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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 21:21:6.0.1.1.3.0.1.1 | 21 | Food and Drugs | I | E | 502 | PART 502—COMMON OR USUAL NAMES FOR NONSTANDARDIZED ANIMAL FOODS | § 502.5 General principles. | FDA | [41 FR 38627, Sept. 10, 1976. Redesignated at 42 FR 14091, Mar. 15, 1977] | (a) The common or usual name of a food, which may be a coined term, shall accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food or its characterizing properties or ingredients. The name shall be uniform among all identical or similar products and may not be confusingly similar to the name of any other food that is not reasonably encompassed within the same name. Each class or subclass of food shall be given its own common or usual name that states, in clear terms, what it is in a way that distinguishes it from different foods. (b) The common or usual name of a food shall include the percentage(s) of any characterizing ingredient(s) or component(s) when the proportion of such ingredient(s) or component(s) in the food has a material bearing on price or consumer acceptance or when the labeling or the appearance of the food may otherwise create an erroneous impression that such ingredient(s) or component(s) is present in an amount greater than is actually the case. The following requirements shall apply unless modified by a specific regulation in this part. (1) The percentage of a characterizing ingredient or component shall be declared on the basis of its quantity in the finished product (i.e., weight/weight in the case of solids, or volume/volume in the case of liquids). (2) The percentage of a characterizing ingredient or component shall be declared by the words “containing (or contains) __ percent (or %) __” or “__ percent (or %) __” with the first blank filled in with the percentage expressed as a whole number not greater than the actual percentage of the ingredient or component named and the second blank filled in with the common or usual name of the ingredient or component. The word “containing” (or “contains”), when used, shall appear on a line immediately below the part of the common or usual name of the food required by paragraph (a) of this section. For each characterizing ingredient or component, the words “__ percent (or %) __”shall appear following o… | |||||
| 21:21:6.0.1.1.3.0.1.2 | 21 | Food and Drugs | I | E | 502 | PART 502—COMMON OR USUAL NAMES FOR NONSTANDARDIZED ANIMAL FOODS | § 502.19 Petitions. | FDA | [42 FR 4716, Jan. 25, 1977; 42 FR 10980, Feb. 25, 1977. Redesignated at 42 FR 14091, Mar. 15, 1977, and amended at 42 FR 15675, Mar. 22, 1977; 42 FR 24254, May 13, 1977] | (a) The Commissioner of Food and Drugs, either on his own initiative or on behalf of any interested person who has submitted a petition, may publish a proposal to issue, amend, or revoke, under this part, a regulation prescribing a common or usual name for a food, pursuant to part 10 of this chapter. (b) If the principal display panel of a food for which a common or usual name regulation is established is too small to accommodate all mandatory requirements, the Commissioner may establish by regulation an acceptable alternative, e.g., a smaller type size. A petition requesting such a regulation, which would amend the applicable regulation, shall be submitted pursuant to part 10 of this chapter. | |||||
| 29:29:3.1.1.1.3.1.70.1 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.0 Introduction. | DOL-WHD | These regulations cover the enforcement of all contractual obligation provisions applicable to the employment of H-2A workers under sec. 218 of the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA). These regulations are also applicable to the employment of United States (U.S.) workers newly hired by employers of H-2A workers in the same occupations as the H-2A workers during the period of time set forth in the labor certification approved by ETA as a condition for granting H-2A certification, including any extension thereof. Such U.S. workers hired by H-2A employers are hereafter referred to as engaged in corresponding employment. | ||||
| 29:29:3.1.1.1.3.1.70.10 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.10 Definitions. | DOL-WHD | (a) Definitions of terms used in this part. For the purpose of this part: Administrative Law Judge (ALJ) means a person within the Department's Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105, or a panel of such persons designated by the Chief Administrative Law Judge from the Board of Alien Labor Certification Appeals (BALCA) established by part 656 of this chapter, which will hear and decide appeals as set forth at 20 CFR 655.115. Administrator, WHD means the Administrator of the Wage and Hour Division (WHD), ESA and such authorized representatives as may be designated to perform any of the functions of the Administrator, WHD under this part. Adverse effect wage rate (AEWR) means the minimum wage rate that the Administrator of the Office of Foreign Labor Certification (OFLC) has determined must be offered and paid to every H-2A worker employed under the DOL-approved Application for Temporary Employment Certification in a particular occupation and/or area, as well as to U.S. workers hired by employers into corresponding employment during the H-2A recruitment period, to ensure that the wages of similarly employed U.S. workers will not be adversely affected. Agent means a legal entity or person, such as an association of agricultural employers, or an attorney for an association, that— (1) Is authorized to act on behalf of the employer for temporary agricultural labor certification purposes; (2) Is not itself an employer, or a joint employer, as defined in this section, with respect to a specific application; and (3) Is not under suspension, debarment, expulsion, or disbarment from practice before any court or the Department, the Board of Immigration Appeals, the immigration judges, or DHS under 8 CFR 292.3, 1003.101. Agricultural association means any nonprofit or cooperative association of farmers, growers, or ranchers (including but not limited to processing establishments, canneries, gins, packing sheds, nurseries, or other fixed-site agricultural employers), incorporated … | ||||
| 29:29:3.1.1.1.3.1.70.2 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.1 Purpose and scope. | DOL-WHD | (a) Statutory standard. Section 218(a) of the INA provides that: (1) A petition to import an alien as an H-2A worker (as defined in the INA) may not be approved by the Secretary of the Department of Homeland Security (DHS) unless the petitioner has applied to the Secretary of the United States Department of Labor (Secretary) for a certification that: (i) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and (ii) The employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. (2) [Reserved] (b) Role of the Employment and Training Administration (ETA). The issuance and denial of labor certification under sec. 218 of the INA has been delegated by the Secretary to ETA, an agency within the U.S. Department of Labor (the Department or DOL). In general, matters concerning the obligations of an employer of H-2A workers related to the labor certification process are administered and enforced by ETA. Included within ETA's jurisdiction are issues such as whether U.S. workers are available, whether adequate recruitment has been conducted, whether there is a strike or lockout, the methodology for establishing AEWR, whether workers' compensation insurance has been provided, whether employment was offered to U.S. workers as required by sec. 218 of the INA and regulations at 20 CFR part 655, subpart B, and other similar matters. The regulations pertaining to the issuance and denial of labor certification for temporary alien workers by the ETA are found in 20 CFR part 655, subpart B. (c) Role of the Employment Standards Administration (ESA), Wage and Hour Division (WHD). (1) The Secretary is authorized to take actions that assure compliance with the terms and conditions of employment under sec. 218 of the INA, the regulations at 20 CFR part 655, subpart B, or these regulations, including the as… | ||||
| 29:29:3.1.1.1.3.1.70.3 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.2 Coordination of intake between DOL agencies. | DOL-WHD | Complaints received by ETA or any State Workforce Agency (SWA) regarding contractual H-2A labor standards between the employer and the employee will be immediately forwarded to the appropriate WHD office for appropriate action under these regulations. | ||||
| 29:29:3.1.1.1.3.1.70.4 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.3 Discrimination prohibited. | DOL-WHD | (a) No person shall intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person who has: (1) Filed a complaint under or related to sec. 218 of the INA or these regulations; (2) Instituted or caused to be instituted any proceedings related to sec. 218 of the INA or these regulations; (3) Testified or is about to testify in any proceeding under or related to sec. 218 of the INA or these regulations; (4) Exercised or asserted on behalf of himself or others any right or protection afforded by sec. 218 of the INA or these regulations; or (5) Consulted with an employee of a legal assistance program or an attorney on matters related to sec. 218 of the INA, or to this subpart or any other Department regulation promulgated pursuant to sec. 218 of the INA. (b) Allegations of discrimination against any person under paragraph (a) of this section will be investigated by the WHD. Where the WHD has determined through investigation that such allegations have been substantiated, appropriate remedies may be sought. The WHD may assess civil money penalties, seek injunctive relief, and/or seek additional remedies necessary to make the employee whole as a result of the discrimination, as appropriate, and may recommend to ETA debarment of any such violator from future labor certification. Complaints alleging discrimination against U.S. workers and immigrants based on citizenship or immigration status may also be forwarded by the WHD to the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices. | ||||
| 29:29:3.1.1.1.3.1.70.5 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.4 Waiver of rights prohibited. | DOL-WHD | No person shall seek to have an H-2A worker, or other U.S. worker hired in corresponding employment by an H-2A employer, waive any rights conferred under sec. 218 of the INA, the regulations at 20 CFR part 655, Subpart B, or under these regulations. Any agreement by an employee purporting to waive or modify any rights inuring to said person under the INA or these regulations shall be void as contrary to public policy, except that a waiver or modification of rights or obligations hereunder in favor of the Secretary shall be valid for purposes of enforcement of the provisions of the INA or these regulations. This does not prevent agreements to settle private litigation. | ||||
