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(continued)
(d) Replies to the petition shall contain the complete factual and legal presentation of the replying party as to the desired resolution, or a detailed explanation why such can only be developed through discovery or evidentiary hearing. Replies shall conform to the requirements of §502.74 and shall 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 replies. Requests shall 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 shall be published in the Federal Register. The notice will indicate the time for filing of replies to the petition. If the controversy or uncertainty is one of general public interest, and not limited to specifically named persons, opportunity for reply 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 §502.72.
(3) Petitions for leave to intervene shall be submitted on or before the reply date and shall be accompanied by intervenor's complete reply 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 order on the merits of the petition. [Rule 68.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 59 FR 59170, Nov. 16, 1994; 61 FR 51233, Oct. 1, 1996; 63 FR 50535, Sept. 22, 1998; 65 FR 81759, Dec. 27, 2000; 67 FR 39859, June 11, 2002; 70 FR 10329, Mar. 3, 2005]
§ 502.69 Petitions—General and fee.
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(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, shall be by written petition, which shall state clearly and concisely the petitioner's grounds of interest in the subject matter, the facts relied upon and the relief sought, shall cite by appropriate reference the statutory provisions or other authority relied upon for relief, shall be served upon all parties named therein, and shall conform otherwise to the requirements of subpart H of this part. Replies thereto shall conform to the requirements of §502.74.
(b) Petitions shall be accompanied by remittance of a $241 filing fee. [Rule 69.]
[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4143, Feb. 10, 1987; 59 FR 59170, Nov. 16, 1994; 63 FR 50535, Sept. 22, 1998; 67 FR 39859, June 11, 2002; 70 FR 10329, Mar. 3, 2005]
§ 502.70 Amendments or supplements to pleadings.
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(a) Amendments or supplements to any pleadings will be permitted or rejected, either in the discretion of the Commission if the case has not been assigned to a presiding officer for hearing, or otherwise, in the discretion of the officer designated to conduct the hearing, except that after a case is assigned for hearing, no amendment shall 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 §502.74, 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 shall also be verified. [Rule 70.]
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27210, May 7, 1993]
§ 502.71 Motions for more definite statement.
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If a pleading (including a complaint or counter-complaint filed pursuant to §502.62 or §502.64) to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall be filed within 15 days of the pleading and shall 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 may fix, the presiding officer may strike the pleading to which the motion was directed or make such order as is deemed just. If the motion is disallowed, the time for responding to the pleading shall be extended to a date 10 days after service of the notice of disallowance. [Rule 71.]
[58 FR 27210, May 7, 1993, as amended at 64 FR 7808, Feb. 17, 1999]
§ 502.72 Petition for leave to intervene.
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(a) A petition for leave to intervene may be filed in any proceeding and shall be served on existing parties by the petitioner pursuant to subpart H of this part. An additional fifteen (15) copies of the petition shall be filed with the Secretary for the use of the Commission. Upon request, the Commission will furnish a service list to any member of the public pursuant to part 503 of this chapter. The petition shall set forth the grounds for the proposed intervention and the interest and position of the petitioner in the proceeding and shall comply with the other applicable provisions of subpart H of this part, and if affirmative relief is sought, the basis for such relief. Such petition shall also indicate the nature and extent of the participation sought, e.g., the use of discovery, presentation of evidence and examination of witnesses.
(b)(1) Petitions for leave to intervene as a matter of right will only be granted upon a clear and convincing showing that:
(i) The petitioner has a substantial interest relating to the matter which is the subject of the proceeding warranting intervention; and
(ii) The proceeding may, as a practical matter, materially affect the petitioner's interest; and
(iii) The interest is not adequately represented by existing parties to the proceeding.
(2) Petitions for intervention as a matter of Commission discretion may be granted only upon a showing that:
(i) A common issue of law or fact exists between the petitioner's interests and the subject matter of the proceeding; and
(ii) Petitioner's intervention will not unduly delay or broaden the scope of the proceeding, prejudice the adjudication of the rights of or be duplicative of positions of any existing party; and
(iii) The petitioner's participation may reasonably be expected to assist in the development of a sound record.
(3) The timeliness of the petition will also be considered in determining whether a petition will be granted under paragraphs (b)(1) or (b)(2) of this section. If filed after hearings have been closed, a petition will not ordinarily be granted.
