reasons 

why an exemption should be granted or 

revoked, must provide information 

relevant to any finding required by the 

Act and must comply with § 502.76. 

Where a petition for exemption of an 

individual agreement is made, the 

application must include a copy of the 

agreement. Unless a petition specifically 

requests an exemption by regulation, the 

Commission must evaluate the petition 

as a request for an exemption by order. 

(c) Participation by interested 

persons. No order or regulation 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 the Commission’s own 

motion, must be published in the 

Federal Register. The notice must 

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 

Commission’s offices in Washington, 

DC; and 

(5) The final date for filing comments 

regarding the proposal. [Rule 74.] 

§ 502.75 Declaratory orders and fee. 

(a)(1) The Commission may, in its 

discretion, issue a declaratory order to 

terminate a controversy or to remove 

uncertainty. 

(2) Petitions for the issuance thereof 

must: State clearly and concisely the 

controversy or uncertainty; name the 

persons and cite the statutory authority 

involved; include a complete statement 

of the facts and grounds prompting the 

petition, together with full disclosure of 

petitioner’s interest; be served upon all 

parties named therein; and conform to 

the requirements of subpart H of this 

part. 

(3) Petitions must be accompanied by 

remittance of a $241 filing fee. 

(b) Petitions under this section must 

be limited to matters involving conduct 

or activity regulated by the Commission 

under statutes administered by the 

Commission. The procedures of this 

section must be invoked solely for the 

purpose of obtaining declaratory rulings 

which will allow persons to act without 

peril upon their own view. 

Controversies involving an allegation of 

violation by another person of statutes 

administered by the Commission, for 

which coercive rulings such as payment 

of reparation or cease and desist orders 

are sought, are not proper subjects of 

petitions under this section. Such 

matters must be adjudicated either by 

filing of a complaint under section 11 of 

the Shipping Act of 1984 (46 U.S.C. 

41301–41302, 41305–41307(a)) and 

§ 502.62, or by filing of a petition for 

investigation under § 502.76. 

(c) Petitions under this section must 

be accompanied by the complete factual 

and legal presentation of petitioner as to 

the desired resolution of the controversy 

or uncertainty, or a detailed explanation 

why such can only be developed 

through discovery or evidentiary 

hearing. 

(d) Responses to the petition must 

contain the complete factual and legal 

presentation of the responding party as 

to the desired resolution, or a detailed 

explanation why such can only be 

developed through discovery or 

evidentiary hearing. Responses must 

conform to the requirements of § 502.69 

and must be served pursuant to subpart 

H of this part. 

(e) No additional submissions will be 

permitted unless ordered or requested 

by the Commission or the presiding 

officer. If discovery or evidentiary 

hearing on the petition is deemed 

necessary by the parties, such must be 

requested in the petition or responses. 

Requests must state in detail the facts to 

be developed, their relevance to the 

issues, and why discovery or hearing 

procedures are necessary to develop 

such facts. 

(f)(1) A notice of filing of any petition 

which meets the requirements of this 

section must be published in the 

Federal Register. The notice will 

indicate the time for filing of responses 

to the petition. If the controversy or 

uncertainty is one of general public 

interest, and not limited to specifically 

named persons, opportunity for 

response will be given to all interested 

persons including the Commission’s 

Bureau of Enforcement. 

(2) In the case of petitions involving 

a matter limited to specifically named 

persons, participation by persons not 

named therein will be permitted only 

upon grant of intervention by the 

Commission pursuant to § 502.68. 

(3) Petitions for leave to intervene 

must be submitted on or before the 

response date and must be accompanied 

by intervenor’s complete response 

including its factual and legal 

presentation in the matter. 

(g) Petitions for declaratory order 

which conform to the requirements of 

this section will be referred to a formal 

docket. Referral to a formal docket is not 

to be construed as the exercise by the 

Commission of its discretion to issue an 


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order on the merits of the petition. [Rule 

75.] 

§ 502.76 Petitions—General and fee. 

(a) Except when submitted in 

connection with a formal proceeding, all 

claims for relief or other affirmative 

action by the Commission, including 

appeals from Commission staff action, 

except as otherwise provided in this 

part, must be by written petition, which 

must state clearly and concisely the 

petitioner’s grounds of interest in the 

subject matter, the facts relied upon and 

the relief sought, must cite by 

appropriate reference the statutory 

provisions or other authority relied 

upon for relief, must be served upon all 

parties named therein, and must 

conform otherwise to the requirements 

of subpart H of this part. Responses 

thereto must conform to the 

requirements of § 502.67. 

(b) Petitions must be accompanied by 

remittance of a $241 filing fee. [Rule 76.] 

§ 502.77 Proceedings involving 

assessment agreements. 

(a) In complaint proceedings 

involving assessment agreements filed 

under section 5(e) of the Shipping Act 

of 1984 (46 U.S.C. 40301(e), 40305), 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. 

(b) Any party to a proceeding 

conducted under this section who 

desires to utilize the prehearing 

discovery procedures provided by 

subpart L of this part must commence 

doing so at the time it files its initial 

pleading, i.e., complaint, answer, or 

petition for leave to intervene. 

Discovery matters accompanying 

complaints must be filed with the 

Secretary of the Commission for service 

pursuant to § 502.113. Answers or 

objections to discovery requests must be 

subject to the normal provisions set 

forth in subpart L. 

(c) Exceptions to the decision of the 

presiding officer, filed pursuant to 

§ 502.227, must be filed and served no 

later than 15 days after date of service 

of the initial decision. Replies thereto 

must be filed and served no later than 

15 days after date of service of 

exceptions. In the absence of 

exceptions, the decision of the presiding 

officer must be final within 30 days 

from the date of service, unless within 

that period, a determination to review is 

made in accordance with the procedures 

outlined in § 502.227. [Rule 77.] 

§ 502.78 Brief of an amicus curiae. 

(a) A brief of an amicus curiae may be 

filed only by leave of the Commission 

or the presiding officer granted on 

motion with notice to the parties, or at 

the request of the Commission or the 

presiding officer, except that leave must 

not be required when the brief is 

presented by the United States or any 

agency or officer of the United States. 