| 29:29:3.1.1.1.3.1.70.6 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.5 Investigation authority of Secretary. | DOL-WHD | (a) General. The Secretary, either pursuant to a complaint or otherwise, shall, as may be appropriate, investigate and, in connection therewith, enter and inspect such places (including housing) and such vehicles, and such records (and make transcriptions thereof), question such persons and gather such information as deemed necessary by the Secretary to determine compliance with contractual obligations under sec. 218 of the INA or these regulations. (b) Failure to cooperate with an investigation. Where any employer (or employer's agent or attorney) using the services of an H-2A worker does not cooperate with an investigation concerning the employment of H-2A workers or U.S. workers hired in corresponding employment, the WHD shall report such occurrence to ETA and may recommend that ETA revoke the existing certification that is the basis for the employment of the H-2A workers giving rise to the investigation, and the WHD may recommend to ETA the debarment of the employer from future certification for up to 3 years. In addition, the WHD may take such action as may be appropriate, including the seeking of an injunction and/or assessing civil money penalties, against any person who has failed to permit the WHD to make an investigation. (c) Confidential investigation. The Secretary shall conduct investigations in a manner that protects the confidentiality of any complainant or other person who provides information to the Secretary in good faith. (d) Report of violations. Any person may report a violation of the work contract obligations of sec. 218 of the INA or these regulations to the Secretary by advising any local office of the SWA, ETA, WHD, or any other authorized representative of the Secretary. The office or person receiving such a report shall refer it to the appropriate office of DOL, WHD for the geographic area in which the reported violation is alleged to have occurred. | ||||
| 29:29:3.1.1.1.3.1.70.7 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.6 Cooperation with DOL officials. | DOL-WHD | All persons must cooperate with any official of the DOL assigned to perform an investigation, inspection, or law enforcement function pursuant to the INA and these regulations during the performance of such duties. The WHD will take such action as it deems appropriate, including seeking an injunction to bar any failure to cooperate with an investigation and/or assessing a civil money penalty therefore. In addition, the WHD will report the matter to ETA, and the WHD may recommend to ETA the debarment of the employer from future certification and/or recommend that the person's existing labor certification be revoked. In addition, Federal statutes prohibiting persons from interfering with a Federal officer in the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 1114. | ||||
| 29:29:3.1.1.1.3.1.70.8 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.7 Accuracy of information, statements, data. | DOL-WHD | Information, statements and data submitted in compliance with provisions of the Act or these regulations are subject to 18 U.S.C. 1001, which provides, with regard to statements or entries generally, that whoever, in any matter within the jurisdiction of any department or agency of the U.S. knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both. | ||||
| 29:29:3.1.1.1.3.1.70.9 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | A | Subpart A—General Provisions | § 502.8 Surety bond. | DOL-WHD | (a) H-2ALCs shall obtain a surety bond to assure compliance with the provisions of this part and 20 CFR part 655, subpart B for each labor certification being sought. The H-2ALC shall attest on the application for labor certification that such a bond meeting all the requirements of this section has been obtained and shall provide on the labor certification application form information that fully identifies the surety, including the name, address and phone number of the surety, and which identifies the bond by number or other identifying designation. (b) The bond shall be payable to the Administrator, Wage and Hour Division, United States Department of Labor. It shall obligate the surety to pay any sums to the Administrator, WHD, for wages and benefits owed to H-2A and U.S. workers, based on a final decision finding a violation or violations of this part or 20 CFR part 655, subpart B relating to the labor certification the bond is intended to cover. The aggregate liability of the surety shall not exceed the face amount of the bond. The bond shall be written to cover liability incurred during the term of the period listed in the application for labor certification made by the H-2ALC, and shall be amended to cover any extensions of the labor certification requested by the H-2ALC. Surety bonds may not be canceled or terminated unless 30 days' notice is provided by the surety to the Administrator, WHD. (c) The bond shall be in the amount of $5,000 for a labor certification for which a H-2ALC will employ fewer than 25 employees, $10,000 for a labor certification for which a H-2ALC will employ 25 to 49 employees, and $20,000 for a labor certification for which a H-2ALC will employ 50 or more employees. The amount of the bond may be increased by the Administrator, WHD after notice and an opportunity for hearing when it is shown based on objective criteria that the amount of the bond is insufficient to meet potential liabilities. | ||||
| 29:29:3.1.1.1.3.2.70.1 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | B | Subpart B—Enforcement of Work Contracts | § 502.15 Enforcement. | DOL-WHD | The investigation, inspections and law enforcement functions to carry out the provisions of sec. 218 of the INA, as provided in these regulations for enforcement by the WHD, pertain to the employment of any H-2A worker and any other U.S. worker hired in corresponding employment by an H-2A employer. Such enforcement includes work contract provisions as defined in § 501.10(a). The work contract also includes those employment benefits which are required to be stated in the job offer, as prescribed in 20 CFR 655.104. | ||||
| 29:29:3.1.1.1.3.2.70.2 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | B | Subpart B—Enforcement of Work Contracts | § 502.16 Sanctions and remedies—General. | DOL-WHD | Whenever the Secretary believes that the H-2A provisions of the INA or these regulations have been violated such action shall be taken and such proceedings instituted as deemed appropriate, including (but not limited to) the following: (a) Institute appropriate administrative proceedings, including: The recovery of unpaid wages, including wages owed to U.S. workers as a result of a layoff or displacement prohibited by these rules (either directly from the employer, a successor in interest, or in the case of an H-2ALC also by claim against any surety who issued a bond to the H-2ALC); the enforcement of covered provisions of the work contract as set forth in 29 CFR 501.10(a); the assessment of a civil money penalty; reinstatement; or the recommendation of debarment for up to 3 years. (b) Petition any appropriate District Court of the U.S. for temporary or permanent injunctive relief, including the withholding of unpaid wages and/or reinstatement, to restrain violation of the H-2A provisions of the INA, 20 CFR part 655, Subpart B, or these regulations by any person. (c) Petition any appropriate District Court of the U.S. for specific performance of covered contractual obligations. | ||||
| 29:29:3.1.1.1.3.2.70.3 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | B | Subpart B—Enforcement of Work Contracts | § 502.17 Concurrent actions. | DOL-WHD | The taking of any one of the actions referred to above shall not be a bar to the concurrent taking of any other action authorized by the H-2A provisions of the Act and these regulations, or the regulations of 20 CFR part 655. | ||||
| 29:29:3.1.1.1.3.2.70.4 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | B | Subpart B—Enforcement of Work Contracts | § 502.18 Representation of the Secretary. | DOL-WHD | (a) Except as provided in 28 U.S.C. 518(a) relating to litigation before the Supreme Court, the Solicitor of Labor may appear for and represent the Secretary in any civil litigation brought under the Act. (b) The Solicitor of Labor, through authorized representatives, shall represent the Administrator, WHD and the Secretary in all administrative hearings under the H-2A provisions of the Act and these regulations. | ||||
| 29:29:3.1.1.1.3.2.70.5 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | B | Subpart B—Enforcement of Work Contracts | § 502.19 Civil money penalty assessment. | DOL-WHD | (a) A civil money penalty may be assessed by the Administrator, WHD for each violation of the work contract as set forth in § 501.10(a) of these regulations. (b) In determining the amount of penalty to be assessed for any violation of the work contract as provided in the H-2A provisions of the Act or these regulations the Administrator, WHD shall consider the type of violation committed and other relevant factors. The matters which may be considered include, but are not limited to, the following: (1) Previous history of violation or violations of the H-2A provisions of the Act and these regulations; (2) The number of H-2A employees, corresponding U.S. employees or those U.S. workers individually rejected for employment affected by the violation or violations; (3) The gravity of the violation or violations; (4) Efforts made in good faith to comply with the H-2A provisions of the Act and these regulations; (5) Explanation of person charged with the violation or violations; (6) Commitment to future compliance, taking into account the public health, interest or safety, and whether the person has previously violated the H-2A provisions of the Act; (7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers. (c) A civil money penalty for violation of the work contract will not exceed $1,000 for each violation committed (with each failure to pay a worker properly or to honor the terms or conditions of a worker's employment that is required by sec. 218 of the INA, 20 CFR 655, subpart B, or these regulations constituting a separate violation), with the following exceptions: (1) For a willful failure to meet a covered condition of the work contract, or for willful discrimination, the civil money penalty shall not exceed $5,000 for each such violation committed (with each willful failure to honor the terms or conditions of a worker's employment that are required by sec. 218 of the INA, 20 CFR 655, subpart B, or these regula… | ||||
| 29:29:3.1.1.1.3.2.70.6 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | B | Subpart B—Enforcement of Work Contracts | § 502.20 Debarment and revocation. | DOL-WHD | (a) The WHD shall recommend to the Administrator, OFLC the debarment of any employer and any successor in interest to that employer (or the employer's attorney or agent if they are a responsible party) if the WHD finds that the employer substantially violated a material term or condition of its temporary labor certification for the employment of domestic or nonimmigrant workers. (b) For purposes of this section, a substantial violation includes: (1) A pattern or practice of acts of commission or omission on the part of the employer or the employer's agent which: (i) Are significantly injurious to the wages, benefits required to be offered under the H-2A program, or working conditions of a significant number of the employer's U.S. or H-2A workers; (ii) Reflect a significant failure to offer employment to all qualified domestic workers who applied for the job opportunity for which certification was being sought, except for lawful job-related reasons; (iii) Reflect a willful failure to comply with the employer's obligations to recruit U.S. workers as set forth in this subpart; or (iv) Reflect the employment of an H-2A worker outside the area of intended employment, or in an activity/activities, not listed in the job order (other than an activity minor and incidental to the activity/activities listed in the job order), or after the period of employment specified in the job order and any approved extension; (2) A significant failure to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, or law enforcement function under sec. 218 of the INA, 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual obligations); or (3) A significant failure to comply with one or more sanctions or remedies imposed by the ESA for violation(s) of obligations found by that agency (if applicable), or with one or more decisions or orders of the Secretary or a court order secured by the Secretary under sec. 218 of the INA, 8 U.S.C. 1188, this subpart, or 29 CFR part … | ||||