(c) In the interests of: (1) Restricting irrelevant, duplicative, or repetitive discovery, evidence or arguments; (2) having common interests represented by a spokesperson; and (3) retaining authority to determine priorities and control the course of the proceeding, the presiding officer, in his or her discretion, may impose reasonable limitations on an intervenor's participation, e.g., the filing of briefs, presentation of evidence on selected factual issues, or oral argument on some or all of the issues.
(d) Absent good cause shown, any intervenor desiring to utilize the procedures provided by subpart L must commence doing so no later than fifteen (15) days after its petition for leave to intervene has been granted. If the petition is filed later than thirty (30) days after the date of publication in the Federal Register of the Commission's Order instituting the proceeding or notice of complaint filed, petitioner will be deemed to have waived its right to utilize such procedures, unless good cause is shown for the failure to file the petition within the 30-day period. The use of subpart L procedures by an intervenor whose petition was filed beyond such 30-day period will in no event be allowed, if, in the opinion of the presiding officer, such use will result in delaying the proceeding unduly.
(e) If intervention is granted before or at a prehearing conference convened for the purpose of considering matters relating to discovery, the intervenor's discovery matters may also be considered at that time, and may be limited under the provisions of paragraph (c) of this section.
(f) A form of petition for leave to intervene is set forth in Exhibit No. 3 to this subpart. [Rule 72.]
[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4143, Feb. 10, 1987]
§ 502.73 Motions.
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(a) In any docketed proceeding, an application or request for an order or ruling not otherwise specifically provided for in this part shall 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 shall 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 shall be referred to the Commission. If the proceeding is not before the presiding officer, motions shall be designated as “petitions” and shall be addressed to and passed upon by the Commission.
(b) Motions shall be in writing, except that a motion made at a hearing shall be sufficient if stated orally upon the record, unless the presiding officer directs that it be reduced to writing.
(c) All written motions shall 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 requiring the relief requested; and shall conform with the requirements of subpart H of this part.
(d) Oral argument upon a written motion may be permitted at the discretion of the presiding officer or the Commission, as the case may be.
(e) A repetitious motion will not be entertained. [Rule 73.]
§ 502.74 Replies to pleadings, motions, applications, etc.
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(a)(1) Except as provided under subpart V of this part, a reply to a reply is not permitted.
(2) Except as otherwise provided respecting answers (§502.64), shortened procedure (subpart K of this part), briefs (§502.221), exceptions (§502.227), replies to petitions for attorney fees under the Equal Access to Justice Act (§502.503(b)(1)), and the documents specified in paragraph (b) of this section, any party may file and serve a reply to any written motion, pleading, petition, application, etc., permitted under this part within fifteen (15) days after the date of service thereof, unless a shorter period is fixed under §502.103.
(b) When time permits, replies also may be filed to applications for enlargement of time and postponement of hearing (subpart G of this part), and motions to take depositions (§502.201).
(c) Replies shall be in writing, shall be verified if verification of original pleading is required, shall be so drawn as to fully and completely advise the parties and the Commission as to the nature of the defense, shall admit or deny specifically and in detail each material allegation of the pleading answered, shall state clearly and concisely the facts and matters of law relied upon, and shall conform to the requirements of subpart H of this part. [Rule 74.]
[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 28264, July 29, 1987; 61 FR 66617, Dec. 18, 1996]
§ 502.75 Proceedings involving assessment agreements.
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(a) In complaint proceedings involving assessment agreements filed under section 5(e) of the Shipping Act of 1984, the Notice of Filing of Complaint and Assignment will specify a date before which the initial decision will be issued, which date will not be more than eight months from the date the complaint was filed.
(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 shall 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 shall be filed with the Secretary of the Commission for service pursuant to §502.113. Answers or objections to discovery requests shall 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, shall be filed and served no later than fifteen (15) days after date of service of the initial decision. Replies thereto shall be filed and served no later than fifteen (15) days after date of service of exceptions. In the absence of exceptions, the decision of the presiding officer shall be final within thirty (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 75.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7808, Feb. 17, 1999]
§ 502.76 Brief of an amicus curiae.
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(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 shall 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 shall be limited to questions of law or policy.
(b) A motion for leave to file an amicus brief shall identify the interest of the applicant and shall state the reasons why such a brief is desirable.
(c) Except as otherwise permitted by the Commission or the presiding officer, an amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support. The Commission or the presiding officer shall grant leave for a later filing only for cause shown, in which event the period within which an opposing party may answer shall 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 76.]