The brief may be conditionally filed 

with the motion for leave. A brief of an 

amicus curiae must be limited to 

questions of law or policy. 

(b) A motion for leave to file an 

amicus brief must identify the interest 

of the applicant and must state the 

reasons why such a brief is desirable. 

(c) Except as otherwise permitted by 

the Commission or the presiding officer, 

an amicus curiae must file its brief no 

later than 7 days after the initial brief of 

the party it supports is received at the 

Commission. An amicus curiae that is 

not supporting either party must file its 

brief no later than 7 days after the initial 

brief of the first party filing a brief is 

received at the Commission. The 

Commission or the presiding officer 

must grant leave for a later filing only 

for cause shown, in which event the 

period within which an opposing party 

may answer must be specified. 

(d) A motion of an amicus curiae to 

participate in oral argument will be 

granted only in accordance with the 

requirements of § 502.241. [Rule 78.] 

3. Revise subpart L to read as follows: 

Subpart L—Disclosures and Discovery 

§ 502.201 Duty to disclose; general 

provisions governing discovery. 

(a) Applicability. Unless otherwise 

stated in subpart S, T, or any other 

subpart of this part, the procedures 

described in this subpart are available in 

all adjudicatory proceedings under the 

Shipping Act of 1984. 

(b) Initial disclosures. Except as 

otherwise stipulated or ordered by the 

Commission or presiding officer, and 

except as provided in this subpart 

related to disclosure of expert 

testimony, all parties must, within 7 

days of service of a respondent’s answer 

to the complaint or Order of 

Investigation and Hearing and without 

awaiting a discovery request, provide to 

each other: 

(1) The name and, if known, the 

address and telephone number of each 

individual likely to have discoverable 

information that the disclosing party 

may use to support its claims or 

defenses, unless the use would be solely 

for impeachment; 

(2) A copy, or a description by 

category and location, of all documents, 

electronically stored information, and 

tangible things that the disclosing party 

has in its possession, custody, or control 

and may use to support its claims or 

defenses, unless the use would be solely 

for impeachment; 

(3) An estimate of any damages 

claimed by the disclosing party who 

must also make available for inspection 

and copying the documents or other 

evidentiary material, unless privileged 

or protected from disclosure, on which 

the estimate is based, including 

materials bearing on the nature and 

extent of injuries suffered. 

(c) For parties served or joined later. 

A party that is first served or otherwise 

joined after the answer is made must 

make the initial disclosures within 5 

days after an answer is filed by the latejoined party, unless a different time is 

set by stipulation or order of presiding 

officer. All parties must also produce to 

the late-joined party any initial 

disclosures previously made. 

(d) Disclosure of expert testimony—(1) 

In general. A party must disclose to the 

other parties the identity of any witness 

it may use in the proceeding to present 

evidence as an expert. 

(2) Witnesses who are required to 

provide a written report. Unless 

otherwise stipulated or ordered by the 

presiding officer, if the witness is one 

retained or specially employed to 

provide expert testimony in the 

proceeding or one whose duties as the 

party’s employee regularly involve 

giving expert testimony, the disclosure 

must be accompanied by a written 

report, prepared and signed by the 

witness. The report must contain: 

(i) A complete statement of all 

opinions the witness will express and 

the basis and reasons for them; 

(ii) The facts or data considered by the 

witness in forming them; 

(iii) Any exhibits that will be used to 

summarize or support them; 

(iv) The witness’s qualifications, 

including a list of all publications 

authored in the previous 10 years; 

(v) A list of all other proceedings or 

cases in which, during the previous 4 

years, the witness testified as an expert 

in a trial, an administrative proceeding, 

or by deposition; and 

(vi) A statement of the compensation 

to be paid for the study and testimony 

in the proceeding. 

(3) Witnesses who are not required to 

provide a written report. Unless 

otherwise stipulated or ordered by the 

presiding officer, if the witness is not 

required to provide a written report 

under paragraph (2) above, the 

disclosure must state: 


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(i) The subject matter on which the 

witness is expected to present evidence 

as an expert; and 

(ii) Summary of the facts and opinions 

to which the witness is expected to 

testify. 

(4) Time to disclose expert testimony. 

The time for disclosure of expert 

testimony must be addressed by the 

parties when they confer as provided in 

paragraph (h) of this section and, if 

applicable, must be included in the 

proposed discovery schedule submitted 

to the presiding officer. 

(e) Scope of discovery and limits. (1) 

Unless otherwise limited by the 

presiding officer, or as otherwise 

provided in this subpart, the scope of 

discovery is as follows: Parties may 

obtain discovery regarding any 

nonprivileged matter that is relevant to 

any party’s claim or defense—including 

the existence, description, nature, 

custody, condition, and location of any 

documents or other tangible things and 

the identity and location of persons who 

know of any discoverable matter. For 

good cause, the presiding officer may 

order discovery of any matter relevant to 

the subject matter involved in the 

action. Relevant information need not 

be admissible at hearing if the discovery 

appears reasonably calculated to lead to 

the discovery of admissible evidence. 

(2) Limitations on frequency and 

extent— 

(i) Specific limitations on 

electronically stored information. A 

party need not provide discovery of 

electronically stored information from 

sources that the party identifies as not 

reasonably accessible because of undue 

burden or cost. On motion to compel 

discovery or for a protective order, the 

party from whom discovery is sought 

must show that the information is not 

reasonably accessible because of undue 

burden or cost. If that showing is made, 

the presiding officer may nonetheless 

order discovery from such sources if the 

requesting party shows good cause. The 

presiding officer may specify conditions 

for the discovery. 

(ii) When required. On motion or on 

its own, the presiding officer may limit 

the frequency or extent of discovery 

otherwise allowed by these rules if the 

presiding officer determines that: 

(A) The discovery sought is 

unreasonably cumulative or duplicative, 

or can be obtained from some other 

source that is more convenient, less 

burdensome, or less expensive; 

(B) The party seeking discovery has 

had ample opportunity to obtain the 

information by discovery in the action; 

or 

(C) The burden or expense of the 

proposed discovery outweighs its likely 

benefit, considering the needs of the 

proceeding, the amount in controversy, 

the parties’ resources, the importance of 

the issues at stake in the action, and the 

importance of the discovery in resolving 

the issues. 

