[Federal Register Volume 64, Number 31 (Wednesday, February 17, 1999)]
[Rules and Regulations]
[Pages 7804-7813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3621]
=======================================================================
-----------------------------------------------------------------------
FEDERAL MARITIME COMMISSION
46 CFR Parts 502, 545 and 571
[Docket No. 98-21]
Miscellaneous Amendments to Rules of Practice and Procedure
AGENCY: Federal Maritime Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Maritime Commission is making corrections and
changes to existing regulations to update and improve them, and to
conform them to and implement the Ocean Shipping Reform Act of 1998.
This rule modifies part 502 (Rules of Practice and Procedure) and
redesignates part 571 as part 545 (Interpretations and Statements of
Policy).
DATES: Effective May 1, 1999.
FOR FURTHER INFORMATION CONTACT: Bryant L. VanBrakle, Secretary,
Federal Maritime Commission, 800 North Capitol St., NW., Room 1046,
Washington, DC 20573-0001, (202) 523-5725, E-mail: secretary@fmc.gov.
SUPPLEMENTARY INFORMATION:
The Ocean Shipping Reform Act of 1998 (``OSRA''), Pub. L. 105-258,
112 Stat. 1902, which made numerous changes to the Shipping Act of 1984
(``1984 Act''), Pub. L. 98-237, 98 Stat. 67 (46 U.S.C. app. secs. 1701
through
[[Page 7805]]
1720), was enacted on October 14, 1998, and becomes effective on May 1,
1999. Among other things, OSRA authorizes the Commission to prescribe
implementing rules and regulations. Accordingly, the Federal Maritime
Commission published a notice of proposed rulemaking on December 2,
1998, 63 FR 66512, to redesignate part 571 as part 545 and amend parts
502 and 545 of the Commission's rules.
The Commission received comments in response to the proposed rule
from the National Industrial Transportation Leagues (``NIT League''),
the Council of European and Japanese National Shipowners'' Associations
(``CENSA''), the Maritime Administrative Bar Association (``MABA''),
Fruit Shippers Ltd., and jointly from American President Lines, Ltd.
and APL Co. Pte Ltd (``APL'').
CENSA and NIT League both commented on proposed Sec. 502.67, which
implements the exemption provision in section 16 of the 1984 Act.
Section 16 provides:
``(t)he Commission, upon application or on its own motion, may
by order or rule exempt for the future any class of agreements
between persons subject to this Act or any specified activity of
those persons from any requirement of this Act * * *.''
CENSA objects to the proposed rule because it perceives that by moving
Sec. 502.67 from part 572 to part 502, the Commission has made
exemptions generally available to matters other than agreements. CENSA
claims this goes beyond the Commission's exemption power. It is true
that the Commission's rules have heretofore addressed exemption
procedures only within the agreement provisions currently within part
572. However, section 16 has always authorized the Commission to exempt
persons subject to the 1984 Act from any of its requirements, and the
Commission has indeed granted isolated exemptions from such matters as
tariff filing requirements, when the statutory standards were met. OSRA
did not preclude the application of section 16 to any provision or
requirement of the 1984 Act. OSRA simply changed the standards that
must be met in order to grant an exemption. The new standard requires
that a proposed exemption not result in substantial reduction in
competition or be detrimental to commerce. The proposed rule located
the procedure for requesting an exemption in Sec. 502.67, and that
procedure is applicable to all exemption requests, consistent with our
statutory authority, not only agreement exemption requests.
NIT League also objects to proposed Sec. 502.67. NIT League points
out that the use of the word ``may'' in the first sentence of proposed
Sec. 502.67 could be read to mean that the Commission may decide not to
grant an exemption even if a requested exemption meets the standards of
section 16 of the 1984 Act. NIT League proposes language requiring that
the Commission grant an exemption whenever it finds the standards have
been met. NIT League proposes to change the word ``may'' to ``shall,''
so that the rule would read, ``The Commission * * * shall * * * exempt
* * *.'' However, section 16 does not mandate that the Commission grant
exemptions. It specifically contains the word ``may'' and not the word
``shall,'' thus making clear that the decision whether to grant an
exemption is discretionary. The proposed rule mirrors the 1984 Act, as
amended by OSRA, in this respect. Hence, NIT League's assertion that
the Commission must grant an exemption when it finds a requested
exemption will not result in substantial reduction in competition or be
detrimental to commerce is not consistent with section 16, and the
Commission therefore declines to modify proposed Sec. 502.67.
MABA commented extensively on the proposed rules concerning service
of process, length of briefs, incorporation of the Model Rules of
Professional Conduct, the length and cost of proceedings, and the use
of promissory notes in payment of penalties. MABA strongly objects to
changes proposed to Sec. 502.113 which would allow for a complainant to
effect service when the Secretary is not successful in obtaining
service by mail. MABA claims that the proposed amendment shifts the
burden of service from the Commission to private litigants. However,
the proposed modification would merely allow for service by the
complainant as a viable option. Historically, the Secretary serves
complaints by mail, and will continue to do so. Currently, the
Commission's complaint filing rules require the complaint to specify
the name and address of each respondent. It is necessary for the
complainant to provide the address for each respondent so that the
complaint may be served by mail. Sometimes, however, a respondent
cannot be located at the provided address and the complaint ends up
being returned. At such times, the Secretary works with the complainant
to attempt to locate the respondent, so that service may be obtained.