[52 FR 4143, Feb. 10, 1987]
Exhibit No. 1 to Subpart E [§502.62] of Part 502—Complaint Form and Information Checklist
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Before the Federal Maritime Commission
Complaint
______ v. ______ [Insert without abbreviation exact and complete name of party or parties respondent]
I. The complainant is [State in this paragraph whether complainant is an association, a corporation, firm, or partnership and the names of the individuals composing the same. State also the nature and principal place of business].
II. The respondent is [State in this paragraph whether respondent is an association, a corporation, firm, or partnership and the names of the individuals composing the same. State also the nature and principal place of business].
III. Allegation of jurisdiction. [State in this paragraph a synopsis of the statutory bases for claim(s)].
IV. That [State in this or subsequent paragraphs to be lettered “A”, “B”, etc., the matter or matters complained of. If rates are involved, name each rate, fare, charge, classification, regulation, or practice, the lawfulness of which is challenged].
V. That by reason of the facts stated in the foregoing paragraphs, complainant has been (and is being) subject to injury as a direct result of the violations by respondent of sections ___ [State in this paragraph the causal connection between the alleged illegal acts of respondent and the claimed injury to complainant, with all necessary statutory sections relied upon].
VI. That complainant has been injured in the following manner: To its damage in the sum of $___.
VII. Wherefore complainant prays that respondent be required to answer the charges herein; that after due hearing, an order be made commanding said respondent (and each of them): to cease and desist from the aforesaid violations of said act(s); to establish and put in force such practices as the Commission determines to be lawful and reasonable; to pay to said complainant by way of reparations for the unlawful conduct hereinabove described the sum of $___, with interest and attorney's fees or such other sum as the Commission may determine to be proper as an award of reparation; and that such other and further order or orders be made as the Commission determines to be proper in the premises.
Dated at ________, this ______ day of _________, 19__.
____________________
[Complainant's signature]
____________________
[Office and post office address]
____________________
[Signature or agent or attorney of complainant]
____________________
[Post office address]
Verification [See §502.112]
State of ________, County of __________, ss: _________, ____________ being first duly sworn on oath deposes and says that he (she) is
____________________
[The complainant, or, if a firm, association, or corporation, state the capacity of the affiant]
and is the person who signed the foregoing complaint; that he (she) has read the complaint and that the facts stated therein, upon information received from others, affiant believes to be true.
Subscribed and sworn to before me, a notary public in and for the State of ___, County of ___ this ___ day ___, A.D. 19—.
[Seal]____________________
(Notary Public)
My Commission expires ____.
Information To Assist in Filing Formal Complaint
General
Formal Docket Complaint procedures usually involve an evidentiary hearing on disputed facts. Where no evidentiary hearing on disputed facts is necessary and where all parties agree to the use of different procedures, a complaint may be processed under subpart K [Shortened Procedure] or subpart S [Informal Docket for a claim of $10,000 or less]. An application for refund or waiver of collection of freight charges due to tariff error should be filed pursuant to §502.92 and Exhibit No. 1 to subpart F. Consider also the feasibilty of filing a Petition for Declaratory Order under §502.68.
Under the Shipping Act of 1984 [foreign commerce], the complaint must be filed within three (3) years from the time the cause of action accrues and may be brought against any person alleged to have violated the 1984 Act to the injury of complainant.
Because of the limitation periods, a complaint is deemed to be filed only when it is physically received at the Commission. [See §502.114]
The format of exhibit No. 1 to subpart E must be followed and a verification must be included. (See §§502.21–502.32, 502.62 and 502.112.) The complaint must also fully describe the alleged violations of the specific section(s) of the shipping statute(s) involved and how complainant is or was directly injured as a result. An original and fifteen copies, plus a further number of copies sufficient for service upon each named respondent must be filed and the Commission will serve the other parties. [See §§502.113 and 502.118]
In addition to subpart E, some other important rules are: §502.2 (mailing address; hours); §502.7 (documents in foreign language); §502.23 (Notice of Appearance); §502.41 (parties; how designated); §502.44 (necessary and proper parties to certain complaint proceedings); and subpart H (form, execution and service of documents).
Checklist of Specific Information
The following checklist sets forth items of information which are pertinent in cases submitted to the Commission pursuant to the regulatory provisions of the shipping statutes. The list is not intended to be inclusive, nor does it indicate all of the essential allegations which may be material in specific cases.
1. Identity of complainant; if an individual, complainant's residence; if a partnership, name of partners, business and principal place thereof; if a corporation, name, state of incorporation, and principal place of business. The same information with respect to respondents, intervenors, or others who become parties is necessary.