| 29:29:3.1.1.1.3.2.70.7 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | B | Subpart B—Enforcement of Work Contracts | § 502.21 Failure to cooperate with investigations. | DOL-WHD | No person shall refuse to cooperate with any employee of the Secretary who is exercising or attempting to exercise this investigative or enforcement authority. As stated in §§ 501.6 and 501.19 of this part, a civil money penalty may be assessed for each failure to cooperate with an investigation, and other appropriate relief may be sought. In addition, the WHD shall report each such occurrence to ETA, and ETA may debar the employer from future certification. The WHD may also recommend to ETA that an existing certification be revoked. The taking of any one action shall not bar the taking of any additional action. | ||||
| 29:29:3.1.1.1.3.2.70.8 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | B | Subpart B—Enforcement of Work Contracts | § 502.22 Civil money penalties—payment and collection. | DOL-WHD | Where the assessment is directed in a final order by the Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty is due within 30 days and payable to the United States Department of Labor. The person assessed such penalty shall remit promptly the amount thereof as finally determined, to the Administrator, WHD by certified check or by money order, made payable to the order of Wage and Hour Division, United States Department of Labor. The remittance shall be delivered or mailed to the WHD Regional Office for the area in which the violations occurred. | ||||
| 29:29:3.1.1.1.3.3.70.1 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.30 Applicability of procedures and rules. | DOL-WHD | The procedures and rules contained herein prescribe the administrative process that will be applied with respect to a determination to impose an assessment of civil money penalties, and which may be applied to the enforcement of covered provisions of the work contract as set forth in § 501.10(a), including the collection of unpaid wages due as a result of any violation of the H-2A provisions of the Act or of these regulations. Except with respect to the imposition of civil money penalties, the Secretary may, in the Secretary's discretion, seek enforcement action in Federal court without resort to any administrative proceedings. | ||||
| 29:29:3.1.1.1.3.3.70.2 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.31 Written notice of determination required. | DOL-WHD | Whenever the Administrator, WHD decides to assess a civil money penalty or to proceed administratively to enforce covered contractual obligations, including the recovery of unpaid wages, the person against whom such action is taken shall be notified in writing of such determination. | ||||
| 29:29:3.1.1.1.3.3.70.3 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.32 Contents of notice. | DOL-WHD | The notice required by § 501.31 shall: (a) Set forth the determination of the Administrator, WHD including the amount of any unpaid wages due or actions necessary to fulfill a covered contractual obligation, the amount of any civil money penalty assessment and the reason or reasons therefore. (b) Set forth the right to request a hearing on such determination. (c) Inform any affected person or persons that in the absence of a timely request for a hearing, the determination of the Administrator, WHD shall become final and unappealable. (d) Set forth the time and method for requesting a hearing, and the procedures relating thereto, as set forth in § 501.33. | ||||
| 29:29:3.1.1.1.3.3.70.4 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.33 Request for hearing. | DOL-WHD | (a) Any person desiring review of a determination referred to in § 501.32, including judicial review, shall make a written request for an administrative hearing to the official who issued the determination at the WHD address appearing on the determination notice, no later than 30 days after issuance of the notice referred to in § 501.32. (b) No particular form is prescribed for any request for hearing permitted by this part. However, any such request shall: (1) Be typewritten or legibly written; (2) Specify the issue or issues stated in the notice of determination giving rise to such request; (3) State the specific reason or reasons why the person requesting the hearing believes such determination is in error; (4) Be signed by the person making the request or by an authorized representative of such person; and (5) Include the address at which such person or authorized representative desires to receive further communications relating thereto. (c) The request for such hearing must be received by the official who issued the determination, at the WHD address appearing on the determination notice, within the time set forth in paragraph (a) of this section. For the affected person's protection, if the request is by mail, it should be by certified mail. (d) The determination shall take effect on the start date identified in the determination, unless an administrative appeal is properly filed. The timely filing of an administrative appeal stays the determination pending the outcome of the appeal proceedings. | ||||
| 29:29:3.1.1.1.3.3.71.10 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.39 Service upon attorneys for the Department of Labor—number of copies. | DOL-WHD | Two copies of all pleadings and other documents required for any administrative proceeding provided herein shall be served on the attorneys for the DOL. One copy shall be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, and one copy on the Attorney representing the Department in the proceeding. | ||||
| 29:29:3.1.1.1.3.3.71.5 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.34 General. | DOL-WHD | Except as specifically provided in these regulations, the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings described in this part. | ||||
| 29:29:3.1.1.1.3.3.71.6 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.35 Commencement of proceeding. | DOL-WHD | Each administrative proceeding permitted under the Act and these regulations shall be commenced upon receipt of a timely request for hearing filed in accordance with § 501.33. | ||||
| 29:29:3.1.1.1.3.3.71.7 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.36 Caption of proceeding. | DOL-WHD | (a) Each administrative proceeding instituted under the Act and these regulations shall be captioned in the name of the person requesting such hearing, and shall be styled as follows: (b) For the purposes of such administrative proceedings the Administrator, WHD shall be identified as plaintiff and the person requesting such hearing shall be named as respondent. | ||||
| 29:29:3.1.1.1.3.3.71.8 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.37 Referral to Administrative Law Judge. | DOL-WHD | (a) Upon receipt of a timely request for a hearing filed pursuant to and in accordance with § 501.33, the Administrator, WHD, by the Associate Solicitor for the Division of Fair Labor Standards or by the Regional Solicitor for the Region in which the action arose, shall, by Order of Reference, promptly refer a copy of the notice of administrative determination complained of, and the original or a duplicate copy of the request for hearing signed by the person requesting such hearing or by the authorized representative of such person, to the Chief Administrative Law Judge, for a determination in an administrative proceeding as provided herein. The notice of administrative determination and request for hearing shall be filed of record in the Office of the Chief Administrative Law Judge and shall, respectively, be given the effect of a complaint and answer thereto for purposes of the administrative proceeding, subject to any amendment that may be permitted under these regulations or 29 CFR part 18. (b) A copy of the Order of Reference, together with a copy of these regulations, shall be served by counsel for the Administrator, WHD upon the person requesting the hearing, in the manner provided in 29 CFR 18.3. | ||||
| 29:29:3.1.1.1.3.3.71.9 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.38 Notice of docketing. | DOL-WHD | Upon receipt of an Order of Reference, the Chief Administrative Law Judge shall appoint an ALJ to hear the case. The ALJ shall promptly notify all interested parties of the docketing of the matter and shall set the time and place of the hearing. The date of the hearing shall be not more than 60 days from the date on which the Order of Reference was filed. | ||||
| 29:29:3.1.1.1.3.3.72.11 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.40 Consent findings and order. | DOL-WHD | (a) General. At any time after the commencement of a proceeding under this part, but prior to the reception of evidence in any such proceeding, a party may move to defer the receipt of any evidence for a reasonable time to permit negotiation of an agreement containing consent findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be at the discretion of the ALJ, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement being reached which will result in a just disposition of the issues involved. (b) Content. Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide: (1) That the order shall have the same force and effect as an order made after full hearing; (2) That the entire record on which any order may be based shall consist solely of the notice of administrative determination (or amended notice, if one is filed), and the agreement; (3) A waiver of any further procedural steps before the ALJ; and (4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement. (c) Submission. On or before the expiration of the time granted for negotiations, the parties or their authorized representatives or their counsel may: (1) Submit the proposed agreement for consideration by the ALJ; or (2) Inform the ALJ that agreement cannot be reached. (d) Disposition. In the event an agreement containing consent findings and an order is submitted within the time allowed therefor, the ALJ, within 30 days thereafter, shall, if satisfied with its form and substance, accept such agreement by issuing a decision based upon the agreed findings. | ||||
| 29:29:3.1.1.1.3.3.73.12 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.41 Decision and order of Administrative Law Judge. | DOL-WHD | (a) The ALJ shall prepare, within 60 days after completion of the hearing and closing of the record, a decision on the issues referred by the Administrator, WHD. (b) The decision of the ALJ shall include a statement of findings and conclusions, with reasons and basis therefor, upon each material issue presented on the record. The decision shall also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator, WHD. The reason or reasons for such order shall be stated in the decision. (c) The decision shall be served on all parties and the Administrative Review Board (ARB) in person or by certified mail. (d) The decision concerning civil money penalties and/or back wages when served by the ALJ shall constitute the final agency order unless the ARB, as provided for in § 501.42, determines to review the decision. | ||||