(f) Scope of discovery and limits— 

experts. (1) A party may depose any 

person who has been identified as an 

expert whose opinions may be 

presented in a proceeding. If a report is 

required of the witness, the deposition 

may be conducted only after the report 

is provided. 

(2) Drafts of any report or disclosure 

required by these rules are not 

discoverable regardless of the form in 

which the draft is recorded. 

(3) Communications between the 

party’s attorney and any expert witness 

required to provide a report are not 

discoverable regardless of the form of 

communications, except to the extent 

that the communications relate to 

compensation for the expert’s study or 

testimony; identify facts or data that the 

party’s attorney provided and that the 

expert considered in forming the 

opinions to be expressed; or identify 

assumptions that the party’s attorney 

provided and that the expert relied on 

in forming the opinions to be expressed. 

(4) A party may not by interrogatories 

or deposition discover facts known or 

opinions held by an expert who has 

been retained or specially employed by 

another party in anticipation of 

litigation or to prepare for a proceeding 

and who is not expected to be presented 

as a witness; provided, however, that 

the presiding officer may permit such 

discovery and may impose such 

conditions as deemed appropriate upon 

a showing of exceptional circumstances 

under which it is impracticable for the 

party to obtain facts or opinions on the 

same subject by other means. 

(g) Completion of discovery. 

Discovery must be completed within 

120 days of the service of a respondent’s 

answer to the complaint or Order of 

Investigation and Hearing. 

(h) Duty of the parties to confer. In all 

proceedings in which the procedures of 

this subpart are used, it is the duty of 

the parties to confer within 14 days after 

receipt of a respondent’s answer to a 

complaint or Order of Investigation and 

Hearing in order to: Establish a schedule 

for the completion of discovery, 

including disclosures and discovery 

related to experts, within the 120-day 

period prescribed in paragraph (g) of 

this section; resolve to the fullest extent 

possible disputes relating to discovery 

matters; and expedite, limit, or 

eliminate discovery by use of 

admissions, stipulations and other 

techniques. The parties must submit the 

schedule to the presiding officer not 

later than 5 days after the conference. 

Nothing in this rule should be construed 

to preclude the parties from conducting 

discovery and conferring at an earlier 

date. 

(i)(1) Conferences by order of the 

presiding officer. The presiding officer 

may at any time order the parties or 

their attorneys to participate in a 

conference at which the presiding 

officer may direct the proper use of the 

procedures of this subpart or make such 

orders as may be necessary to resolve 

disputes with respect to discovery and 

to prevent delay or undue 

inconvenience. 

(2) Resolution of disputes. After 

making every reasonable effort to 

resolve discovery disputes, a party may 

request a conference or rulings from the 

presiding officer on such disputes. If 

necessary to prevent undue delay or 

otherwise facilitate conclusion of the 

proceeding, the presiding officer may 

order a hearing to commence before the 

completion of discovery. 

(j) Protective orders—(1) In general. A 

party or any person from whom 

discovery is sought may move for a 

protective order. The motion must 

include a certification that the movant 

has in good faith conferred or attempted 

to confer with other affected parties in 

an effort to resolve the dispute without 

Commission or presiding officer action. 

The Commission or presiding officer 

may, for good cause, issue an order to 

protect a party or person from 

annoyance, embarrassment, oppression, 

or undue burden or expense, including 

one or more of the following: 

(i) Forbidding the disclosure or 

discovery; 

(ii) Specifying terms, including time 

and place, for the disclosure or 

discovery; 

(iii) Prescribing a discovery method 

other than the one selected by the party 

seeking discovery; 

(iv) Forbidding inquiry into certain 

matters, or limiting the scope of 

disclosure or discovery to certain 

matters; 

(v) Designating the persons who may 

be present while the discovery is 

conducted; 

(vi) Requiring that a deposition be 

sealed and opened only on Commission 

or presiding officer order; 

(vii) Requiring that a trade secret or 

other confidential research, 

development, or commercial 

information not be disclosed or be 

disclosed only in a specified way; or 

(viii) Requiring that the parties 

simultaneously file specified documents 

or information in sealed envelopes, to 


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be opened as the Commission or 

presiding officer directs. 

(2) Ordering discovery. If a motion for 

a protective order is denied in whole or 

in part, the Commission or presiding 

officer may, on just terms, order that any 

party or person provide or permit 

discovery. 

(k) Supplementing responses. A party 

who has made a disclosure under 

paragraph (b) of this section, or who has 

responded to an interrogatory, request 

for production, or request for admission, 

must supplement or correct its 

disclosure or response: 

(1) In a timely manner if the party 

learns that in some material respect the 

disclosure or response is incomplete or 

incorrect, and if the additional or 

corrective information has not otherwise 

been made known to the other parties 

during the discovery process or in 

written communication; or 

(2) As ordered by the presiding 

officer. 

(l) Stipulations. Unless the presiding 

officer orders otherwise, the parties may 

stipulate that other procedures 

governing or limiting discovery be 

modified, but a stipulation extending 

the time for any form of discovery must 

have presiding officer’s approval if it 

would interfere with the time set for 

completing discovery, for adjudicating a 

motion, or for hearing. [Rule 201.] 

§ 502.202 Persons before whom 

depositions may be taken. 

(a) Within the United States—(1) In 

general. Within the United States or a 

territory or insular possession subject to 

United States jurisdiction, a deposition 

must be taken before: 

(i) An officer authorized to administer 

oaths either by federal law or by the law 

in the place of examination; or 

(ii) A person appointed by the 

Commission or the presiding officer to 

administer oaths and take testimony. 