Although this practice will continue, the proposed amendment will allow
for the possibility of service by the complainant. The Secretary has
not made a practice of effecting personal service and is in no better
position to do so than any complainant. Contrary to MABA's assertions,
the Commission no longer has field offices, and the five area
representatives around the country are not available for the purpose of
serving complaints.
MABA also asserts that the Commission might use its Regulated
Persons Index (RPI) to facilitate personal service. However, parties
regulated by the Commission and listed in the RPI are rarely
unavailable for mail service. The difficulty in serving by mail arises
when the respondent is not regulated by the Commission, or has
relocated its business without informing the Commission, thus rendering
the RPI ineffective in locating a respondent. The language of the final
rule is slightly modified, however, in an attempt to clear up
confusion.
Proposed Secs. 502.221 and 502.227 would limit briefs to an
Administrative Law Judge and to the Commission on exceptions to fifty
(50) pages in length, unless, for good cause shown, the presiding
officer grants a request to exceed the limit. In its comments, MABA
objects to these limits.
With respect to Sec. 502.221, MABA suggests that it is unrealistic
to expect an evidentiary record before an Administrative Law Judge to
be encapsulated in a useful way within fifty pages that adequately
develops legal issues, especially in a proceeding where the case will
be developed on a written record without actual ``hearing.'' MABA also
cites research indicating that other agencies do not impose page
limitations on briefs before the presiding officer following an
evidentiary hearing.
The evidentiary record in proceedings generally is not developed on
the basis of briefs. Evidence is admitted in the form of written or
oral testimony, with transcripts of oral testimony available, and the
admission of documentary evidence. The Commission believes that, in
most cases, lengthy briefs are not required to fully discuss the
issues. It is not necessary to include within briefs evidence already
admitted. However, the proposed rule allows the presiding officer to
permit longer briefs where warranted. In light of MABA's concerns,
however, the final rule expands the page limit for such briefs to
eighty (80) pages. The Commission believes this measure will encourage
efficiency and focus in proceedings which have become increasingly time
consuming and costly.
With respect to Sec. 502.227, MABA believes a page limitation on
briefs to the Commission, is a ``closer question,'' and cites four
other agencies who do
[[Page 7806]]
impose such limitations. They are the National Labor Relations Board,
Occupational Safety and Health Administration, Securities and Exchange
Commission, and Surface Transportation Board. As MABA points out, the
Commission is not limited to identified issues of error, as a court of
appeals would be, when reviewing a matter on exceptions. MABA
recognizes that the Commission is, indeed, the ultimate fact finder in
such instances. In reality, however, when reviewing such matters the
Commission has the developed record before it, including briefs
previously filed with the presiding Administrative Law Judge. We
believe it is unnecessary to retrace an entire proceeding in a brief on
exceptions. Rather, such briefs should focus on the exceptions to the
initial decision. Therefore, in the interest of efficiency and lower
costs of proceedings, the final rule maintains the proposed fifty (50)
page limitation on briefs on exceptions. It should be noted, however,
that the rule provides that parties may request to be allowed to exceed
the limitation for good cause, upon timely application.
MABA strongly supports the proposed incorporation of the American
Bar Association's Model Rules of Professional Conduct into Sec. 502.26,
but requests that the Commission establish a procedure to handle
complaints arising under Secs. 502.26 and 502.30, the latter of which
provides sanctions. As MABA points out, the presiding administrative
law judge has dealt with ethical complaints when they arise in the
course of a proceeding. MABA believes this may be appropriate in some
circumstances, but awkward for the presiding officer and prejudicial to
an attorney's client in other circumstances. MABA avers that the
procedure can also deter a party from making a legitimate ethical
complaint to an administrative law judge. MABA seeks a separate and
impartial procedure to hear ethical complaints. Currently, no party is
barred from bringing violations to the attention of the Commission. As
MABA recognizes, certain questions are appropriate for resolution in
the course of a proceeding by the presiding officer. Should there be a
complaint, however, that the complaining party believes should be
handled separately and independently from a proceeding, a filing,
whether by petition or other written document, should be submitted to
the Commission's Secretary, just as any other filing would be. The
Secretary, in consultation with appropriate Commission officials, will
arrange for consideration of the complaint within the Commission.
MABA also requests clarification that Sec. 502.26 applies to both
private attorneys and Commission attorneys. Neither the current or
proposed Sec. 502.26 differentiates between a Commission and private
attorney, and no clarification in the rule appears warranted.
In a more general comment, MABA encourages the Commission ``to
consider ways of reducing the length and cost of its proceedings,''
citing increasingly costly and time consuming proceedings. MABA
suggests that Administrative Law Judges be given greater power to
prevent unnecessary delay and expense. In addition, MABA recommends the
Commission consider forming a public-private task force or advisory
committee to recommend steps to reduce the length and cost of
Commission proceedings. The Commission recognizes MABA's concerns, but
does not believe an advisory committee, itself a costly undertaking, is
warranted at the present time. The Administrative Law Judges currently
possess authority to manage proceedings efficiently. As MABA
recognizes, the Commission has procedural rules requiring expedited
discovery, and the increasing complexity of proceedings, budget
cutbacks and due process concerns all affect the length and cost of
proceedings. Litigants' attorneys, however, play a major role in
assuring that deadlines in proceedings are met and costs to their
clients are kept down. Ultimately, the cooperation among parties and
their counsel in discovery, a commitment to meet deadlines without
requesting additional time, and minimizing the length and number of
motions and other filings can have more impact on reducing costs than
any rule changes that may be imposed by the Commission. However, it is
believed that the page limitation on briefs and other changes made in
these final rules will help reduce the expense of Commission
proceedings.