| 29:29:3.1.1.1.3.3.74.13 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.42 Procedures for initiating and undertaking review. | DOL-WHD | (a) A respondent, the WHD, or any other party wishing review, including judicial review, of the decision of an ALJ shall, within 30 days of the decision of the ALJ, petition the ARB to review the decision. Copies of the petition shall be served on all parties and on the ALJ. If the ARB does not issue a notice accepting a petition for review of the decision concerning civil money penalties and/or back wages within 30 days after receipt of a timely filing of the petition, or within 30 days of the date of the decision if no petition has been received, the decision of the ALJ shall be deemed the final agency action. If the ARB does not issue a notice accepting a petition for review of the decision concerning the debarment recommendation within 30 days after the receipt of a timely filing of the petition, or if no petition has been received by the ARB within 30 days of the date of the decision, the decision of the ALJ shall be deemed the final agency action. If a petition for review is accepted, the decision of the ALJ shall be inoperative unless and until the ARB issues an order affirming the decision. (b) Whenever the ARB, either on the ARB's own motion or by acceptance of a party's petition, determines to review the decision of an ALJ, a notice of the same shall be served upon the ALJ and upon all parties to the proceeding in person or by certified mail. | ||||
| 29:29:3.1.1.1.3.3.74.14 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.43 Responsibility of the Office of Administrative Law Judges. | DOL-WHD | Upon receipt of the ARB's Notice pursuant to § 501.42 of these regulations, the Office of ALJ shall promptly forward a copy of the complete hearing record to the ARB. | ||||
| 29:29:3.1.1.1.3.3.74.15 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.44 Additional information, if required. | DOL-WHD | Where the ARB has determined to review such decision and order, the ARB shall notify each party of: (a) The issue or issues raised; (b) The form in which submissions shall be made ( i.e. , briefs, oral argument, etc.); and (c) The time within which such presentation shall be submitted. | ||||
| 29:29:3.1.1.1.3.3.74.16 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.45 Final decision of the Administrative Review Board. | DOL-WHD | The ARB's final decision shall be issued within 90 days from the notice granting the petition and served upon all parties and the ALJ, in person or by certified mail. | ||||
| 29:29:3.1.1.1.3.3.75.17 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.46 Retention of official record. | DOL-WHD | The official record of every completed administrative hearing provided by these regulations shall be maintained and filed under the custody and control of the Chief Administrative Law Judge, or, where the case has been the subject of administrative review, the ARB. | ||||
| 29:29:3.1.1.1.3.3.75.18 | 29 | Labor | V | A | 502 | PART 502—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT (SUSPENDED 6-29-2009) | C | Subpart C—Administrative Proceedings | § 502.47 Certification. | DOL-WHD | Upon receipt of a complaint seeking review of a decision issued pursuant to this part filed in a U.S. District Court, after the administrative remedies have been exhausted, the Chief Administrative Law Judge or, where the case has been the subject of administrative review, the ARB shall promptly index, certify and file with the appropriate U.S. District Court, a full, true, and correct copy of the entire record, including the transcript of proceedings. | ||||
| 46:46:9.0.1.1.3.1.1.1 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.1 Scope of rules in this part. | FMC | [49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 FR 7807, Feb. 17, 1999] | The rules in this part govern procedure before the Federal Maritime Commission, hereinafter referred to as the “Commission,” under the Merchant Marine Act, 1920, Merchant Marine Act, 1936, Shipping Act of 1984, as amended by the Ocean Shipping Reform Act of 1998, Administrative Procedure Act, and related acts, except that subpart R of this part does not apply to proceedings subject to sections 7 and 8 of the Administrative Procedure Act, which are to be governed only by subparts A to Q inclusive, of this part. They shall be construed to secure the just, speedy, and inexpensive determination of every proceeding. To this end, all persons involved in proceedings conducted under the rules of this part shall be required to consider at an early stage of the proceeding whether resort to alternative dispute resolution techniques would be appropriate or useful. [Rule 1.] | |||
| 46:46:9.0.1.1.3.1.1.10 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.10 Waiver of rules in this part. | FMC | [49 FR 44369, Nov. 6, 1984, as amended at 81 FR 93835, Dec. 22, 2016] | Except to the extent that such waiver would be inconsistent with any statute, any of the rules in this part, except §§ 502.11 and 502.221, may be waived by the Commission or the presiding officer in any particular case to prevent undue hardship, manifest injustice, or if the expeditious conduct of business so requires. [Rule 10.] | |||
| 46:46:9.0.1.1.3.1.1.11 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.11 Ex parte communications. | FMC | [49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 64 FR 7807, Feb. 17, 1999; 64 FR 23551, May 3, 1999; 64 FR 33762, June 24, 1999] | (a) No person who is a party to or an agent of a party to any proceeding as defined in § 502.61 or who directly participates in any such proceeding and no interested person outside the Commission shall make or knowingly cause to be made to any Commission member, administrative law judge, or Commission employee who is or may reasonably be expected to be involved in the decisional process of any such proceeding, an ex parte communication relevant to the merits of the proceeding; (b) No Commission member, administrative law judge, or Commission employee who is or may reasonably be expected to be involved in the decisional process of any agency proceeding, shall make or knowingly cause to be made to any interested persons outside the Commission or to any party to the proceeding or its agent or to any direct participant in a proceeding, an ex parte communication relevant to the merits of the proceeding. This prohibition shall not be construed to prevent any action authorized by paragraphs (e), (f) and (g) of this section; (c) “Ex parte communication” means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports or communications regarding purely procedural matters or matters which the Commission or member thereof, administrative law judge, or Commission employee is authorized by law or these rules to dispose of on an ex parte basis; (d) Any Commission member, administrative law judge, or Commission employee who is or may reasonably be expected to be involved in the decisional process of any proceeding who receives, or who makes or knowingly causes to be made, an ex parte communication shall promptly transmit to the Secretary of the Commission: (1) All such written communications; (2) Memoranda stating the substance of all such oral communications; and (3) All written responses and memoranda stating the substance of all oral responses to the materials described in paragraphs (d)(1) and… | |||
| 46:46:9.0.1.1.3.1.1.12 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.12 Applicability of Federal Rules of Civil Procedure. | FMC | [58 FR 27210, May 7, 1993, as amended at 64 FR 7807, Feb. 17, 1999] | In proceedings under this part, for situations which are not covered by a specific Commission rule, the Federal Rules of Civil Procedure will be followed to the extent that they are consistent with sound administrative practice. [Rule 12.] | |||
| 46:46:9.0.1.1.3.1.1.13 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.13 Privacy protection for filings made with the Commission. | FMC | [76 FR 10261, Feb. 24, 2011] | (a) Redacted filings. Unless the Commission or presiding officer orders otherwise, in an electronic or paper filing that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only: (1) The last four digits of the social-security number and taxpayer-identification number; (2) The year of the individual's birth; (3) The minor's initials; and (4) The last four digits of the financial-account number. (b) Exemptions from the redaction requirement. The redaction requirement does not apply to the following: (1) The record of an administrative or agency proceeding; (2) The record of a state-court proceeding; (3) The record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; and (4) A filing covered by paragraph (c) of this section. (c) Filings made under seal. The Commission or presiding officer may order that a filing be made under seal without redaction. The Commission or presiding officer may later unseal the filing or order the person who made the filing to file a redacted version for the public record. (d) Protective orders. For good cause, the Commission or presiding officer may by order in a case: (1) Require redaction of additional information; or (2) Limit or prohibit a nonparty's remote electronic access to a document filed with the Commission. (e) Option for additional unredacted filing under seal. A person making a redacted filing may also file an unredacted copy under seal. The Commission must retain the unredacted copy as part of the record. (f) Option for filing a reference list. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of … | |||
| 46:46:9.0.1.1.3.1.1.14 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.14 Public hearings. | FMC | [49 FR 44369, Nov. 6, 1984. Redesignated at 81 FR 93836, Dec. 22, 2016] | The Commission may call informal public hearings, not required by statute, to be conducted under the rules in this part where applicable, for the purpose of rulemaking or to obtain information necessary or helpful in the determination of its policies or the carrying out of its duties, and may require the attendance of witnesses and the production of evidence to the extent permitted by law. [Rule 141.] | |||
| 46:46:9.0.1.1.3.1.1.2 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.2 Filing of documents. | FMC | [76 FR 10259, Feb. 24, 2011] | (a) Requirement for filing. Documents relating to any matter pending before the Commissioners for decision or to any matter pending before the Commission which is likely to come before the Commissioners for decision, whether or not relating to proceedings governed by this part, must be filed with the Secretary, Federal Maritime Commission. Such documents should not be filed with or separately submitted to the offices of individual Commissioners. Distribution to Commissioners and other agency personnel is handled by the Office of the Secretary to ensure that persons in decision-making and advisory positions receive identical copies of submissions in a uniform and impersonal manner and to avoid the possibility of ex parte communications within the meaning of § 502.11. These considerations apply to informal and oral communications as well, such as requests for expedited consideration. (b) Date and time of filing. (1) Documents may be hand-delivered at the Commission during normal business hours from 8:30 a.m. to 5 p.m., Monday through Friday. (2) Except with respect to initial filing of complaints pursuant to §§ 502.62 and 502.63, and claims pursuant to §§ 502.301 and 502.302, the date of filing shall be either the date on which the pleading, document, or paper is physically delivered to the Commission by a party, the date on which a party certifies it to have been deposited in the mail or delivered to a courier, or the date of e-mail transmission. (c) Place of filing. Except for exhibits filed pursuant to § 502.118(b)(4) and petitions for review of final agency orders served on the Commission pursuant to 28 U.S.C. 2112(a), all documents required to be filed in, and correspondence relating to proceedings governed by this part must be addressed and delivered to “Secretary, Federal Maritime Commission, 800 N. Capitol Street, NW., Washington, DC 20573-0001” or to secretary@fmc.gov. (d) Service of petition for review of Commission order. Petitions for review of final agency orders served on the Commission p… | |||