(b) In a foreign country—(1) In 

general. A deposition may be taken in 

a foreign country: 

(i) Under an applicable treaty or 

convention; 

(ii) Under a letter of request, whether 

or not captioned a ‘‘letter rogatory’’; 

(iii) On notice, before a person 

authorized to administer oaths either by 

federal law or by the law in the place 

of examination; or 

(iv) Before a person authorized by the 

Commission or the presiding officer to 

administer any necessary oath and take 

testimony. 

(2) Issuing a letter of request or an 

authorization. A letter of request, an 

authorization, or both may be issued: 

(i) On appropriate terms after an 

application and notice of it; and 

(ii) Without a showing that taking the 

deposition in another manner is 

impracticable or inconvenient. 

(3) Form of a request, notice, or 

authorization. When a letter of request 

or any other device is used according to 

a treaty or convention, it must be 

captioned in the form prescribed by that 

treaty or convention. A letter of request 

may be addressed ‘‘To the Appropriate 

Authority in [name of country].’’ A 

deposition notice or an authorization 

must designate by name or descriptive 

title the person before whom the 

deposition is to be taken. 

(4) Letter of request—admitting 

evidence. Evidence obtained in response 

to a letter of request need not be 

excluded merely because it is not a 

verbatim transcript, because the 

testimony was not taken under oath, or 

because of any similar departure from 

the requirements for depositions taken 

within the United States. 

(c) Disqualification. A deposition 

must not be taken before a person who 

is any party’s relative, employee, or 

attorney; who is related to or employed 

by any party’s attorney; or who is 

financially interested in the action. 

[Rule 202.] 

§ 502.203 Depositions by oral examination. 

(a) When a deposition may be taken— 

(1) Without leave. A party may, by oral 

questions, depose any person, including 

a party, without leave of the presiding 

officer except as provided in 

§ 502.203(a)(2). The deponent’s 

attendance may be compelled by 

subpoena under subpart I of this part. 

(2) With leave. A party must obtain 

leave of the presiding officer, if the 

parties have not stipulated to the 

deposition and: 

(i) The deposition would result in 

more than 20 depositions being taken 

under this rule or § 502.204 by any 

party; or 

(ii) The deponent has already been 

deposed in the case. 

(b) Notice of the deposition; other 

formal requirements—(1) Notice in 

general. A party who wants to depose a 

person by oral questions must give 

reasonable written notice to every other 

party. The notice must state the time 

and place of the deposition and, if 

known, the deponent’s name and 

address. If the name is unknown, the 

notice must provide a general 

description sufficient to identify the 

person or the particular class or group 

to which the person belongs. 

(2) Producing documents. If a 

subpoena duces tecum is to be served 

on the deponent, the materials 

designated for production, as set out in 

the subpoena, must be listed in the 

notice or in an attachment. The notice 

to a party deponent may be 

accompanied by a request under 

§ 502.206 to produce documents and 

tangible things at the deposition. 

(3) Method of recording. 

(i) Method stated in the notice. The 

party who notices the deposition must 

state in the notice the method for 

recording the testimony. Unless the 

presiding officer orders otherwise, 

testimony may be recorded by audio, 

audiovisual, or stenographic means. The 

noticing party bears the recording costs. 

Any party may arrange to transcribe a 

deposition. 

(ii) Additional method. With prior 

notice to the deponent and other parties, 

any party may designate another 

method for recording the testimony in 

addition to that specified in the original 

notice. That party bears the expense of 

the additional record or transcript 

unless the presiding officer orders 

otherwise. 

(4) By remote means. The parties may 

stipulate, or the presiding officer may 

on motion order, that a deposition be 

taken by telephone or other remote 

means. 

(5) Officer’s duties— 

(i) Before the deposition. Unless the 

parties stipulate otherwise, a deposition 

must be conducted before an officer 

appointed or designated under 

§ 502.202. The officer must begin the 

deposition with an on-the-record 

statement that includes: 

(A) The officer’s name and business 

address; 

(B) The date, time, and place of the 

deposition; 

(C) The deponent’s name; 

(D) The officer’s administration of the 

oath or affirmation to the deponent; and 

(E) The identity of all persons present. 

(ii) Conducting the deposition; 

avoiding distortion. If the deposition is 

recorded nonstenographically, the 

officer must repeat the items in 

§ 502.203(b)(5)(i)(A)–(C) at the 

beginning of each unit of the recording 

medium. The deponent’s and attorneys’ 

appearance or demeanor must not be 

distorted through recording techniques. 

(iii) After the deposition. At the end 

of a deposition, the officer must state on 

the record that the deposition is 

complete and must set out any 

stipulations made by the attorneys about 

custody of the transcript or recording 

and of the exhibits, or about any other 

pertinent matters. 

(6) Notice or subpoena directed to an 

organization. In its notice or subpoena, 

a party may name as the deponent a 

public or private corporation, a 

partnership, an association, a 

governmental agency, or other entity 


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and must describe with reasonable 

particularity the matters for 

examination. The named organization 

must then designate one or more 

officers, directors, or managing 

representatives, or designate other 

persons who consent to testify on its 

behalf; and it may set out the matters on 

which each person designated will 

testify. A subpoena must advise a 

nonparty organization of its duty to 

make this designation. The persons 

designated must testify about 

information known or reasonably 

available to the organization. This 

paragraph (6) does not preclude a 

deposition by any other procedure 

allowed by these rules. 

(c) Examination and crossexamination; record of the examination; 

objections; written questions— 

(1) Examination and crossexamination. The examination and 

cross-examination of a deponent 

proceed as they would at hearing under 

the provisions of § 502.154. After 

putting the deponent under oath or 

affirmation, the officer must record the 

testimony by the method designated 

under § 502.203(b)(3). The testimony 

must be recorded by the officer 

personally or by a person acting in the 

presence and under the direction of the 

officer. 

(2) Objections. An objection at the 

time of the examination, whether to 

evidence, to a party’s conduct, to the 

officer’s qualifications, to the manner of 

taking the deposition, or to any other 

aspect of the deposition, must be noted 

on the record, but the examination still 

proceeds; the testimony is taken subject 

to any objection. An objection must be 

stated concisely in a nonargumentative 

and nonsuggestive manner. A person 

may instruct a deponent not to answer 

only when necessary to preserve a 

privilege, to enforce a limitation ordered 

by the presiding officer, or to present a 

motion under § 502.203(d)(2). 