2. Description of commodity involved, with port of origin, destination port, weight, consignor and consignee of shipment(s), date shipped from loading port, and date received at discharge port.
3. Rate charged, with tariff authority for same, and any rule or regulation applicable thereto; the charges collected and from whom.
4. Route of shipment, including any transshipment; bill of lading reference.
5. Date of delivery or tender of delivery of each shipment.
6. Where the rate is challenged and comparisons are made with rates on other commodities, the form, packing, density, susceptibility to damage, tendency to contaminate other freight, value, volume of movement, competitive situation, and all matters relating to the cost of loading, unloading, and otherwise handling of respective commodities.
7. If comparisons are made between the challenged rates and rates on other routes, the allegation showing similarity of service should include at least respective distances, volumes of movement, cost of handling, and competitive conditions.
8. History of rate with reasons for previous increases or decreases of same.
9. When the complaint alleges undue prejudice or preference, the complaint should indicate what manner of undue prejudice or preference is involved, and whether to a particular person, locality, or description of traffic; how the preference or discrimination resulted and the manner in which the respondents are responsible for the same; and how complainant is damaged by the prejudice or preference, in loss of sales or otherwise.
10. Care should be exercised to differentiate between the measure of damages required in cases where prejudice or preference is charged, where the illegality of rates is charged and other situations.
11. Where a filed agreement or conduct under the agreement is challenged, all necessary provisions of the shipping statute involved must be specifically cited, showing in detail how a section was violated and how the conduct or agreement injures complainant. The complaint should be thorough and clear as to all relief complainant is requesting.
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 55 FR 28400, July 11, 1990; 64 FR 7808, Feb. 17, 1999]
Exhibit No. 2 to Subpart E [§502.64] of Part 502—Answer to Complaint
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Before the Federal Maritime Commission
Answer
______ v. ______
[Complainant] [Respondent]
Docket No. ____
The above-named respondent, for answer to the complaint in this proceeding, states:
I. [State in this and subsequent paragraphs to be numbered II, III, etc., appropriate and responsive admissions, denials, and averments, specifically answering the complaint, paragraph by paragraph.]
Wherefore respondent prays that the complaint in this proceeding be dismissed.
____________________
[Name of respondent]
By____________________
[Title of Officer]
____________________
[Office and post office address]
____________________
[Signature of attorney or agent]
____________________
[Post office address]
Date ______________, 19__.
Verification
[See form for verification of complaint in Exhibit No. 1 to this subpart and §502.112.]
Certificate of Service
[See §502.114.]
Exhibit No. 3 to Subpart E [§502.72] of Part 502—Petition for Leave To Intervene
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Before the Federal Maritime Commission
Petition for Leave To Intervene
___ v. ___ Docket No. ___.
Your petitioner, ______________, respectfully represents that he (she) has an interest in the matters in controversy in the above-entitled proceeding and desires to intervene in and become a party to said proceeding, and for grounds of the proposed intervention says:
I. That petitioner is [State whether an association, corporation, firm, or partnership, etc., as in Exhibit No. 1 to this subpart, and nature and principal place of business].
II. [Here set out specifically position and interest of petitioner in the above-entitled proceeding and other essential averments in accordance with Rule 72 (46 CFR 502.72).]
Wherefore said _____________ requests leave to intervene and be treated as a party hereto with the right to have notice of and appear at the taking of testimony, produce and cross-examine witnesses, and be heard in person or by counsel upon brief and at the oral argument, if oral argument is granted.
[If affirmative relief is sought, insert appropriate request here.]
Dated at ________, this _______ day of __________, 19__.
____________________
Petitioner's signature]
____________________
[Office and post office address]
____________________
[Signature of agent or attorney of petitioner]
____________________
[Post office address]
Verification and Certificate of Service
[See Exhibits Nos. 1 and 2 to this subpart.]
Subpart F—Settlement; Prehearing Procedure
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§ 502.91 Opportunity for informal settlement.
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(a) Parties are encouraged to make use of all the procedures of this part which are designed to simplify or avoid formal litigation, and to assist the parties in reaching settlements whenever it appears that a particular procedure would be helpful.
(b) Where time, the nature of the proceeding, and the public interest permit, all interested parties shall have the opportunity for the submission and consideration of facts, argument, offers of settlement, or proposal of adjustment, without prejudice to the rights of the parties.
(c) No stipulation, offer, or proposal shall be admissible in evidence over the objection of any party in any hearing on the matter. [Rule 91.]