| 46:46:9.0.1.1.3.1.1.3 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.3 Compliance with rules or orders of Commission. | FMC | [76 FR 10260, Feb. 24, 2011] | Persons named in a rule or order shall notify the Commission during business hours on or before the day on which such rule or order becomes effective whether they have complied therewith, and if so, the manner in which compliance has been made. [Rule 3.] | |||
| 46:46:9.0.1.1.3.1.1.4 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.4 Authentication of rules or orders of Commission. | FMC | [76 FR 10260, Feb. 24, 2011] | All rules or orders issued by the Commission in any proceeding covered by this part shall, unless otherwise specifically provided, be signed by the Secretary of the Commission in the name of the Commission. [Rule 4.] | |||
| 46:46:9.0.1.1.3.1.1.5 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.5 Documents containing confidential materials. | FMC | [80 FR 14318, Mar. 19, 2015, as amended at 81 FR 93835, Dec. 22, 2016] | Except as otherwise provided in the rules of this part, all filings that contain information for which confidential treatment is sought or information previously designated as confidential pursuant to §§ 502.13, 502.141(j)(1)(vii), 502.208, or any other rules of this part, or for which a request for protective order pursuant to § 502.141(j) is pending, are subject to the following requirements: (a) Two versions of filings. Two versions of documents must be filed if a document: (1) Contains information previously designated by the Commission or presiding officer as confidential; or (2) Contains information for which confidential treatment is sought. Except as specified below, both versions must be filed in accordance with the requirements of § 502.2. (i) Confidential version. The confidential filing must include a cover page marked “Confidential-Restricted.” The specific confidential information must be conspicuously and clearly marked on each page, for example by highlighting or bracing. If confidentiality will end on a date certain or upon the occurrence of an event, this must be stated on the cover, e.g., “CONFIDENTIAL UNTIL [DATE],” or “CONFIDENTIAL DURING JUDICIAL REVIEW.” The confidential version of a document may be provided to the presiding officer by email but should not be filed with the Office of the Secretary by email. (ii) Public version. Within three business days of filing a confidential version of a filing, a public version must be filed. The public version must indicate on the cover page and on each affected page “Public Version—confidential materials excluded.” The public version must clearly indicate any information withheld, for example with blackout or braces, and its pagination and depiction of text on each page must be identical to that of the confidential version. For example, the confidential filing may read: “On January 1, 2005, complainant entered into a {25} year lease with respondent for a monthly rent of {$1,000}.” The public version would read: “On January 1, 2005, complai… | |||
| 46:46:9.0.1.1.3.1.1.6 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.6 Verification of documents. | FMC | [76 FR 10261, Feb. 24, 2011, as amended at 81 FR 93835, Dec. 22, 2016] | (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. (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§ 502.143 or § 502.144), such matter may, with like force and effect, be supported, evidenced, established, or proved by the… | |||
| 46:46:9.0.1.1.3.1.1.7 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.7 Documents in foreign languages. | FMC | Every document, exhibit, or other paper written in a language other than English and filed with the Commission or offered in evidence in any proceeding before the Commission under this part or in response to any rule or order of the Commission pursuant to this part, shall be filed or offered in the language in which it is written and shall be accompanied by an English translation thereof duly verified under oath to be an accurate translation. [Rule 7.] | ||||
| 46:46:9.0.1.1.3.1.1.8 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.8 Denial of applications and notice thereof. | FMC | Except in affirming a prior denial or where the denial is self-explanatory, prompt written notice will be given of the denial in whole or in part of any written application, petition, or other request made in connection with any proceeding under this part, such notice to be accompanied by a simple statement of procedural or other grounds for the denial, and of any other or further administrative remedies or recourse applicant may have where the denial is based on procedural grounds. [Rule 8.] | ||||
| 46:46:9.0.1.1.3.1.1.9 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | A | Subpart A—General Information | § 502.9 Suspension, amendment, etc., of rules in this part. | FMC | The rules in this part may, from time to time, be suspended, amended, or revoked, in whole or in part. Notice of any such action will be published in the Federal Register. [Rule 9.] | ||||
| 46:46:9.0.1.1.3.10.1.1 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.141 Duty to disclose; general provisions governing discovery. | FMC | [49 FR 44369, Nov. 6, 1984, as amended at 78 FR 45071, July 26, 2013; 80 FR 57307, Sept. 23, 2015. Redesignated at 81 FR 93836, Dec. 22, 2016] | (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 seven (7) days after an order of intervention is granted, 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 a… | |||
| 46:46:9.0.1.1.3.10.1.10 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.150 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. | FMC | [77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016] | (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 § 502.141 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 § 502.146 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 presid… | |||
| 46:46:9.0.1.1.3.10.1.11 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | §§ 502.151-502.169 [Reserved] | FMC | |||||
| 46:46:9.0.1.1.3.10.1.2 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.142 Persons before whom depositions may be taken. | FMC | [77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016] | (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, … | |||
| 46:46:9.0.1.1.3.10.1.3 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.143 Depositions by oral examination. | FMC | [77 FR 61529, Oct. 10, 2012. Redesignated and amended at 81 FR 93836, Dec. 22, 2016] | (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 § 502.143(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 § 502.144 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 § 502.146 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 … | |||
| 46:46:9.0.1.1.3.10.1.4 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.144 Depositions by written questions. | FMC | [77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016] | (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 § 502.143 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 may be deposed by written questions in accordance with § 502.143(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 res… | |||
| 46:46:9.0.1.1.3.10.1.5 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.145 Interrogatories to parties. | FMC | [77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016] | (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 § 502.141(e)(2). (2) Scope. An interrogatory may relate to any matter that may be inquired into under § 502.141(e) and (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 § 502.141(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 de… | |||
| 46:46:9.0.1.1.3.10.1.6 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.146 Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes. | FMC | [77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016] | (a) In general. A party may serve on any other party a request within the scope of § 502.141(e) and (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 § 502.141(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 … | |||
| 46:46:9.0.1.1.3.10.1.7 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.147 Requests for admission. | FMC | [77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016] | (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 § 502.141(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… | |||
| 46:46:9.0.1.1.3.10.1.8 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.148 Use of discovery procedures directed to Commission staff personnel. | FMC | [77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016] | (a) Discovery procedures described in §§ 502.142 through 502.147, 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.] | |||
| 46:46:9.0.1.1.3.10.1.9 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | J | Subpart J—Disclosures and Discovery | § 502.149 Use of depositions at hearings. | FMC | [77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016] | (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 § 502.149(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 § 502.204 of subpart L 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 § 502.143(b)(6) or § 502.144(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 invol… | |||
| 46:46:9.0.1.1.3.12.1.1 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.201 Applicability and scope. | FMC | (a) The rules in this subpart apply to adjudicatory proceedings conducted under the statutes administered by the Commission involving matters which require determination after notice and opportunity for hearing. Adjudicatory proceedings are formal proceedings commenced upon the filing of a sworn complaint or by Order of the Commission. Such proceedings will be conducted pursuant to the Administrative Procedure Act, 5 U.S.C. 551-559, and the rules in this subpart. (b) The term hearing means a formal adjudicatory proceeding in which evidence is presented orally, or through written statements, or by combination thereof. The term oral hearing means a hearing at which evidence is presented through oral testimony of a witness. [Rule 201]. | ||||
| 46:46:9.0.1.1.3.12.1.10 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.210 Prehearing statements. | FMC | (a) Unless a waiver is granted by the presiding officer, it is the duty of all parties to a proceeding to prepare a statement or statements at a time and in the manner to be established by the presiding officer provided that there has been reasonable opportunity for discovery. To the extent possible, joint statements should be prepared. (b) The prehearing statement must state the name of the party or parties on whose behalf it is presented and briefly set forth the following matters, unless otherwise ordered by the presiding officer: (1) Issues involved in the proceeding. (2) Facts stipulated pursuant to the procedures together with a statement that the party or parties have communicated or conferred in a good faith effort to reach stipulation to the fullest extent possible. (3) Facts in dispute. (4) Witnesses and exhibits by which disputed facts will be litigated. (5) A brief statement of applicable law. (6) The conclusion to be drawn. (7) Suggested time and location of hearing and estimated time required for presentation of the party's or parties' case. (8) Any appropriate comments, suggestions, or information which might assist the parties in preparing for the hearing or otherwise aid in the disposition of the proceeding. (c) The presiding officer may, for good cause shown, permit a party to introduce facts or argue points of law outside the scope of the facts and law outlined in the prehearing statement. Failure to file a prehearing statement, unless waiver has been granted by the presiding officer, may result in dismissal of a party from the proceeding, dismissal of a complaint, judgment against respondents, or imposition of such other sanctions as may be appropriate under the circumstances. (d) Following the submission of prehearing statements, the presiding officer may, upon motion or otherwise, convene a prehearing conference for the purpose of further narrowing issues and limiting the scope of the hearing if, in his or her opinion, the prehearing statements indicate lack of dispute of material… | ||||