(3) Participating through written 

questions. Instead of participating in the 

oral examination, a party may serve 

written questions in a sealed envelope 

on the party noticing the deposition, 

who must deliver them to the officer. 

The officer must ask the deponent those 

questions and record the answers 

verbatim. 

(d) Duration; sanction; motion to 

terminate or limit—(1) Duration. Unless 

otherwise stipulated or ordered by the 

presiding officer, a deposition is limited 

to 1 day of 7 hours. The presiding 

officer must allow additional time 

consistent with § 502.201(e)(2) if needed 

to fairly examine the deponent or if the 

deponent, another person, or any other 

circumstance impedes or delays the 

examination. 

(2) Motion to terminate or limit— 

(i) Grounds. At any time during a 

deposition, the deponent or a party may 

move to terminate or limit it on the 

ground that it is being conducted in bad 

faith or in a manner that unreasonably 

annoys, embarrasses, or oppresses the 

deponent or party. The motion may be 

filed with the presiding officer. If the 

objecting deponent or party so demands, 

the deposition must be suspended for 

the time necessary to obtain an order. 

(ii) Order. The presiding officer may 

order that the deposition be terminated 

or may limit its scope and manner as 

provided in § 502.201(j). If terminated, 

the deposition may be resumed only by 

order of the Commission or presiding 

officer. 

(e) Review by the witness; changes— 

(1) Review; statement of changes. On 

request by the deponent or a party 

before the deposition is completed, the 

deponent must be allowed 15 days after 

being notified by the officer that the 

transcript or recording is available in 

which: 

(i) To review the transcript or 

recording; and 

(ii) If there are changes in form or 

substance, to sign a statement listing the 

changes and the reasons for making 

them. 

(2) Changes indicated in the officer’s 

certificate. The officer must note in the 

certificate prescribed by § 502.203(f)(1) 

whether a review was requested and, if 

so, must attach any changes the 

deponent makes during the 15-day 

period. 

(f) Certification and delivery; exhibits; 

copies of the transcript or recording; 

filing— 

(1) Certification and delivery. The 

officer must certify in writing that the 

witness was duly sworn and that the 

deposition, transcript or recording 

accurately records the witness’s 

testimony. The certificate must 

accompany the record of the deposition. 

Unless the presiding officer orders 

otherwise, the officer must seal the 

deposition in an envelope or package 

bearing the title of the action and 

marked ‘‘Deposition of [witness’s 

name]’’ and must promptly send it to 

the attorney who arranged for the 

transcript or recording. The attorney 

must store it under conditions that will 

protect it against loss, destruction, 

tampering, or deterioration. 

(2) Documents and tangible things— 

(i) Originals and copies. Documents 

and tangible things produced for 

inspection during a deposition must, on 

a party’s request, be marked for 

identification and attached to the 

deposition. Any party may inspect and 

copy them. But if the person who 

produced them wants to keep the 

originals, the person may: 

(A) Offer copies to be marked, 

attached to the deposition, and then 

used as originals, after giving all parties 

a fair opportunity to verify the copies by 

comparing them with the originals; or 

(B) Give all parties a fair opportunity 

to inspect and copy the originals after 

they are marked, in which event the 

originals may be used as if attached to 

the deposition. 

(ii) Order regarding the originals. Any 

party may move for an order that the 

originals be attached to the deposition 

pending final disposition of the case. 

(3) Copies of the transcript or 

recording. Unless otherwise stipulated 

or ordered by the presiding officer, the 

officer must retain the stenographic 

notes of a deposition taken 

stenographically or a copy of the 

recording of a deposition taken by 

another method. When paid reasonable 

charges, the officer must furnish a copy 

of the transcript or recording to any 

party or the deponent. [Rule 203.] 

§ 502.204 Depositions by written 

questions. 

(a) When a deposition may be taken— 

(1) Without leave. A party may, by 

written questions, depose any person, 

including a party, without leave of the 

presiding officer except as provided in 

paragraph (a)(2) of this section. The 

deponent’s attendance may be 

compelled by subpoena under subpart I 

of this part. 

(2) With leave. A party must obtain 

leave of the presiding officer, if the 

parties have not stipulated to the 

deposition and: 

(i) The deposition would result in 

more than 20 depositions being taken 

under this rule or § 502.203 by any 

party; 

(ii) The deponent has already been 

deposed in the case. 

(3) Service; required notice. A party 

who wants to depose a person by 

written questions must serve them on 

every other party, with a notice stating, 

if known, the deponent’s name and 

address. If the name is unknown, the 

notice must provide a general 

description sufficient to identify the 

person or the particular class or group 

to which the person belongs. The notice 

must also state the name or descriptive 

title and the address of the officer before 

whom the deposition will be taken. 

(4) Questions directed to an 

organization. A public or private 

corporation, a partnership, an 

association, or a governmental agency 


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12540 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

may be deposed by written questions in 

accordance with § 502.203(b)(6). 

(5) Questions from other parties. Any 

questions to the deponent from other 

parties must be served on all parties as 

follows: Cross-questions, within 14 days 

after being served with the notice and 

direct questions; redirect questions, 

within 7 days after being served with 

cross-questions; and recross-questions, 

within 7 days after being served with 

redirect questions. The presiding officer 

may, for good cause, extend or shorten 

these times. 

(b) Delivery to the officer; officer’s 

duties. The party who noticed the 

deposition must deliver to the officer 

before whom the deposition will be 

taken a copy of all the questions served 

and of the notice. The officer must 

promptly proceed to: 

(1) Take the deponent’s testimony in 

response to the questions; 

(2) Prepare and certify the deposition; 

and 

(3) Send it to the party, attaching a 

copy of the questions and of the notice. 

(c) Notice of completion or filing—(1) 

Completion. The party who noticed the 

deposition must notify all other parties 

when it is completed. 

(2) Filing. A party who files the 

deposition must promptly notify all 

other parties of the filing. [Rule 204.] 