(d) As soon as practicable after the commencement of any proceeding, the presiding judge shall direct the parties or their representatives to consider the use of alternative dispute resolution, including but not limited to mediation, and may direct the parties or their representatives to consult with the Federal Maritime Commission Alternative Dispute Resolution Specialist about the feasibility of alternative dispute resolution.
(e) Any party may request that a mediator or other neutral be appointed to assist the parties in reaching a settlement. If such a request or suggestion is made and is not opposed, the presiding judge will appoint a mediator or other neutral who is acceptable to all parties, coordinating with the Federal Maritime Commission Alternative Dispute Resolution Specialist. The mediator or other neutral shall convene and conduct one or more mediation or other sessions with the parties and shall inform the presiding judge, within the time prescribed by the presiding judge, whether the dispute resolution proceeding resulted in a resolution or not, and may make recommendations as to future proceedings. If settlement is reached, it shall be submitted to the presiding judge who shall issue an appropriate decision or ruling. All such dispute resolution proceedings shall be subject to the provisions of subpart U.
(f) Any party may request that a settlement judge be appointed to assist the parties in reaching a settlement. If such a request or suggestion is made and is not opposed, the presiding judge will advise the Chief Administrative Law Judge who may appoint a settlement judge who is acceptable to all parties. The settlement judge shall convene and preside over conferences and settlement negotiations and shall report to the presiding judge within the time prescribed by the Chief Administrative Law Judge, on the results of settlement discussions with appropriate recommendations as to future proceedings. If settlement is reached, it shall be submitted to the presiding judge who shall issue an appropriate decision or ruling. [Rule 91].
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 FR 7808, Feb. 17, 1999; 66 FR 43513, Aug. 20, 2001]
§ 502.92 [Reserved]
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§ 502.94 Prehearing conference.
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(a)(1) Prior to any hearing, the Commission or presiding officer may direct all interested parties, by written notice, to attend one or more prehearing conferences for the purpose of considering any settlement under §502.91, formulating the issues in the proceeding and determining other matters to aid in its disposition. In addition to any offers of settlement or proposals of adjustment, there may be considered the following:
(i) Simplification of the issues;
(ii) The necessity or desirability of amendments to the pleadings;
(iii) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(iv) Limitation on the number of witnesses;
(v) The procedure at the hearing;
(vi) The distribution to the parties prior to the hearing of written testimony and exhibits;
(vii) Consolidation of the examination of witnesses by counsel;
(viii) Such other matters as may aid in the disposition of the proceeding.
(2) The presiding officer may require, prior to the hearing, exchange of exhibits and any other material which may expedite the hearing. He or she shall assume the responsibility of accomplishing the purposes of the notice of prehearing conference so far as this may be possible without prejudice to the rights of any party.
(3) The presiding officer shall rule upon all matters presented for decision, orally upon the record when feasible, or by subsequent ruling in writing. If a party determines that a ruling made orally does not cover fully the issue presented, or is unclear, such party may petition for a further ruling thereon within ten (10) days after receipt of the transcript.
(b) In any proceeding under the rules in this part, the presiding officer may call the parties together for an informal conference prior to the taking of testimony, or may recess the hearing for such a conference, with a view to carrying out the purposes of this section. [Rule 94.]
(c) At any prehearing conference, consideration shall be given to whether the use of alternative dispute resolution would be appropriate or useful for the disposition of the proceeding whether or not there has been previous consideration of such use.
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 FR 7808, Feb. 17, 1999; 66 FR 43513, Aug. 20, 2001]
§ 502.95 Prehearing statements.
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(a) Unless waiver is granted by the presiding officer, it shall be the duty of all parties to a proceeding to prepare a statement or statements at a time and in the manner to be established by the presiding officer provided that there has been reasonable opportunity for discovery. To the extent possible, joint statements should be prepared.
(b) A prehearing statement shall state the name of the party or parties on whose behalf it is presented and briefly set forth the following matters, unless otherwise ordered by the presiding officer:
(1) Issues involved in the proceeding.
(2) Facts stipulated pursuant to the procedures together with a statement that the party or parties have communicated or conferred in a good faith effort to reach stipulation to the fullest extent possible.
(3) Facts in dispute.
(4) Witnesses and exhibits by which disputed facts will be litigated.
(5) A brief statement of applicable law.
(6) The conclusion to be drawn.
(7) Suggested time and location of hearing and estimated time required for presentation of the party's or parties' case.