| 46:46:9.0.1.1.3.12.1.11 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.211 Notice of time and place of oral hearing; postponement of hearing. | FMC | (a) The notice of an oral hearing will designate the time and place the person or persons who will preside, and the type of decision to be issued. The date or place of a hearing for which notice has been issued may be changed when warranted. Reasonable notice will be given to the parties or their representatives of the time and place of the change thereof, due regard being had for the public interest and the convenience and necessity of the parties or their representatives. Notice may be served by mail, facsimile transmission, or electronic mail. (b) Motions for postponement of any hearing date must be filed in accordance with § 502.104. [Rule 211.] | ||||
| 46:46:9.0.1.1.3.12.1.12 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.212 Exceptions to rulings of presiding officer unnecessary. | FMC | A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, the party doing so need only state the action that it wants the presiding officer to take or that it objects to, along with the grounds for the request or objection. Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made. [Rule 212.] | ||||
| 46:46:9.0.1.1.3.12.1.13 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.213 Official transcript. | FMC | (a) The Commission will designate the official reporter for all hearings. The official transcript of testimony taken, together with any exhibits and any briefs or memoranda of law filed therewith, will be filed with the Commission. Transcripts of testimony will be available in any proceeding under the rules in this part, at actual cost of duplication. (b)(1) Where the Commission does not request daily copy service, any party requesting such service must bear the incremental cost of transcription above the regular copy transcription cost borne by the Commission, in addition to the actual cost of duplication. Where the requesting party applies for and demonstrates that the furnishing of daily copy is indispensable to the protection of a vital right or interest in achieving a fair hearing, the presiding officer in the proceeding in which the application is made will order that daily copy service be provided the requesting party at the actual cost of duplication, with the full cost of transcription being borne by the Commission. (2) In the event a request for daily copy is denied by the presiding officer, the requesting party, in order to obtain daily copy, must pay the cost of transcription over and above that borne by the Commission, i.e., the incremental cost between that paid by the Commission when it requests regular copy and when it requests daily copy. The decision of the presiding officer in this situation is interpreted as falling within the scope of the functions and powers of the presiding officer, as defined in § 502.25(a). (c) Motions made at the hearing to correct the transcript will be acted upon by the presiding officer. Motions made after an oral hearing to correct the record must be filed with the presiding officer within twenty-five (25) days after the last day of hearing or any session thereof, unless otherwise directed by the presiding officer, and must be served on all parties. If no objections are received within ten (10) days after date of service, the transcript will, upon approval of th… | ||||
| 46:46:9.0.1.1.3.12.1.14 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.214 Briefs; requests for findings. | FMC | (a) The presiding officer will determine the time and manner of filing briefs and any enlargement of time. (b) Briefs will be served upon all parties pursuant to subpart H of this part. (c) Unless otherwise ordered by the presiding officer, opening or initial briefs must contain the following matters in separately captioned sections: (1) Introductory section describing the nature and background of the case; (2) Proposed findings of fact in serially numbered paragraphs with reference to exhibit numbers and pages of the transcript; (3) Argument based upon principles of law with appropriate citations of the authorities relied upon; and (4) Conclusions. (d) All briefs must contain a subject index or table of contents with page references and a list of authorities cited. (e) All briefs filed pursuant to this section must ordinarily be limited to eighty (80) pages in length, exclusive of pages containing the table of contents, table of authorities, and certificate of service, unless the presiding officer allows the parties to exceed this limit for good cause shown and upon application filed not later than seven (7) days before the time fixed for filing of such a brief or reply. [Rule 214.] | ||||
| 46:46:9.0.1.1.3.12.1.15 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.215 Requests for enlargement of time for filing briefs. | FMC | Requests for enlargement of time to file briefs must conform to the requirements of § 502.102. [Rule 215.] | ||||
| 46:46:9.0.1.1.3.12.1.16 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.216 Supplementing the record. | FMC | A motion to supplement the record, pursuant to § 502.69, should be filed if submission of evidence is desired after the parties' presentation in a proceeding, but before issuance by the presiding officer of an initial decision. [Rule 216.] | ||||
| 46:46:9.0.1.1.3.12.1.17 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.217 Record of decision. | FMC | The transcript of testimony and exhibits, together with all filings and motions filed in the proceeding, will constitute the exclusive record for decision. [Rule 217.] | ||||
| 46:46:9.0.1.1.3.12.1.2 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.202 Right of parties to present evidence. | FMC | Every party has the right to present its case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. The presiding officer, however, has the right and duty to limit the introduction of evidence and the examination and cross-examination of witnesses when, in his or her judgment, such evidence or examination is irrelevant, immaterial, or unduly repetitious. [Rule 202.] | ||||
| 46:46:9.0.1.1.3.12.1.3 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.203 Burden of proof. | FMC | In all cases governed by the requirements of the Administrative Procedure Act, 5 U.S.C. 556(d), the burden of proof is on the proponent of the motion or the order. [Rule 203.] | ||||
| 46:46:9.0.1.1.3.12.1.4 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.204 Evidence admissible. | FMC | (a) In any proceeding under the rules in this part and in accordance with the Administrative Procedure Act, all evidence which is relevant, material, reliable and probative, and not unduly repetitious or cumulative, will be admissible. All other evidence will be excluded. The presiding officer may consider the Federal Rules of Evidence for guidance. (b) A party who objects to a ruling of the presiding officer rejecting or excluding proffered evidence may make an offer of proof. If the ruling excludes proffered oral testimony, an offer of proof may consist of a statement by counsel of the substance of the evidence that would be adduced, or in the discretion of the presiding officer, testimony of the witness. If the ruling excludes documents offered as evidence or reference to documents or records, the documents or records shall be marked for identification and will constitute the offer of proof. [Rule 204.] | ||||
| 46:46:9.0.1.1.3.12.1.5 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.205 Records in other proceedings. | FMC | Portions of the record of other proceedings may be received in evidence. A true copy of the records sought to be admitted must be presented in the form of an exhibit unless the presiding officer accepts the parties' stipulation that such records may be incorporated by reference. [Rule 205.] | ||||
| 46:46:9.0.1.1.3.12.1.6 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.206 Documents incorporated into the record by reference. | FMC | Any matter contained in a document on file with the Commission that is available to the public may be received in evidence through incorporation by reference without producing such document, provided that the matter so offered is specified in such manner as to be clearly identified, with sufficient particularity, and readily located electronically. [Rule 206.] | ||||
| 46:46:9.0.1.1.3.12.1.7 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.207 Stipulations. | FMC | The parties may, and are encouraged to, stipulate any facts involved in the proceeding and include them in the record with the consent of the presiding officer. A stipulation may be admitted even if all parties do not agree, provided that any party who does not agree to the stipulation has the right to cross-examine and offer rebuttal evidence. [Rule 207.] | ||||
| 46:46:9.0.1.1.3.12.1.8 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.208 Objection to public disclosure of information. | FMC | (a) If any party wishes to present confidential information or upon objection to public disclosure of any information sought to be elicited, the requirements and procedures in § 502.5 will apply. (b) In an oral hearing, the presiding officer may in his or her discretion order that a witness will disclose such information only in the presence of the parties and those designated and authorized by the presiding officer. Any transcript of such testimony will be held confidential to the extent the presiding officer determines. Copies of transcripts will be served only to authorized parties or their representatives or other parties as the presiding officer may designate. (c) Any information given pursuant to this section may be used by the presiding officer or the Commission if deemed necessary to a correct decision in the proceeding. [Rule 208.] | ||||
| 46:46:9.0.1.1.3.12.1.9 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | L | Subpart L—Presentation of Evidence | § 502.209 Prehearing conference. | FMC | (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, the following may be considered: (i) Simplification of the issues; (ii) The necessity or desirability of amendments to the pleadings; (iii) The possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof; (iv) Limitation of the number of witnesses; (v) The procedure to be used at the hearing; (vi) The distribution to the parties prior to the hearing of written testimony and exhibits; (vii) Consolidation of the examination of witnesses by counsel; (viii) Such other matters as may aid in the disposition of the proceeding. (2) Prior to the hearing, the presiding officer may require exchange of exhibits and any other material that may expedite the hearing. The presiding officer will assume the responsibility of accomplishing the purposes of the notice of prehearing conference so far as this may be possible without prejudice to the rights of any party. (3) The presiding officer will rule upon all matters presented for decision, orally upon the record when feasible, or by subsequent ruling in writing. If a party determines that a ruling made orally does not cover fully the issue presented, or is unclear, such party may file a motion requesting a further ruling within ten (10) days after receipt of the transcript. (b) In any proceeding under the rules in this part, the presiding officer hold an informal conference prior to the taking of testimony, or may recess the hearing for such a conference, with a view to carrying out the purposes of this section. (c) At any prehearing conference, consideration may be given to whether the use of alternative dispute resolution would be appropriate or … | ||||