§ 502.205 Interrogatories to parties. 

(a) In general—(1) Number. Unless 

otherwise stipulated or ordered by the 

presiding officer, a party may serve on 

any other party no more than 50 written 

interrogatories, including all discrete 

subparts. Leave to serve additional 

interrogatories may be granted to the 

extent consistent with § 502.201(e)(2). 

(2) Scope. An interrogatory may relate 

to any matter that may be inquired into 

under § 502.201(e)–(f). An interrogatory 

is not objectionable merely because it 

asks for an opinion or contention that 

relates to fact or the application of law 

to fact, but the presiding officer may 

order that the interrogatory need not be 

answered until designated discovery is 

complete, or until a prehearing 

conference or some other time. 

(b) Answers and objections—(1) 

Responding party. The interrogatories 

must be answered: 

(i) By the party to whom they are 

directed; or 

(ii) If that party is a public or private 

corporation, a partnership, an 

association, or a governmental agency, 

by any officer or representative, who 

must furnish the information available 

to the party. 

(2) Time to respond. The responding 

party must serve its answers and any 

objections within 30 days after being 

served with the interrogatories. A 

shorter or longer time may be stipulated 

to as provided in § 502.201(l) of this 

subpart or be ordered by the presiding 

officer. 

(3) Answering each interrogatory. 

Each interrogatory must, to the extent it 

is not objected to, be answered 

separately and fully in writing under 

oath. 

(4) Objections. The grounds for 

objecting to an interrogatory must be 

stated with specificity. Any ground not 

stated in a timely objection is waived 

unless the presiding officer, for good 

cause, excuses the failure. 

(5) Signature. The person who makes 

the answers must sign them, and the 

attorney who objects must sign any 

objections. 

(c) Use. An answer to an interrogatory 

may be used to the extent allowed by 

the rules in this part. 

(d) Option to produce business 

records. If the answer to an interrogatory 

may be determined by examining, 

auditing, compiling, abstracting, or 

summarizing a party’s business records 

(including electronically stored 

information), and if the burden of 

deriving or ascertaining the answer will 

be substantially the same for either 

party, the responding party may answer 

by: 

(1) Specifying the records that must 

be reviewed, in sufficient detail to 

enable the interrogating party to locate 

and identify them as readily as the 

responding party could; and 

(2) Giving the interrogating party a 

reasonable opportunity to examine and 

audit the records and to make copies, 

compilations, abstracts, or summaries. 

[Rule 205.] 

§ 502.206 Producing documents, 

electronically stored information, and 

tangible things, or entering onto land, for 

inspection and other purposes. 

(a) In general. A party may serve on 

any other party a request within the 

scope of § 502.201(e)–(f): 

(1) To produce and permit the 

requesting party or its representative to 

inspect, copy, test, or sample the 

following items in the responding 

party’s possession, custody, or control: 

(i) Any designated documents or 

electronically stored information, 

including writings, drawings, graphs, 

charts, photographs, sound recordings, 

images, and other data or data 

compilations, stored in any medium 

from which information can be obtained 

either directly or, if necessary, after 

translation by the responding party into 

a reasonably usable form; or 

(ii) Any designated tangible things; or 

(2) To permit entry onto designated 

land or other property possessed or 

controlled by the responding party, so 

that the requesting party may inspect, 

measure, survey, photograph, test, or 

sample the property or any designated 

object or operation on it. 

(b) Procedure—(1) Contents of the 

request. The request: 

(i) Must describe with reasonable 

particularity each item or category of 

items to be inspected; 

(ii) Must specify a reasonable time, 

place, and manner for the inspection 

and for performing the related acts; and 

(iii) May specify the form or forms in 

which electronically stored information 

is to be produced. 

(2) Responses and objections. 

(i) Time to respond. The party to 

whom the request is directed must 

respond in writing within 30 days after 

being served. A shorter or longer time 

may be stipulated to as provided in 

§ 502.201(l) of this subpart or be ordered 

by the presiding officer. 

(ii) Responding to each item. For each 

item or category, the response must 

either state that inspection and related 

activities will be permitted as requested 

or state an objection to the request, 

including the reasons. 

(iii) Objections. An objection to part 

of a request must specify the part and 

permit inspection of the rest. 

(iv) Responding to a request for 

production of electronically stored 

information. The response may state an 

objection to a requested form for 

producing electronically stored 

information. If the responding party 

objects to a requested form, or if no form 

was specified in the request, the party 

must state the form or forms it intends 

to use. 

(v) Producing the documents or 

electronically stored information. 

Unless otherwise stipulated or ordered 

by the presiding officer, these 

procedures apply to producing 

documents or electronically stored 

information: 

(A) A party must produce documents 

as they are kept in the usual course of 

business or must organize and label 

them to correspond to the categories in 

the request; 

(B) If a request does not specify a form 

for producing electronically stored 

information, a party must produce it in 

a form or forms in which it is ordinarily 

maintained or in a reasonably usable 

form or forms; and 

(C) A party need not produce the 

same electronically stored information 

in more than one form. 

(c) Nonparties. By subpoena under 

subpart I of this part, a nonparty may be 

compelled to produce documents and 

tangible things or to permit an 

inspection. [Rule 206.] 


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Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 12541 

§ 502.207 Requests for admission. 

(a) Scope and procedure—(1) Scope. 

A party may serve on any other party a 

written request to admit, for the 

purposes of the pending action only, the 

truth of any nonprivileged relevant 

matters relating to facts, the application 

of law to fact, or opinions about either, 

and the genuineness of any described 

documents. 

(2) Form; copies of documents. Each 

matter must be separately stated. A 

request to admit the genuineness of a 

document must be accompanied by a 

copy of the document unless it is, or has 

been, otherwise furnished or made 

available for inspection and copying. 

(3) Time to respond; effect of failure 

to respond. A matter is admitted unless, 

within 30 days after being served, the 

party to whom the request is directed 

serves on the requesting party a written 

answer or objection addressed to the 

matter and signed by the party or its 

attorney. A shorter or longer time for 

responding may be stipulated to as 

provided in § 502.201(l) of this subpart 

or be ordered by the presiding officer. 