Finally, MABA objects to the removal of the provision allowing for
payment of penalties by promissory note, suggesting that the Commission
continue to allow such payment where appropriate. Proposed Sec. 502.605
would still allow the Commission to accept payment by ``other
instrument acceptable to the Commission,'' which could include a
promissory note where appropriate. Generally speaking, however, it is
not the Commission's policy or preference to accept promissory notes,
and therefore adopting MABA's comment may be misleading. Accordingly,
this provision is not changed in the final rule.
Fruit Shippers Ltd. commented that changes should be made to the
definition of common carrier. However, the term is not defined in parts
502 and 545, and the comments are not applicable to this rulemaking
proceeding. The comment will be addressed when the proposed rule in
Docket No. 98-29, Carrier Automated Tariff Systems, 63 FR 70368, is
finalized. APL asked for leave to file a comment late in order to point
out an error in terminology in Sec. 545.1. The nature of the comment,
pointing out an obvious error, requires that it be accepted, even
though filed late, and the error is corrected by replacing the term
``conference'' with the OSRA terminology ``an agreement between or
among ocean common carriers'' in Sec. 545.1.
The rule contains no additional information collection or record
keeping requirements and was not required to be submitted to OMB for
approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., the Chairman of the Federal Maritime Commission has certified to
the Chief Counsel for Advocacy, Small Business Administration, that the
rule will not have a significant impact on a substantial number of
small entities. In its Notice of Proposed Rulemaking, the Commission
stated its intention to certify this rulemaking because the amendments
would either have no effect on small entities, or in the case where the
amendments are likely to impact small entities, the economic impact
will be de minimis. The comments received did not dispute the
Commission's intention to certify, therefore, the certification is
continued.
This regulatory action is not a ``major'' rule under 5 U.S.C.
804(2).
List of Subjects
46 CFR Part 502
Administrative practice and procedure, Claims, Equal access to
justice, Investigations, Lawyers, Maritime carriers, Penalties,
Reporting and recordkeeping requirements.
46 CFR Parts 545 and 571
Antitrust, Maritime carriers.
For the reasons stated in the preamble, the Federal Maritime
Commission amends 46 CFR parts 502, 545 and 571 as set forth below:
[[Page 7807]]
PART 502--RULES OF PRACTICE AND PROCEDURE
1. The authority citation for part 502 is revised to read as
follows:
Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569,
571-596; 12 U.S.C. 1141j(a); 18 U.S.C. 207; 26 U.S.C. 501(c)(3); 28
U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. app. 1114(b), 1705, 1707-
1711, 1713-1716; E.O. 11222 of May 8, 1965 (30 FR 6469); 21 U.S.C.
853a; Pub. L. 105-258; and Pub. L. 88-777 (46 U.S.C. app. 817d,
817e).
2. Amend Sec. 502.1 as follows:
a. Revise the first sentence of Sec. 502.1 to read as set forth
below:
b. Move ``[Rule 1.]'' to the end of the section.
Sec. 502.1 Scope of rules in this part.
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. * * *
3. Amend Sec. 502.2 to read as follows:
a. In the text of paragraph (c) revise ``Sec. 502.11(b)'' to read
``Sec. 502.11.''
b. In paragraph (d) remove ``[Rule 2.]''
c. Add paragraph (e) to read as follows:
Sec. 502.2 Filing of documents; hours; mailing address.
* * * * *
(e) Any pleading, document, writing or other paper submitted for
filing which is rejected because it does not conform to the rules in
this part shall be returned to the sender. [Rule 2.]
4. Amend Sec. 502.11 as follows:
a. Revise section heading to read as set forth below;
b. Remove paragraph (a) and the heading of paragraph (b);
c. Redesignate paragraphs (b)(1) through (b)(7) as paragraphs (a)
through (g).
Sec. 502.11 Ex parte communications.
* * * * *
Sec. 502.12 [Amended]
5. In Sec. 502.12, add ``[Rule 12.]'' to the end of the text.
6. In Sec. 502.21, revise the paragraph heading in paragraph (c) to
read as follows:
Sec. 502.21 Appearance.
* * * * *
(c) Special appearance. * * *
7. Revise Sec. 502.23 to read as follows:
Sec. 502.23 Notice of appearance; substitution and withdrawal of
representative.
(a) Upon filing of a complaint instituting proceedings or filing of
an answer to an order or complaint, the party filing shall notify the
Commission of the name(s) and address(es) of the person or persons who
will represent them in the pending proceeding. Each person who appears
at a hearing shall deliver a written notice of appearance to the
reporter, stating for whom the appearance is made. Such notice shall
indicate whether the representative wishes to be notified of decisions
by telephone, facsimile transmission, or electronic mail. All
appearances shall be noted in the record. Petitions for leave to
intervene shall indicate the name(s) and address(es) of the person or
persons who will represent the intervenor in the pending proceeding if
the petition is granted.