| 46:46:9.0.1.1.3.13.1.1 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.221 Appeal from ruling of presiding officer other than orders of dismissal in whole or in part. | FMC | [81 FR 93839, Dec. 22, 2016] | (a) Rulings of the presiding officer may not be appealed prior to or during the course of the hearing, or subsequent thereto, if the proceeding is still before him or her, except where the presiding officer finds it necessary to allow an appeal to the Commission to prevent substantial delay, expense, or detriment to the public interest, or undue prejudice to a party. (b) Any party seeking to appeal must file a motion for leave to appeal no later than fifteen (15) days after written service or oral notice of the ruling in question, unless the presiding officer, for good cause shown, enlarges or shortens the time. Any such motion must contain the grounds for leave to appeal and the appeal itself. (c) Replies to the motion for leave to appeal and the appeal may be filed within fifteen (15) days after date of service thereof, unless the presiding officer, for good cause shown, enlarges or shortens the time. If the motion is granted, the presiding officer must certify the appeal to the Commission. (d) Unless otherwise provided, the certification of the appeal will not operate as a stay of the proceeding before the presiding officer. (e) The provisions of § 502.10 do not apply to this section. [Rule 221.] | |||
| 46:46:9.0.1.1.3.13.1.10 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.230 Reopening by Commission. | FMC | [81 FR 93839, Dec. 22, 2016] | (a) Reopening by the Commission. After an initial decision by the presiding officer, or in a matter otherwise pending before the Commission, but before issuance of a Commission decision, the Commission may, after petition and reply in conformity with paragraphs (b) and (c) of this section, or upon its own motion, reopen a proceeding for the purpose of taking further evidence. (b) Motion to reopen. A motion to reopen shall be served in conformity with the requirements of subpart H and will set forth the grounds requiring reopening of the proceeding, including material changes of fact or law alleged to have occurred. (c) Reply. Within ten (10) days following service of a motion to reopen, any party may reply to such motion. (d) Remand by the Commission. Nothing contained in this rule precludes the Commission from remanding a proceeding to the presiding officer for the taking of addition evidence or determining points of law. [Rule 230.] | |||
| 46:46:9.0.1.1.3.13.1.2 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.222 [Reserved] | FMC | |||||
| 46:46:9.0.1.1.3.13.1.3 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.223 Decisions—Administrative law judges. | FMC | [64 FR 7810, Feb. 17, 1999] | To the administrative law judges is delegated the authority to make and serve initial or recommended decisions. All initial and recommended decisions will include a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues presented on the record, and the appropriate rule, order, sanction, relief, or denial thereof. Where appropriate, the statement of findings and conclusions should be numbered. Initial decisions should address only those issues necessary to a resolution of the material issues presented on the record. A copy of each decision when issued shall be served on the parties to the proceeding. In proceedings involving overcharge claims, the presiding officer may, where appropriate, require that the carrier publish notice in its tariff of the substance of the decision. This provision shall also apply to decisions issued pursuant to subpart T of this part. [Rule 223.] | |||
| 46:46:9.0.1.1.3.13.1.4 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.224 Separation of functions. | FMC | The separation of functions as required by 5 U.S.C. 554(d) shall be observed in proceedings under subparts A to Q inclusive, of this part. [Rule 224.] | ||||
| 46:46:9.0.1.1.3.13.1.5 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.225 Decisions—Commission. | FMC | [64 FR 7810, Feb. 17, 1999] | All final decisions will include a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues presented on the record, and the appropriate rule, order, sanction, relief, or denial thereof. A copy of each decision when issued shall be served on the parties to the proceeding. This provision shall also apply to decisions issued pursuant to subpart T of this part. [Rule 225.] | |||
| 46:46:9.0.1.1.3.13.1.6 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.226 Decision based on official notice; public documents. | FMC | (a) Official notice may be taken of such matters as might be judicially noticed by the courts, or of technical or scientific facts within the general knowledge of the Commission as an expert body, provided, that where a decision or part thereof rests on the official notice of a material fact not appearing in the evidence in the record, the fact of official notice shall be so stated in the decision, and any party, upon timely request, shall be afforded an opportunity to show the contrary. (b) Whenever there is offered in evidence (in whole or in part) a public document, such as an official report, decision, opinion, or published scientific or economic statistical data issued by any of the executive departments (or their subdivisions), legislative agencies or committees, or administrative agencies of the Federal Government (including Government-owned corporations), or a similar document issued by a state or its agencies, and such document (or part thereof) has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered in evidence as a public document by specifying the document or relevant part thereof. [Rule 226.] | ||||
| 46:46:9.0.1.1.3.13.1.7 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.227 Exceptions to decisions or orders of dismissal of administrative law judge; replies thereto; review of decisions or orders of dismissal by Commission; and judicial review. | FMC | [49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27211, May 7, 1993; 61 FR 66617, Dec. 18, 1996; 64 FR 7810, Feb. 17, 1999; 80 FR 57307, Sept. 23, 2015] | (a)(1) Within twenty-two (22) days after date of service of the initial decision, unless a shorter period is fixed under § 502.103, any party may file a memorandum excepting to any conclusions, findings, or statements contained in such decision, and a brief in support of such memorandum. Such exceptions and brief shall constitute one document, shall indicate with particularity alleged errors, shall indicate transcript page and exhibit number when referring to the record, and shall be served on all parties pursuant to subpart H of this part. (2) Any adverse party may file and serve a reply to such exceptions within twenty-two (22) days after the date of service thereof, which shall contain appropriate transcript and exhibit references. (3) Whenever the officer who presided at the reception of the evidence, or other qualified officer, makes an initial decision, such decision shall become the decision of the Commission thirty (30) days after date of service thereof (and the Secretary shall so notify the parties), unless within such 30-day period, or greater time as enlarged by the Commission for good cause shown, request for review is made in exceptions filed or a determination to review is made by the Commission on its own initiative. (4) A decision or order of dismissal by an administrative law judge shall only be considered final for purposes of judicial review if the party has first sought review by the Commission pursuant to this section. (5) Upon the filing of exceptions to, or review of, an initial decision, such decision shall become inoperative until the Commission determines the matter. (6) Where exceptions are filed to, or the Commission reviews, an initial decision, the Commission, except as it may limit the issues upon notice or by rule, will have all the powers which it would have in making the initial decision. Whenever the Commission shall determine to review an initial decision on its own initiative, notice of such intention shall be served upon the parties. (7) The time periods for filing exc… | |||
| 46:46:9.0.1.1.3.13.1.8 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.228 Request for enlargement of time to file exceptions and replies to exceptions. | FMC | [80 FR 57307, Sept. 23, 2015] | Requests for enlargement of time to file exceptions, and briefs in support of such exceptions, or replies to exceptions, must conform to the applicable provisions of § 502.102. Any enlargement of time granted will automatically extend by the same period, the date for the filing of notice or review by the Commission. [Rule 228.] | |||
| 46:46:9.0.1.1.3.13.1.9 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | M | Subpart M—Decisions; Appeals; Exceptions | § 502.229 Certification of record by presiding or other officer. | FMC | The presiding or other officer shall certify and transmit the entire record to the Commission when (a) exceptions are filed or the time therefor has expired, (b) notice is given by the Commission that the initial decision will be reviewed on its own initiative, or (c) the Commission requires the case to be certified to it for initial decision. [Rule 229.] | ||||
| 46:46:9.0.1.1.3.14.1.1 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | N | Subpart N—Oral Argument; Submission for Final Decision | § 502.241 Oral argument. | FMC | [49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4144, Feb. 10, 1987] | (a) The Commission may hear oral argument either on its own motion or upon the written request of a party. If oral argument before the Commission is desired on exceptions to an initial or recommended decision, or on a motion, petition, or application, a request therefor shall be made in writing. Any party may make such a request irrespective of its filing exceptions under § 502.227. If a brief on exceptions is filed, the request for oral argument shall be incorporated in such brief. Requests for oral argument on any motion, petition, or application shall be made in the motion, petition, or application, or in the reply thereto. If the Commission determines to hear oral argument, a notice will be issued setting forth the order of presentation and the amount of time allotted to each party. (b)(1) Requests for oral argument will be granted or denied in the discretion of the Commission. (2) Parties requesting oral argument shall set forth the specific issues they propose to address at oral argument. (c) Those who appear before the Commission for oral argument shall confine their argument to points of controlling importance raised on exceptions or replies thereto. Where the facts of a case are adequately and accurately dealt with in the initial or recommended decision, parties should, as far as possible, address themselves in argument to the conclusions. (d) Effort should be made by parties taking the same position to agree in advance of the argument upon those persons who are to present their side of the case, and the names of such persons and the amount of time requested should be received by the Commission not later than ten (10) days before the date set for the argument. The fewer the number of persons making the argument the more effectively can the parties' interests be presented in the time allotted. [Rule 241.] | |||