(8) Any appropriate comments, suggestions or information which might assist the parties in preparing for the hearing or otherwise aid in the disposition of the proceeding.
(c) The presiding officer may, for good cause shown, permit a party to introduce facts or argue points of law outside the scope of the facts and law outlined in the prehearing statement. Failure to file a prehearing statement, unless waiver has been granted by the presiding officer, may result in dismissal of a party from the proceeding, dismissal of a complaint, judgment against respondents, or imposition of such other sanctions as may be appropriate under the circumstances.
(d) Following the submission of prehearing statements, the presiding officer may, upon motion or otherwise, convene a prehearing conference for the purpose of further narrowing issues and limiting the scope of the hearing if, in his or her opinion, the prehearing statements indicate lack of dispute of material fact not previously acknowledged by the parties or lack of legitimate need for cross-examination and is authorized to issue appropriate orders consistent with the purposes stated in this section. [Rule 95.]
Exhibit No. 1 to Subpart F of Part 502 [Reserved]
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Subpart G—Time
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§ 502.101 Computation.
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In computing any period of time under the rules in this part, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or national legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or national legal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, or national legal holidays shall be excluded from the computation. [Rule 101.]
§ 502.102 Enlargement of time to file documents.
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(a) Motions for enlargement of time for the filing of any pleading or other document, or in connection with the procedures of subpart L of this part, shall set forth the reasons for the motion and be submitted at least five (5) days before the scheduled date for filing. Except for good cause shown, failure to meet this time requirement may result in summary rejection of the request.
(b) Such motions will be granted only under exceptional circumstances duly demonstrated in the request, and shall conform to the requirements of Subpart H of this part, except as to service if they show that the parties have received actual notice of the motion; and in relation to briefs, exceptions, and replies to exceptions, such motions shall conform to the further provisions of §§502.222 and 502.227.
(c) Upon motion made after the expiration of the scheduled date, the filing may be permitted where reasonable grounds are found for the failure to file.
(d) Replies to such motions for enlargement of time shall conform to the requirements of §502.74. [Rule 102.]
[64 FR 7808, Feb. 17, 1999]
§ 502.103 Reduction of time to file documents.
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Except as otherwise provided by law and for good cause, the Commission, with respect to matters pending before it, and the presiding officer, with respect to matters pending before him or her, may reduce any time limit prescribed in the rules in this part. [Rule 103.]
§ 502.104 Postponement of hearing.
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Motions for postponement of any hearing date shall set forth the reasons for the motion, and shall conform to the requirements of subpart H of this part, except as to service if they show that parties have received such actual notice of motion. Such motions will be granted only if found necessary to prevent substantial delay, expense, detriment to the public interest or undue prejudice to a party. Such motions must be received, whether orally or in writing, at least five (5) days before the scheduled date for hearing. Except for good cause shown, failure to meet this requirement may result in summary rejection of the request. Replies to such motions shall conform to the requirements of §502.74. [Rule 104.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7809, Feb. 17, 1999]
§ 502.105 Waiver of rules governing enlargements of time and postponements of hearings.
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The Commission, the presiding officer, or the Chief Administrative Law Judge may waive the requirements of §§502.102 and 502.104 as to replies and may rule ex parte on such requests. [Rule 105.]
[64 FR 7809, Feb. 17, 1999]
Subpart H—Form, Execution, and Service of Documents
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§ 502.111 Form and appearance of documents filed with Commission.
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(a) All papers to be filed under the rules in this part must be clear and legible, dated, show the docket description and title of the proceeding, and include the title, if any, and address of the signer. An original signed in ink must be provided. Text shall appear on only one side of the paper and must be double spaced except that quotations must be single spaced and indented. The paper must be strong and durable, not more than 8 1/2 inches wide and 12 inches long, with a left hand margin of 1 1/2 inches. Documents shall be printed in clear type, never smaller than 12 point.
(b) Filings by facsimile for purposes of meeting a deadline will not be accepted unless authorized by the presiding officer or the Secretary.
(c) Facsimile transmissions of signature pages on filings will be tentatively accepted for the purpose of meeting filing deadlines pending receipt of the original signature page within seven working days. [Rule 111.]
[64 FR 7809, Feb. 17, 1999]
§ 502.112 Verification of documents.