(b) A Notice of Appearance should follow the form set forth in
Exhibit No. 1 to this subpart.
(c) If an attorney or other representative of record is superseded,
there shall be filed a stipulation of substitution signed both by the
attorney(s) or representative(s) and by the party, or a written notice
from the party to the Commission.
(d) If an attorney wishes to withdraw from representing a party,
such attorney shall file an appropriate motion seeking permission to
withdraw and provide appropriate reasons for making the motion. Such
motion will be decided in consideration of the factors and standards
set forth in Rule 1.16 of the American Bar Association's Model Rules of
Professional Conduct and by the courts.
8. Revise Sec. 502.24(b) to read as follows:
Sec. 502.24 Practice before the Commission defined.
* * * * *
(b) The term ``Commission'' as used in this subpart includes any
bureau, division, office, branch, section, or unit of the Federal
Maritime Commission and any officer or employee of such bureau,
division, office, branch, section, or unit. [Rule 24.]
9. Revise Sec. 502.26, to read as follows:
Sec. 502.26 Attorneys at law.
Attorneys at law who are admitted to practice before the Federal
courts or before the courts of any State or Territory of the United
States may practice before the Commission. An attorney must represent
in writing, filed with the Secretary, that he is admitted to practice
and in good standing. An attorney practicing before the Commission is
expected to conform to the standards of conduct set forth in the
American Bar Association's Model Rules of Professional Conduct in
addition to the specific requirements of this chapter. [Rule 26.]
10. In Sec. 502.27(a)(1) correct ``Sec. 503.43(h)'' to read
``Sec. 503.43(g).''
11. Revise Exhibit No. 1 to Subpart B as follows:
Exhibit No. 1 to Subpart B
Federal Maritime Commission
Notice of Appearance
Docket No. ________:
Please enter my appearance in this proceeding as counsel for
________.
I request to be informed of service of the administrative law
judge's initial or recommended decision and of the Commission's
decision in this proceeding by:
[ ] telephone (In the event that I am not available when you call,
appropriate advice left with my office will suffice.)
[ ] facsimile transmission
[ ] electronic mail
----------------------------------------------------------------------
[Name]
----------------------------------------------------------------------
[Address]
----------------------------------------------------------------------
[Telephone No.]
----------------------------------------------------------------------
[Fax No.]
----------------------------------------------------------------------
[E-mail address]
----------------------------------------------------------------------
[Signature]
12. Revise Sec. 502.42 to read as follows:
Sec. 502.42 Bureau of Enforcement.
The Director, Bureau of Enforcement, shall be a party to all
proceedings governed by the rules in this part except that in complaint
proceedings under Sec. 502.62, the Director may become a party only
upon leave to intervene granted pursuant to Sec. 502.72, in rulemaking
proceedings and in proceedings considering petitions the Director may
become a party by designation if the Commission determines that the
circumstances of the proceeding warrant such participation, and the
Director will not ordinarily be a party to small claims proceedings
under Sec. 502.304 and special docket proceedings under Sec. 502.271.
The Director or the Director's representative shall be served with
copies of all papers, pleadings, and documents in every proceeding in
which the Bureau of Enforcement is a party. The Bureau of Enforcement
shall actively participate in any proceeding to which the Director is a
party, to the extent required in the
[[Page 7808]]
public interest, subject to the separation of functions required by
section 5(c) of the Administrative Procedure Act. (See Sec. 502.224).
[Rule 42.]
13. Revise Sec. 502.51 to read as follows:
Sec. 502.51 Initiation of procedure to issue, amend, or repeal a rule.
(a) By petition. Any interested party may file with the Commission
a petition for the issuance, amendment, or repeal of a rule designed to
implement, interpret, or prescribe law, policy, organization,
procedure, or practice requirements of the Commission. The petition
shall set forth the interest of petitioner and the nature of the relief
desired, shall include any facts, views, arguments, and data deemed
relevant by petitioner, and shall be verified. If such petition is for
the amendment or repeal of a rule, it shall be accompanied by proof of
service on all persons, if any, specifically named in such rule, and
shall conform in other aspects to subpart H of this part. Petitions
shall be accompanied by remittance of a $177 filing fee. Replies to
such petition shall conform to the requirements of Sec. 502.74.
(b) By the Commission. The Commission on its own initiative may
initiate the issuance, amendment, or repeal of a rule through notice of
proposed rulemaking or advanced notice of proposed rulemaking. [Rule
51.]
Sec. 502.56 [Amended]
14. In Sec. 502.56, add ``[Rule 56.]'' at the end of the text.
Sec. 502.61 [Amended]
15. In Sec. 502.61, add ``[Rule 61.]'' to the end of paragraph (d).
16. In Sec. 502.62, redesignate paragraph (g) as paragraph (h),
revise redesignated paragraph (h) and add new paragraph (g) to read as
follows:
Sec. 502.62 Complaints and fee.
* * * * *
(g) Complainants desiring to use the discovery provisions of
subpart L must commence discovery at the time the complaint is filed,
pursuant to Sec. 502.201(b).