| 46:46:9.0.1.1.3.14.1.2 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | N | Subpart N—Oral Argument; Submission for Final Decision | § 502.242 Submission to Commission for final decision. | FMC | A proceeding will be deemed submitted to the Commission for final decision as follows: (a) If oral argument is had, the date of completion thereof, or if memoranda on points of law are permitted to be filed after argument, the last date of such filing; (b) if oral argument is not had, the last date when exceptions or replies thereto are filed, or if exceptions are not filed, the expiration date for such exceptions; (c) in the case of an initial decision, the date of notice of the Commission's intention to review the decision, if such notice is given. [Rule 242.] | ||||
| 46:46:9.0.1.1.3.14.1.3 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | N | Subpart N—Oral Argument; Submission for Final Decision | § 502.243 Participation of absent Commissioner. | FMC | Any Commissioner who is not present at oral argument and who is otherwise authorized to participate in a decision shall participate in making that decision after reading the transcript of oral argument unless he or she files in writing an election not to participate. [Rule 243.] | ||||
| 46:46:9.0.1.1.3.15.1.1 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | O | Subpart O—Reparation; Attorney Fees | § 502.251 Proof on award of reparation. | FMC | If many shipments or points of origin or destination are involved in a proceeding in which reparation is sought (See § 502.63), the Commission will determine in its decision the issues as to violations, injury to complainant, and right to reparation. If complainant is found entitled to reparation, the parties thereafter will be given an opportunity to agree or make proof respecting the shipments and pecuniary amount of reparation due before the order of the Commission awarding reparation is entered. In such cases, freight bills and other exhibits bearing on the details of all shipments, and the amount of reparation on each, need not be produced at the original hearing unless called for or needed to develop other pertinent facts. [Rule 251.] | ||||
| 46:46:9.0.1.1.3.15.1.2 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | O | Subpart O—Reparation; Attorney Fees | § 502.252 Reparation statements. | FMC | When the Commission finds that reparation is due, but that the amount cannot be ascertained upon the record before it, the complainant shall immediately prepare a statement in accordance with the approved reparation statement in Exhibit No. 1 to this subpart, showing details of the shipments on which reparation is claimed. This statement shall not include any shipments not covered by the findings of the Commission. Complainant shall forward the statement, together with the paid freight bills on the shipments, or true copies thereof, to the respondent or other person who collected the charges for checking and certification as to accuracy. Statements so prepared and certified shall be filed with the Commission for consideration in determining the amount of reparation due. Disputes concerning the accuracy of amounts may be assigned for conference by the Commission, or in its discretion referred for further hearing. [Rule 252.] | ||||
| 46:46:9.0.1.1.3.15.1.3 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | O | Subpart O—Reparation; Attorney Fees | § 502.253 Interest in reparation proceedings. | FMC | [64 FR 7810, Feb. 17, 1999] | Except as to applications for refund or waiver of freight charges under § 502.271 and claims which are settled by agreement of the parties, and absent fraud or misconduct of a party, interest granted on awards of reparation in complaint proceedings instituted under the Shipping Act of 1984 will accrue from the date of injury to the date specified in the Commission order awarding reparation. Compounding will be daily from the date of injury to the date specified in the Commission order awarding reparation. Normally, the date specified within which payment must be made will be fifteen (15) days subsequent to the date of service of the Commission order. Interest shall be computed on the basis of the average monthly secondary market rate on six-month U.S. Treasury bills commencing with the rate for the month that the injury occurred and concluding with the latest available monthly U.S. Treasury bill rate at the date of the Commission order awarding reparation. The monthly secondary market rates on six-month U.S. Treasury bills for the reparation period will be summed up and divided by the number of months for which interest rates are available in the reparation period to determine the average interest rate applicable during the period. [Rule 253.] | |||
| 46:46:9.0.1.1.3.15.1.4 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | O | Subpart O—Reparation; Attorney Fees | § 502.254 Attorney fees in complaint proceedings. | FMC | [81 FR 10518, Mar. 1, 2016] | (a) General. In any complaint proceeding brought under 46 U.S.C. 41301 (sections 11(a)-(b) of the Shipping Act of 1984), the Commission may, upon petition, award the prevailing party reasonable attorney fees. (b) Definitions. Attorney fees means the fair market value of the services of any person permitted to appear and practice before the Commission in accordance with subpart B of this part. Decision means: (1) An initial decision or dismissal order issued by an administrative law judge; (2) A final decision issued by a small claims officer; or (3) A final decision issued by the Commission. (c) Filing petitions for attorney fees. (1) In order to recover attorney fees, the prevailing party must file a petition within 30 days after a decision becomes final. For purposes of this section, a decision is considered final when the time for seeking judicial review has expired or when a court appeal has terminated. (2) The prevailing party must file the petition with either: (i) The administrative law judge or small claims officer, if that official's decision became administratively final under § 502.227(a)(3), § 502.227(c), § 502.304(g), or § 502.318(a); or (ii) The Commission, if the Commission reviewed the decision of the administrative law judge or small claims officer under § 502.227, § 502.304, or § 502.318. (d) Content of petitions. (1) The petition must: (i) Explain why attorney fees should be awarded in the proceeding; (ii) Specify the number of hours claimed by each person representing the prevailing party at each identifiable stage of the proceeding; and (iii) Include supporting evidence of the reasonableness of the hours claimed and the customary rates charged by attorneys and associated legal representatives in the community where the person practices. (2) The petition may request additional compensation, but any such request must be supported by evidence that the customary rates for the hours reasonably expended on the case would result in an unreasonably low fee award. (e) Replies… | |||
| 46:46:9.0.1.1.3.16.1.1 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | P | Subpart P—Reconsideration of Proceedings | § 502.261 Petitions for reconsideration and stay. | FMC | [49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27211, May 7, 1993] | (a) Within thirty (30) days after issuance of a final decision or order by the Commission, any party may file a petition for reconsideration. Such petition shall be limited to 25 pages in length and shall be served in conformity with the requirements of subpart H of this part. A petition will be subject to summary rejection unless it: (1) Specifies that there has been a change in material fact or in applicable law, which change has occurred after issuance of the decision or order; (2) Identifies a substantive error in material fact contained in the decision or order; or (3) Addresses a finding, conclusion or other matter upon which the party has not previously had the opportunity to comment or which was not addressed in the briefs or arguments of any party. Petitions which merely elaborate upon or repeat arguments made prior to the decision or order will not be received. A petition shall be verified if verification of the original pleading is required and shall not operate as a stay of any rule or order of the Commission. (b) A petition for stay of a Commission order which directs the discontinuance of statutory violations will not be received. (c) The provisions of this section are not applicable to decisions issued pursuant to subpart S of this part. [Rule 261.] | |||
| 46:46:9.0.1.1.3.16.1.2 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | P | Subpart P—Reconsideration of Proceedings | § 502.262 Reply to petition for reconsideration or stay. | FMC | [58 FR 27211, May 7, 1993] | Any party may file a reply in opposition to a petition for reconsideration or stay within fifteen (15) days after the date of service of the petition in accordance with § 502.74. The reply shall be limited to 25 pages in length and shall be served in conformity with subpart H of this part. [Rule 262.] | |||
| 46:46:9.0.1.1.3.17.1.1 | 46 | Shipping | IV | A | 502 | PART 502—RULES OF PRACTICE AND PROCEDURE | Q | Subpart Q—Refund or Waiver of Freight Charges | § 502.271 Special docket application for permission to refund or waive freight charges. | FMC | [64 FR 7811, Feb. 17, 1999, as amended at 65 FR 81759, Dec. 27, 2000; 67 FR 39859, June 11, 2002; 70 FR 7669, Feb. 15, 2005; 70 FR 10329, Mar. 3, 2005; 70 FR 44867, Aug. 4, 2005; 81 FR 59144, Aug. 29, 2016; 83 FR 50294, Oct. 5, 2018; 85 FR 72578, Nov. 13, 2020; 88 FR 16897, Mar. 21, 2023] | (a)(1) A common carrier or a shipper may file a special docket application seeking permission for a common carrier or conference to refund or waive collection of a portion of freight charges if there is: (i) An error in the tariff; (ii) An error in failing to publish a new tariff; or (iii) An error in quoting a tariff . (2) Such refund or waiver must not result in discrimination among shippers, ports, or carriers. (b) Such application must be filed within one hundred eighty (180) days from the date of sailing of the vessel from the port at which the cargo was loaded. An application is filed when it is placed in the mail, delivered to a courier, or, if delivered by another method, when it is received by the Commission. Filings by mail or courier must include a certification as to date of mailing or delivery to the courier. (c) Prior to submission of the application for a refund for an error in a tariff or a failure to publish a new tariff, the carrier or conference must publish a new tariff which sets forth the rate on which refund or waiver would be based. (d) Such application must be in accordance with Exhibit 1 to this Subpart and must also comply with the following requirements: (1) Applications must be submitted to the Office of the Secretary, Federal Maritime Commission, Washington, DC 20573-0001. (2) Applications must be submitted in an original and one (1) copy. (3) Applications must be sworn to before a notary public or otherwise verified in accordance with § 502.112. (4) When a rate published in a conference tariff is involved, the carrier or shipper must serve a copy of the application on the conference and so certify in accordance with § 502.117 to that service in the application. A shipper must also make a similar service and certification with respect to the common carrier. (5) Applications must be accompanied by remittance of a $187 filing fee. (e) Any application which does not furnish the information required by this Subpart may be returned to the applicant by the Secretary without pr… |
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title_number INTEGER,
title_name TEXT,
chapter TEXT,
subchapter TEXT,
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