[Federal Register Volume 59, Number 117 (Monday, June 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14914]


[[Page Unknown]]

[Federal Register: June 20, 1994]


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FEDERAL MARITIME COMMISSION

46 CFR Part 502

[Docket No. 93-24]

 

Amendment to Rules of Practice and Procedure

AGENCY: Federal Maritime Commission.

ACTION: Proposed rule; withdrawal.

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SUMMARY: The Federal Maritime Commission, after reviewing the comments 
received and evaluating the concerns that led to the Proposed Rule, is 
withdrawing the Rule and is discontinuing the proceeding. The 
Commission concludes that the rule is not needed at this time. The 
Commission will continue to address specific service of process 
situations on an ad hoc basis.

DATES: This action is effective June 20, 1994.

FOR FURTHER INFORMATION CONTACT:
Joseph C. Polking, Secretary, Federal Maritime Commission, 800 North 
Capitol Street, N.W., Washington, D.C. 20573-0001, (202) 523-5725.

SUPPLEMENTARY INFORMATION: By Notice of Proposed Rulemaking (``NPR'' or 
``Proposed Rule'') published in the Federal Register, 58 FR 68841-68843 
(Dec. 29, 1993), the Commission proposed to amend Rule 113, 46 CFR 
502.113 of the Commission's Rules of Practice and Procedure to make the 
complainant in a private action responsible for service of its 
complaint when the Commission has been unsuccessful, for any reason, in 
effectuating service by certified or registered mail.
    The only comment in response to the NPR was filed by the Maritime 
Administrative Bar Association (``MABA''), which opposes the Proposed 
Rule.

Background

    Under Rule 113, the Commission is presently charged with the 
responsibility for service of private complaints, amendments to 
complaints, and complainant's memoranda filed in shortened procedure 
cases, while Rule 114, 46 CFR 502.114, requires that parties serve all 
other pleadings.\1\ In administering Rule 113, the Commission has 
experienced occasions where complaints and other pleadings were 
returned by the United States Postal Service because the respondent 
refused delivery, an incorrect address was provided by the complainant, 
or the respondent had moved leaving no forwarding address. In such 
circumstances, the Commission has resorted to alternative methods of 
service such as utilizing a Commission investigator to personally find 
and serve the respondent, or serving the secretary of state pursuant to 
state law. The NPR noted that the Proposed Rule would conform the 
Commission's Rules regarding service more closely to the Federal Rules 
of Civil Procedure.
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    \1\Section 502.114 provides that all pleadings, documents, and 
papers (except requests for subpoenas) in proceedings before the 
Commission shall, when tendered to the Commission or the presiding 
officer for filing, show that service has been made upon all parties 
to the proceeding, and upon any other persons required to be served.
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Comments

    In opposing the Proposed Rule, MABA argues that the Shipping Act, 
1916, 46 U.S.C. app. 821, and the Shipping Act of 1984, 46 U.S.C. app. 
1710(b) (``Shipping Acts''), prohibit the Commission from shifting the 
burden of ``personally serving private complaints from the Commission 
to private parties.'' Comments at 1-2. MABA's position is that only the 
Commission can serve the complaint, and that a ``rule is which service 
of the complaint is performed by someone other than the Commission does 
not comply with the clear statutory command that the Commission `shall 
furnish' a copy of the complaint.'' Id. at 2. Regarding the 
Commission's interest in bringing Rule 113 in conformity with the 
Federal Rules of Civil Procedure, MABA contends that the Federal Rules 
``are not underlain by a similar statutory obligation that the district 
court `furnish a copy of the complaint' to a defendant.''Id. at 3. 
Finally, MABA cites differences between district court and FMC 
proceedings, and ``* * * practical reasons why the Commission should 
not abandon its statutory responsibility to serve a complaint.'' Id. at 
3.
    MABA argues that the Shipping Acts' statutory provisions governing 
complaints mean what they say and that the Commission is compelled to 
serve a respondent on behalf of a private complainant. It contends that 
because the Commission has national jurisdiction, field offices, and an 
extensive regulated persons index, it is also in a better position to 
personally serve the respondent. MABA believes that the Proposed Rule 
would place the burden of personal service on small companies, thereby 
acting as a possible barrier to the prosecution of claims before the 
agency, and exacerbating whatever service problems now exist.

Conclusion

    Upon a reevaluation of the concerns that prompted this proposal, 
the Commission has decided not to proceed to a final rule. Any actual 
service of process difficulties in a specific case will be addressed on 
an ad hoc basis.
    Therefore, it is ordered, That the Proposed Rule is withdrawn and 
this proceeding is discontinued.

    By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 94-14914 Filed 6-17-94; 8:45 am]
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