(h) For special types of cases, see Sec. 502.271 in subpart Q
(Refund or waiver of freight charges); subpart K (Shortened Procedure);
and subpart S (Small Claims). [Rule 62.]
17. In Sec. 502.63, remove paragraph (a), redesignate paragraphs
(b) through (e) as paragraphs (a) through (d), and revise the section
heading to read as follows:
Sec. 502.63 Statute of limitations for reparations.
* * * * *
18. Amend Sec. 502.64 as follows:
a. Add a sentence to the end of paragraph (a) to read as set forth
below;
b. Add ``[Rule 64.]'' to the end of paragraph (d).
Sec. 502.64 Answer to complaint; countercomplaint.
(a) * * *. An answer to the complaint must be verified.
* * * * *
19. Add Sec. 502.67 to read as follows:
Sec. 502.67 Exemption procedures--General.
(a) Authority. The Commission, upon application or on its own
motion, may by order or rule exempt for the future any class of
agreements between persons subject to the Shipping Act of 1984 or any
specified activity of persons subject to the Shipping Act of 1984 from
any requirement of the Shipping Act of 1984 if it finds that the
exemption will not result in substantial reduction in competition or be
detrimental to commerce. The Commission may attach conditions to any
exemption and may, by order, revoke any exemption.
(b) Application for exemption. Any person may petition the
Commission for an exemption or revocation of an exemption of any class
of agreements or an individual agreement or any specified activity
pursuant to section 16 of the Shipping Act of 1984. A petition for
exemption shall state the particular requirement of the Shipping Act of
1984 for which exemption is sought. The petition shall also include a
statement of the reasons why an exemption should be granted or revoked,
shall provide information relevant to any finding required by the
Shipping Act of 1984 and shall comply with Sec. 502.69. Where a
petition for exemption of an individual agreement is made, the
application shall include a copy of the agreement.
(c) Participation by interested persons. No order or rule of
exemption or revocation of exemption may be issued unless opportunity
for hearing has been afforded interested persons and departments and
agencies of the United States.
(d) Federal Register notice. Notice of any proposed exemption or
revocation of exemption, whether upon petition or upon the Commission's
own motion, shall be published in the Federal Register. The notice
shall include when applicable:
(1) A short title for the proposed exemption or the title of the
existing exemption;
(2) The identity of the party proposing the exemption or seeking
revocation;
(3) A concise summary of the agreement or class of agreements or
specified activity for which exemption is sought, or the exemption
which is to be revoked;
(4) A statement that the petition and any accompanying information
are available for inspection in the Commission's offices in Washington,
DC; and
(5) The final date for filing comments regarding the proposal.
[Rule 67.]
Sec. 502.71 [Amended]
20. In Sec. 502.71, add ``[Rule 71.]'' to the end of the text.
21. In Sec. 502.75, revise paragraph (a) to read as follows:
Sec. 502.75 Proceedings involving assessment agreements.
(a) In complaint proceedings involving assessment agreements filed
under section 5(e) of the Shipping Act of 1984, the Notice of Filing of
Complaint and Assignment will specify a date before which the initial
decision will be issued, which date will not be more than eight months
from the date the complaint was filed.
* * * * *
Exhibit 1 to Subpart E [Amended]
22. In Exhibit 1 to Subpart E, remove the third paragraph after the
heading ``Information to Assist in Filing Formal Complaint,'' beginning
with the text ``Under the Shipping Act, 1916 * * *.''
Sec. 502.91 [Amended]
23. In Sec. 502.91, add ``[Rule 91.]'' to the end of paragraph (d).
Sec. 502.92 [Removed and reserved] Exhibit 1 [Removed]
24. In subpart F, remove and reserve Sec. 502.92, and remove
Exhibit 1.
Sec. 502.94 [Amended]
25. In Sec. 502.94, add ``[Rule 94.]'' to the end of paragraph (c).
26. Revise Sec. 502.102 to read as follows:
Sec. 502.102 Enlargement of time to file documents.
(a) Motions for enlargement of time for the filing of any pleading
or other document, or in connection with the procedures of subpart L of
this part, shall set forth the reasons for the motion and be submitted
at least five (5) days before the scheduled date for filing. Except for
good cause shown, failure to meet this time requirement may result in
summary rejection of the request.
(b) Such motions will be granted only under exceptional
circumstances duly demonstrated in the request, and shall conform to
the requirements of Subpart H of this part, except as to service if
they show that the parties have received actual notice of the motion;
and in
[[Page 7809]]
relation to briefs, exceptions, and replies to exceptions, such motions
shall conform to the further provisions of Secs. 502.222 and 502.227.
(c) Upon motion made after the expiration of the scheduled date,
the filing may be permitted where reasonable grounds are found for the
failure to file.
(d) Replies to such motions for enlargement of time shall conform
to the requirements of Sec. 502.74. [Rule 102.]
27. Add two sentences before the last sentence of Sec. 502.104 to
read as follows:
Sec. 502.104 Postponement of hearing.
* * * Such motions must be received, whether orally or in writing,
at least five (5) days before the scheduled date for hearing. Except
for good cause shown, failure to meet this requirement may result in
summary rejection of the request. * * *
28. Revise Sec. 502.105 to read as follows:
Sec. 502.105 Waiver of rules governing enlargements of time and
postponements of hearings.