(4) Answer. If a matter is not admitted, 

the answer must specifically deny it or 

state in detail why the answering party 

cannot truthfully admit or deny it. A 

denial must fairly respond to the 

substance of the matter; and when good 

faith requires that a party qualify an 

answer or deny only a part of a matter, 

the answer must specify the part 

admitted and qualify or deny the rest. 

The answering party may assert lack of 

knowledge or information as a reason 

for failing to admit or deny only if the 

party states that it has made reasonable 

inquiry and that the information it 

knows or can readily obtain is 

insufficient to enable it to admit or 

deny. 

(5) Objections. The grounds for 

objecting to a request must be stated. A 

party may not object solely on the 

ground that the request presents a 

genuine issue for adjudication. 

(6) Motion regarding the sufficiency of 

an answer or objection. The requesting 

party may move for a determination of 

the sufficiency of an answer or 

objection. Unless the presiding officer 

finds an objection justified, the 

presiding officer must order that an 

answer be served. On finding that an 

answer does not comply with this rule, 

the presiding officer may order either 

that the matter is admitted or that an 

amended answer be served. The 

presiding officer may defer a decision 

until a prehearing conference or a 

specified time prior to hearing. 

(b) Effect of admission; withdrawal or 

amendment of admission. A matter 

admitted under this rule is conclusively 

established unless the presiding officer, 

on motion, permits the admission to be 

withdrawn or amended. The presiding 

officer may permit withdrawal or 

amendment if it would promote the 

presentation of the merits of the action 

and if the presiding officer is not 

persuaded that it would prejudice the 

requesting party in maintaining or 

defending the action on the merits. An 

admission under this rule is not an 

admission for any other purpose and 

cannot be used against the party in any 

other proceeding. [Rule 207.] 

§ 502.208 Use of discovery procedures 

directed to Commission staff personnel. 

(a) Discovery procedures described in 

§§ 502.202, 502.203, 502.204, 502.205, 

502.206, and 502.207, directed to 

Commission staff personnel must be 

permitted and must be governed by the 

procedures set forth in those sections 

except as modified by paragraphs (b) 

and (c) of this section. All notices to 

take depositions, written interrogatories, 

requests for production of documents 

and other things, requests for 

admissions, and any motions in 

connection with the foregoing, must be 

served on the Secretary of the 

Commission. 

(b) The General Counsel must 

designate an attorney to represent any 

Commission staff personnel to whom 

any discovery requests or motions are 

directed. The attorney so designated 

must not thereafter participate in the 

Commission’s decision-making process 

concerning any issue in the proceeding. 

(c) Rulings of the presiding officer 

issued under paragraph (a) of this 

section must become final rulings of the 

Commission unless an appeal is filed 

within 10 days after date of issuance of 

such rulings or unless the Commission 

on its own motion reverses, modifies, or 

stays such rulings within 20 days of 

their issuance. Replies to appeals may 

be filed within 10 days. No motion for 

leave to appeal is necessary in such 

instances and no ruling of the presiding 

officer must be effective until 20 days 

from date of issuance unless the 

Commission otherwise directs. [Rule 

208.] 

§ 502.209 Use of depositions at hearings. 

(a) Using depositions—(1) In general. 

At a hearing, all or part of a deposition 

may be used against a party on these 

conditions: 

(i) The party was present or 

represented at the taking of the 

deposition or had reasonable notice of 

it; 

(ii) It is used to the extent it would be 

admissible if the deponent were present 

and testifying; and 

(iii) The use is allowed by 

§ 502.209(a)(2) through (7). 

(2) Impeachment and other uses. Any 

party may use a deposition to contradict 

or impeach the testimony given by the 

deponent as a witness, or for any other 

purpose allowed by § 502.156 of subpart 

J of this part. 

(3) Deposition of party, representative, 

or designee. An adverse party may use 

for any purpose the deposition of a 

party or anyone who, when deposed, 

was the party’s officer, director, 

managing representative, or designee 

under § 502.203(b)(6) or § 502.204(a)(4). 

(4) Unavailable witness. A party may 

use for any purpose the deposition of a 

witness, whether or not a party, if the 

Commission or presiding officer finds: 

(i) That the witness is dead; 

(ii) That the witness cannot attend or 

testify because of age, illness, infirmity, 

or imprisonment; 

(iii) That the party offering the 

deposition could not procure the 

witness’s attendance by subpoena; or 

(iv) On motion and notice, that 

exceptional circumstances make it 

desirable, in the interest of justice and 

with due regard to the importance of 

live testimony at a hearing, to permit the 

deposition to be used. 

(5) Using part of a deposition. If a 

party offers in evidence only part of a 

deposition, an adverse party may 

require the offeror to introduce other 

parts that in fairness should be 

considered with the part introduced, 

and any party may itself introduce any 

other parts. 

(6) Substituting a party. Substituting a 

party does not affect the right to use a 

deposition previously taken. 

(7) Deposition taken in an earlier 

action. A deposition lawfully taken and, 

if required, filed in any federal or state 

court action may be used in a later 

action involving the same subject matter 

between the same parties, or their 

representatives or successors in interest, 

to the same extent as if taken in the later 

action. A deposition previously taken 

may also be used as allowed by 

§ 502.156 of subpart J of this part. 

(b) Objections to admissibility. Subject 

to Rules § 502.202(b) and 

§ 502.209(d)(3), an objection may be 

made at a hearing to the admission of 

any deposition testimony that would be 

inadmissible if the witness were present 

and testifying. 

(c) Form of presentation. Unless the 

presiding officer orders otherwise, a 

party must provide a transcript of any 

deposition testimony the party offers, 

but may provide the presiding officer 

with the testimony in nontranscript 

form as well. 


srobinson on DSK4SPTVN1PROD with PROPOSALS
12542 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

(d) Waiver of objections—(1) To the 

notice. An objection to an error or 

irregularity in a deposition notice is 

waived unless promptly served in 

writing on the party giving the notice. 