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(a) If a party is represented by an attorney or other person qualified to practice before the Commission under the rules in this part, each pleading, document or other paper of such party filed with the Commission shall be signed by at least one person of record admitted to practice before the Commission in his or her individual name, whose address shall be stated. Except when otherwise specifically provided by rule or statute, such pleading, document or paper need not be verified or accompanied by affidavit. The signature of a person admitted or qualified to practice before the Commission constitutes a certificate by the signer that the signer has read the pleading, document or paper; that the signer is authorized to file it; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry the filing is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. For a willful violation of this section, a person admitted or qualified to practice before the Commission may be subjected to appropriate disciplinary action.
(b) If a party is not represented by a person admitted or qualified to practice before the Commission, each pleading, document or other paper of such party filed with the Commission shall be signed and verified under oath by the party or by a duly authorized officer or agent of the party, whose address and title shall be stated. The form of verification shall be substantially as set forth in exhibit No. 1 to subpart E. [Rule 112.]
(c) Wherever, under any rules of this part, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition under §502.203 or §502.204), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by such person, as true under penalty of perjury, in substantially the following form.
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.”
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.” [Rule 112.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 58 FR 27210, May 7, 1993; 64 FR 7809, Feb. 17, 1999]
§ 502.113 Service by the Commission.
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(a) Complaints filed pursuant to §502.62, (including any accompanying discovery requests initiated pursuant to §502.201(b)), amendments to complaints (unless otherwise authorized by the presiding officer pursuant to §502.70(b)), and complainant's memoranda filed in shortened procedure cases will be served by the Secretary of the Commission.
(b) The complainant may also effect proper service, in which case an affidavit setting forth the method, time and place of service must be filed with the Secretary within five days following service.
(c) In addition to and accompanying the original of every document filed with the Commission for service by the Commission, there shall be a sufficient number of copies for use of the Commission (see §502.118) and for service on each party to the proceeding.
(d) The presiding officer may dismiss a complaint that has not been served within thirty (30) days after the complaint was filed. [Rule 113.]
[64 FR 7809, Feb. 17, 1999]
§ 502.114 Service by parties of pleadings and other documents.
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(a) Except as otherwise specifically provided by the rules in this part, all pleadings, documents, and papers of every kind (except requests for subpoenas, documents served by the Commission under §502.113, and documents submitted at a hearing or prehearing conference) in proceedings before the Commission under the rules in this part shall, when tendered to the Commission or the presiding officer for filing, show that service has been made upon all parties to the proceeding and upon any other persons required by the rules in this part to be served. Such service shall be made by delivering one copy to each party; by hand delivering in person; by mail, properly addressed with postage prepaid; by courier; or by facsimile transmission if agreed by both parties prior to service.
(b) Service on all prior participants shall be shown when submitting comments or replies beyond the initial round, or when submitting post-decisional pleadings and replies such as petitions for reconsideration, or for stay under rule 261 or to reopen under rule 230 in all general notice proceedings, including those involving disposition of petitions for rulemaking (rule 51), petitions for declaratory order (rule 68), petitions general (rule 69), notices of proposed rulemaking (rule 52), proceedings under section 19 of the Merchant Marine Act, 1920, 46 U.S.C. app. 876(1)(b) (part 550), and proceedings under section 13(b)(6) of the Shipping Act of 1984 (part 560). A list of all participants may be obtained from the Secretary of the Commission.
(c) Except with respect to filing of complaints pursuant to §§502.62 and 502.63, and claims pursuant to §502.302, the date of filing shall be either the date on which the pleading, document, or paper is physically lodged with the Commission by a party or the date which a party certifies it to have been deposited in the mail or delivered to a courier. [Rule 114.]
[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28400, July 11, 1990; 61 FR 66617, Dec. 18, 1996; 64 FR 7809, Feb. 17, 1999]
§ 502.115 Service on attorney or other representative.
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When a party has appeared by attorney or other representative, service upon each attorney or other representative of record will be deemed service upon the party, except that, if two or more attorneys of record are partners or associates of the same firm, only one of them need be served. [Rule 115.]
§ 502.116 Date of service.
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The date of service of documents served by the Commission shall be the date shown in the service stamp thereon. The date of service of documents served by parties shall be the date when matter served is deposited in the United States mail, delivered to a courier, delivered in person, or transmitted by facsimile, as the case may be. In computing the time from such dates, the provisions of §502.101 shall apply. [Rule 116.]
[64 FR 7809, Feb. 17, 1999]
§ 502.117 Certificate of service.