The Commission, the presiding officer, or the Chief Administrative
Law Judge may waive the requirements of Secs. 502.102 and 502.104 as to
replies and may rule ex parte on such requests. [Rule 105.]
29. In subpart H, revise Sec. 502.111 to read as follows:
Sec. 502.111 Form and appearance of documents filed with Commission.
(a) All papers to be filed under the rules in this part must be
clear and legible, dated, show the docket description and title of the
proceeding, and include the title, if any, and address of the signer.
An original signed in ink must be provided. Text shall appear on only
one side of the paper and must be double spaced except that quotations
must be single spaced and indented. The paper must be strong and
durable, not more than 8\1/2\ inches wide and 12 inches long, with a
left hand margin of 1\1/2\ inches. Documents shall be printed in clear
type, never smaller than 12 point.
(b) Filings by facsimile for purposes of meeting a deadline will
not be accepted unless authorized by the presiding officer or the
Secretary.
(c) Facsimile transmissions of signature pages on filings will be
tentatively accepted for the purpose of meeting filing deadlines
pending receipt of the original signature page within seven working
days. [Rule 111.]
30. Amend Sec. 502.112 as follows:
a. Revise the section heading to read as set forth below;
b. Add ``[Rule 112.]'' to the end of paragraph (c)(2).
Sec. 502.112 Verification of documents.
* * * * *
31. Revise Sec. 502.113 to read as follows:
Sec. 502.113 Service by the Commission.
(a) Complaints filed pursuant to Sec. 502.62, (including any
accompanying discovery requests initiated pursuant to Sec. 502.201(b)),
amendments to complaints (unless otherwise authorized by the presiding
officer pursuant to Sec. 502.70(b)), and complainant's memoranda filed
in shortened procedure cases will be served by the Secretary of the
Commission.
(b) The complainant may also effect proper service, in which case
an affidavit setting forth the method, time and place of service must
be filed with the Secretary within five days following service.
(c) In addition to and accompanying the original of every document
filed with the Commission for service by the Commission, there shall be
a sufficient number of copies for use of the Commission (see
Sec. 502.118) and for service on each party to the proceeding.
(d) The presiding officer may dismiss a complaint that has not been
served within thirty (30) days after the complaint was filed. [Rule
113.]
32. In Sec. 502.114, revise the section heading and paragraph (a)
to read as follows:
Sec. 502.114 Service by parties of pleadings and other documents.
(a) Except as otherwise specifically provided by the rules in this
part, all pleadings, documents, and papers of every kind (except
requests for subpoenas, documents served by the Commission under
Sec. 502.113, and documents submitted at a hearing or prehearing
conference) in proceedings before the Commission under the rules in
this part shall, when tendered to the Commission or the presiding
officer for filing, show that service has been made upon all parties to
the proceeding and upon any other persons required by the rules in this
part to be served. Such service shall be made by delivering one copy to
each party; by hand delivering in person; by mail, properly addressed
with postage prepaid; by courier; or by facsimile transmission if
agreed by both parties prior to service.
* * * * *
Sec. 502.114 [Amended]
33. Amend Sec. 502.114(b) as follows:
a. Revise ``(Rule 53)'' to read ``(Rule 52).''
b. Revise ``(Part 585)'' to read ``(Part 550).''
c. Revise ``13(b)(5) of the Shipping Act of 1984, 46 U.S.C. app.
1712(b)(5) (part 587)'' to read ``13(b)(6) of the Shipping Act of 1984
(part 560).''
34. Revise Sec. 502.116 to read as follows:
Sec. 502.116 Date of service.
The date of service of documents served by the Commission shall be
the date shown in the service stamp thereon. The date of service of
documents served by parties shall be the date when matter served is
deposited in the United States mail, delivered to a courier, delivered
in person, or transmitted by facsimile, as the case may be. In
computing the time from such dates, the provisions of Sec. 502.101
shall apply. [Rule 116.]
35. In Sec. 502.118, revise paragraph (b)(2) to read as follows:
Sec. 502.118 Copies of documents for use of the Commission.
* * * * *
(b) * * *
(2) An original and four copies shall be filed with the Secretary
of prehearing statements required by Sec. 502.95, stipulations under
Sec. 502.162, notices of appearance required by Sec. 502.23, and all
other motions, petitions, or other written communications seeking a
ruling from the presiding administrative law judge.
* * * * *
36. In Sec. 502.119, revise paragraphs (a) and (b) to read as
follows:
Sec. 502.119 Documents containing confidential materials.
* * * * *
(a) Filings shall be accompanied by a transmittal letter which
identifies the filing as ``confidential'' and describes the nature and
extent of the authority for requesting confidential treatment. The
confidential copies shall consist of the complete filing and shall
include a cover page marked ``Confidential-Restricted,'' with the
confidential materials clearly marked on each page.
(b) Whenever a confidential filing is submitted, there must also be
submitted an original and one copy of a public version of the filing.
Such public version shall exclude confidential materials, and shall
indicate on the cover page and on each affected page ``confidential
materials excluded.''
* * * * *
37. Revise Sec. 502.133 to read as follows:
Sec. 502.133 Attendance and mileage fees.