(2) To the officer’s qualification. An 

objection based on qualification of the 

officer before whom a deposition is to 

be taken is waived if not made: 

(i) Before the deposition begins; or 

(ii) Promptly after the basis for 

disqualification becomes known or, 

with reasonable diligence, could have 

been known. 

(3) To the taking of the deposition— 

(i) Objection to competence, 

relevance, or materiality. An objection 

to a deponent’s competence, or to the 

competence, relevance, or materiality of 

testimony, is not waived by a failure to 

make the objection before or during the 

deposition, unless the ground for it 

might have been corrected at that time. 

(ii) Objection to an error or 

irregularity. An objection to an error or 

irregularity at an oral examination is 

waived if: 

(A) It relates to the manner of taking 

the deposition, the form of a question or 

answer, the oath or affirmation, a party’s 

conduct, or other matters that might 

have been corrected at that time; and 

(B) It is not timely made during the 

deposition. 

(iii) Objection to a written question. 

An objection to the form of a written 

question under § 502.204 of this subpart 

is waived if not served in writing on the 

party submitting the question within the 

time for serving responsive questions or, 

if the question is a recross-question, 

within 7 days after being served with it. 

(4) To completing and returning the 

deposition. An objection to how the 

officer transcribed the testimony, or 

prepared, signed, certified, sealed, 

endorsed, sent, or otherwise dealt with 

the deposition, is waived unless a 

motion to suppress is made promptly 

after the error or irregularity becomes 

known or, with reasonable diligence, 

could have been known. [Rule 209.] 

§ 502.210 Motions to compel initial 

disclosures or compliance with discovery 

requests; failure to comply with order to 

make disclosure or answer or produce 

documents; sanctions; enforcement. 

(a) Motion for order to compel initial 

disclosures or compliance with 

discovery requests. (1) A party may file 

a motion pursuant to § 502.69 for an 

order compelling compliance with the 

requirement for initial disclosures 

provided in § 502.201 or with its 

discovery requests as provided in this 

subpart, if a deponent fails to answer a 

question asked at a deposition or by 

written questions; a corporation or other 

entity fails to make a designation of an 

individual who will testify on its behalf; 

a party fails to answer an interrogatory; 

or a party fails to respond that 

inspection will be permitted, or fails to 

permit inspection, as requested under 

§ 502.206 of this subpart. For purposes 

of this section, a failure to make a 

disclosure, answer, or respond includes 

an evasive or incomplete disclosure, 

answer, or response. 

(2) A motion to compel must include: 

(i) A certification that the moving 

party has conferred in good faith or 

attempted to confer with the party 

failing to make initial disclosure or 

respond to discovery requests as 

provided in this subpart in an effort to 

obtain compliance without the necessity 

of a motion; 

(ii) A copy of the discovery requests 

that have not been answered or for 

which evasive or incomplete responses 

have been given. If the motion is limited 

to specific discovery requests, only 

those requests are to be included; 

(iii) If a disclosure has been made or 

an answer or response has been given, 

a copy of the disclosure, answer, or 

response in its entirety; 

(iv) A copy of the certificate of service 

that accompanied the discovery request; 

and 

(v) A request for relief and supporting 

argument, if any. 

(3) A party may file a response to the 

motion within 7 days of the service date 

of the motion. Unless there is a dispute 

with respect to the accuracy of the 

versions of the discovery requests, 

responses thereto, or the disclosures 

submitted by the moving party, the 

response must not include duplicative 

copies of them. 

(4) A reply to a response is not 

allowed unless requested by the 

presiding officer, or upon a showing of 

extraordinary circumstances. 

(b) Failure to comply with order 

compelling disclosures or discovery. If a 

party or a party’s officer or authorized 

representative fails or refuses to obey an 

order requiring it to make disclosures or 

to respond to discovery requests, the 

presiding officer upon his or her own 

initiative or upon motion of a party may 

make such orders in regard to the failure 

or refusal as are just. A motion must 

include a certification that the moving 

party has conferred in good faith or 

attempted to confer with the 

disobedient party in an effort to obtain 

compliance without the necessity of a 

motion. An order of the presiding officer 

may: 

(1) Direct that the matters included in 

the order or any other designated facts 

must be taken to be established for the 

purposes of the action as the party 

making the motion claims; 

(2) Prohibit the disobedient party 

from supporting or opposing designated 

claims or defenses, or from introducing 

designated matters in evidence; or 

(3) Strike pleadings in whole or in 

part; staying further proceedings until 

the order is obeyed; or dismissing the 

action or proceeding or any party 

thereto, or rendering a decision by 

default against the disobedient party. 

(c) Enforcement of orders and 

subpoenas. In the event of refusal to 

obey an order or failure to comply with 

a subpoena, the Attorney General at the 

request of the Commission, or any party 

injured thereby may seek enforcement 

by a United States district court having 

jurisdiction over the parties. Any action 

with respect to enforcement of 

subpoenas or orders relating to 

depositions, written interrogatories, or 

other discovery matters must be taken 

within 20 days of the date of refusal to 

obey or failure to comply. A private 

party must advise the Commission 5 

days (excluding Saturdays, Sundays and 

legal holidays) before applying to the 

court of its intent to seek enforcement 

of such subpoenas and discovery orders. 

(d) Persons and documents located in 

a foreign country. Orders of the 

presiding officer directed to persons or 

documents located in a foreign country 

must become final orders of the 

Commission unless an appeal to the 

Commission is filed within 10 days after 

date of issuance of such orders or unless 

the Commission on its own motion 

reverses, modifies, or stays such rulings 

within 20 days of their issuance. Replies 

to appeals may be filed within 10 days. 

No motion for leave to appeal is 

necessary in such instances and no 

orders of the presiding officer must be 

effective until 20 days from date of 

issuance unless the Commission 

otherwise directs. [Rule 210.] 

By the Commission. 

Karen V. Gregory, 

Secretary. 

[FR Doc. 2012–4690 Filed 2–29–12; 8:45 am] 

BILLING CODE 6730–01–P 


srobinson on DSK4SPTVN1PROD with PROPOSALS