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The original of every document filed with the Commission and required to be served upon all parties to a proceeding shall be accompanied by a certificate of service signed by the party making service, stating that such service has been made upon each party to the proceeding. Certificates of service may be in substantially the following form:
Certificate of Service
I hereby certify that I have this day served the foregoing document upon [all parties of record or name of person(s)] by [mailing, delivering to courier or delivering in person] a copy to each such person.
Dated at, ___ this ___ day of ___ 19—.
(Signature) ________________________________ ____________________
(For)____________________
[Rule 117.]
§ 502.118 Copies of documents for use of the Commission.
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(a) Except as otherwise provided in the rules in this part, the original and fifteen (15) copies of every document filed and served in proceedings before the Commission shall be furnished for the Commission's use. If a certificate of service accompanied the original document, a copy of such certificate shall be attached to each such copy of the document.
(b) In matters pending before an administrative law judge the following copy requirements apply.
(1) An original and fifteen copies shall be filed with the Secretary of:
(i) Appeals and replies thereto filed pursuant to §502.153;
(ii) Memoranda submitted under shortened procedures of subpart K of this part;
(iii) Briefs submitted pursuant to §502.221;
(iv) All motions, replies and other filings for which a request is made of the administrative law judge for certification to the Commission or on which it otherwise appears it will be necessary for the Commission to rule either directly or upon review of the administrative law judge's disposition thereof, pursuant to §502.227;
(v) Answers to complaints filed pursuant to §502.64.
(2) An original and four copies shall be filed with the Secretary of prehearing statements required by §502.95, stipulations under §502.162, notices of appearance required by §502.23, and all other motions, petitions, or other written communications seeking a ruling from the presiding administrative law judge.
(3)(i) A single copy shall be filed with the Secretary of requests for discovery, answers, or objections exchanged among the parties under procedures of subpart L of this part. Such materials will not be part of the record for decision unless admitted by the presiding officer or Commission.
(ii) Motions filed pursuant to §502.201 are governed by the requirements of paragraph (b)(2) of this section and motions involving persons and documents located in a foreign country are governed by the requirements of paragraph (b)(1)(iv) of this section.
(4) One copy of each exhibit shall be furnished to the official reporter, to each of the parties present at the hearing and to the Presiding Officer unless he or she directs otherwise. If submitted other than at a hearing, the “reporter's” copy of an exhibit shall be furnished to the administrative law judge for later inclusion in the record if and when admitted.
(5) Copies of prepared testimony submitted pursuant to §502.157 are governed by the requirements for exhibits in paragraph (b)(4) of this section. [Rule 118.]
[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28400, July 11, 1990; 61 FR 66617, Dec. 18, 1996; 64 FR 7809, Feb. 17, 1999]
§ 502.119 Documents containing confidential materials.
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Except as otherwise provided in the rules of this part, all filings which contain information previously designated as confidential pursuant to §§502.167, 502.201(i)(1)(vii), or any other rules of this part or for which a request for protective order pursuant to §502.201(i)(1)(vii) is pending, are subject to the following requirements:
(a) Filings shall be accompanied by a transmittal letter which identifies the filing as “confidential” and describes the nature and extent of the authority for requesting confidential treatment. The confidential copies shall consist of the complete filing and shall include a cover page marked “Confidential-Restricted,” with the confidential materials clearly marked on each page.
(b) Whenever a confidential filing is submitted, there must also be submitted an original and one copy of a public version of the filing. Such public version shall exclude confidential materials, and shall indicate on the cover page and on each affected page “confidential materials excluded.”
(c) Confidential treatment afforded by this section is subject to the proviso that any information designated as confidential may be used by the administrative law judge or the Commission if deemed necessary to a correct decision in the proceeding. [Rule 119.]
[55 FR 28400, July 11, 1990, as amended at 64 FR 7809, Feb. 17, 1999]
Subpart I—Subpenas
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§ 502.131 Requests; issuance.
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Subpenas for the attendance of witnesses or the production of evidence shall be issued upon request of any party, without notice to any other party. Requests for subpenas for the attendance of witnesses may be made orally or in writing; requests for subpenas for the production of evidenceshall be in writing. The party requesting the subpena shall tender to the presiding officer an original and at least two copies of such subpena. Where it appears to the presiding officer that the subpena sought may be unreasonable, oppressive, excessive in scope, or unduly burdensome, he or she may in his or her discretion, as a condition precedent to the issuance of the subpena, require the person seeking the subpena to show the general relevance and reasonable scope of the testimony or other evidence sought. [Rule 131.] (continued)