Witnesses summoned by subpena to a hearing or deposition are
entitled to the
[[Page 7810]]
same fees and mileage that are paid to witnesses in courts of the
United States. Fees and mileage shall be paid, upon request, by the
party at whose instance the witness appears. [Rule 133.]
Sec. 502.143 [Amended]
38. In the text of Sec. 502.143 revise ``Sec. 502.133,'' to read
``Sec. 502.113.''
39. In Sec. 502.144,
a. Redesignate the current text as paragraph (a);
b. Revise the section heading to read as set forth below;
c. Revise the last sentence of newly redesignated paragraph (a) to
read as set forth below;
d. Add new paragraph (b) to read as set forth below.
Sec. 502.144 Notice of time and place of hearing; postponement of
hearing
(a) * * * Notice may be served by mail, facsimile transmission, or
electronic mail.
(b) Motions for postponement of any hearing date shall be filed in
accordance with Sec. 502.104. [Rule 144.]
40. In Sec. 502.146, revise paragraph (a) and paragraph (c) to read
as follows:
Sec. 502.146 Commencement of functions of Office of Administrative Law
Judges.
* * * * *
(a) Upon the service by the Commission of a complaint filed
pursuant to Sec. 502.62, or Sec. 502.182, or upon referral under
subpart T of this part; or
* * * * *
(c) Upon forwarding for assignment by the Office of the Secretary
of a special docket application pursuant to Sec. 502.271; or
* * * * *
41. In the first sentence of paragraph (a) of Sec. 502.147 remove
the phrase ``except with regard to that portion of any order involving
the Commission's suspension authority set forth in section 3,
Intercoastal Shipping Act, 1933.''
42. In Sec. 502.147, revise paragraph (b) to read as follows:
Sec. 502.147 Functions and powers.
* * * * *
(b) All of the functions delegated in Subparts A to Q and Subpart T
of this part, inclusive, to the Chief Judge, presiding officer, or
administrative law judge include the functions with respect to hearing,
determining, ordering, certifying, reporting, or otherwise acting as to
any work, business, or matter, pursuant to the provisions of section
105 of Reorganization Plan No. 7 of 1961. [Rule 147.]
43. Amend Sec. 502.201 as follows:
a. Revise paragraph (a) to read as set forth below;
b. Revise the paragraph headings in paragraph (d) and (f) to read
as follows:
Sec. 502.201 General provisions governing discovery.
(a) Applicability. The procedures described in this subpart are
available in all adjudicatory proceedings under the Shipping Act of
1984. Unless otherwise ordered by the presiding officer, the copy
requirements of Sec. 502.118(b)(3)(i) shall be observed.
* * * * *
(d) Duty of the parties to meet or confer. * * *
(f) Conferences by order of the presiding officer. * * *
* * * * *
44. In Sec. 502.221, revise paragraph (f) to read as follows:
Sec. 502.221 Briefs; requests for findings.
* * * * *
(f) All briefs filed pursuant to this section shall 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
five (5) days before the time fixed for filing of such a brief or
reply. [Rule 221.]
45. Revise Sec. 502.223 to read as follows:
Sec. 502.223 Decisions--Administrative law judges.
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. Revise Sec. 502.225 to read as follows:
Sec. 502.225 Decisions--Commission.
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.]
47. Amend Sec. 502.227 as follows:
a. Revise the section heading to read as set forth below;
b. Redesignate paragraphs (a)(4) through (6) as paragraphs (a)(5)
through (7);
c. Add a new paragraph (a)(4) to read as set forth below;
d. Remove ``[Rule 227]'' from paragraph (d);
e. Add new paragraph (e) to read as set forth below.
Sec. 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.
(a) * * *
(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.
* * * * *
(e) All briefs and replies filed pursuant to this section shall
ordinarily be limited to fifty (50) pages in length, exclusive of pages
containing the table of contents, table of authorities, and certificate
of service, unless the Commission allows the parties to exceed this
limit for good cause shown and upon application filed not later than
five (5) days before the time fixed for filing of such a brief or
reply. [Rule 227.]
48. Revise Sec. 502.253 to read as follows:
Sec. 502.253 Interest in reparation proceedings.
Except as to applications for refund or waiver of freight charges
under Sec. 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
[[Page 7811]]
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.]
49. Amend Sec. 502.254 as follows:
a. Revise the first sentence of paragraph (a) to read as set forth
below;
b. Revise paragraph (c)(1)(i) to read as set forth below.
Sec. 502.254 Attorney's fees in reparation proceedings.
(a) Scope. The Commission shall, upon petition, award the
complainant reasonable attorney's fees directly related to obtaining a
reparations award in any complaint proceeding under section 11 of the
Shipping Act of 1984. * * *
(c) * * * (1) * * *
(i) With the presiding officer where the presiding officer's
decision awarding reparations became administratively final pursuant to
Sec. 502.227(a)(3) and Sec. 502.304(g); or
* * * * *
50. Revise subpart Q consisting of Sec. 502.271 to read as follows:
Subpart Q--Refund or Waiver of Freight Charges
Sec. 502.271 Special docket application for permission to refund or
waive freight charges.
(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 Sec. 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 Sec. 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 an $86 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 prejudice to resubmission within the 180-day limitation period.
(f)(1) The Secretary in his discretion shall assign all
applications to either a Special Dockets Officer or the Office of
Administrative Law Judges. Authority to issue decisions under this
subpart is delegated to the assigned Special Dockets Officer or
Administrative Law Judge.
(2) Applicants will be notified as to the assignment of a deciding
official, and the assignment of a special docket number. Formal
proceedings as described in other rules of this part need not be
conducted. The deciding official may, in his or her discretion, require
the submission of additional information.
(g) The deciding official shall issue a decision which, pursuant to
Sec. 501.21 of this chapter, shall become final ten (10) days after
service of such decision, unless the Commission in its discretion
chooses to review such decision within that time, or the applicant
chooses to file exceptions to such decision within that time. [Rule
271.]
Exhibit No. 1 to Subpart Q
Application for Refund or Waiver of Freight Charges Due to Tariff
or Quoting Error
Federal Maritime Commission Special Docket No. ________ [leave
blank].
Amount of Freight Charges to be refunded or waived:
Application of (Name of carrier or shipper) for the benefit of
(Name of person who paid or is responsible for payment of freight
charges).
1. Shipment(s). Here fully describe:
(a) Commodity (according to tariff description).
(b) Number of shipments.
(c) Weight or measurement, container size, and number of
containers of individual shipment, as well as all shipments.
(d)(1) Date(s) of receipt of shipment(s) by the carrier;
(2) Date(s) of sailing(s) (furnish supporting evidence).
(e) Shipper and place of origin.
(f) Consignee, place of destination and routing of shipment(s).
(g) Name of carrier and date shown on bill of lading (furnish
legible copies of bill(s) of lading).
(h) Names of participating ocean carrier(s).
(i) Name(s) of vessel(s) involved in carriage.
(j) Amount of freight charges actually collected (furnish
legible copies of rated bill(s) of lading or freight bill(s), as
appropriate) broken down (i) per shipment, (ii) in the aggregate,
(iii) by whom paid, (iv) who is responsible for payment if
different, and (v) date(s) of collection.
(k) Rate and tariff commodity description applicable at time of
shipment (furnish legible copies of tariff materials).
(l) Rate and commodity description sought to be applied (furnish
legible copies of applicable tariff materials).
(m)(1) Amount of applicable freight charges, per shipment and in
the aggregate;
(2) Amount of freight charges at rate sought to be applied, per
shipment and in the aggregate.
(n) Amount of freight charges sought to be (refunded) (waived),
per shipment and in the aggregate.
2. Furnish docket numbers of other special docket applications
or decided or pending formal proceedings involving the same rate
situations.
3. Fully explain the basis for the application, i.e., the error,
failure to publish, or misquote, showing why the application should
be granted. Furnish affidavits, if appropriate, and legible copies
of all supporting documents. If the error is due to failure to
publish a tariff, specify the date when the carrier and/or
conference intended or agreed to publish a new tariff. If the
application is based on a misquote, the application must include the
affidavit of the person who made the misquote describing the
circumstances surrounding such misquote along with any other
supporting documentary evidence available.
4. Furnish any information or evidence as to whether granting
the application may result in discrimination among shippers, ports
or carriers. List any shipments of other
[[Page 7812]]
shippers of the same commodity which (i) moved via the carrier(s) or
conference involved in this application during the period of time
beginning on the date the intended rate would have become effective
and ending on the day before the effective date of the conforming
tariff; (ii) moved on the same voyage(s) of the vessel(s) carrying
the shipment(s) described in No. 1, above; or (iii), in the case of
a misquote, moved between the date of receipt of shipment(s)
described in No. 1 above, and the date(s) of sailing(s).
(Here set forth Name of Applicant, Signature of Authorized
Person, Typed or Printed Name of Person, Title of Person and Date)
State of , County of . ss:
I,______ , on oath declare that I am ______ of the above-named
applicant, that I have read this application and know its contents,
and that they are true. Subscribed and sworn to before me, a notary
public in and for the State of ____________ , County of
____________, this ______ day of ______ .
(Seal)
----------------------------------------------------------------------
Notary Public
My Commission expires.
CERTIFICATE OF SERVICE (if applicable)
I hereby certify that I have this day served the foregoing
document upon the (insert the conference name if a conference tariff
is involved; or the name of the carrier if the applicant is a
shipper) by delivering a copy (insert means by which copy
delivered).
Dated in (insert city, county, state) this ______ day of ______.
(signature)
For:
CERTIFICATE OF MAILING
I certify that the date shown below is the date of mailing (or
date of delivery to courier) of the original and one (1) copy of
this application to the Secretary, Federal Maritime Commission,
Washington, DC, 20573-0001.
Dated at ______, this ______ day of ______ .
(Signature) .
For.
Sec. 502.301 [Amended]
51. In Sec. 502.301, remove paragraph (b) and redesignate
paragraphs (c) and (d) as paragraphs (b) and (c).
Sec. 502.302 [Amended]
52. In Sec. 502.302, remove paragraph (b) and redesignate paragraph
(c) as paragraph (b).
53. Revise Sec. 502.305 to read as follows:
Sec. 502.305 Applicability of other rules of this part.
Except Secs. 502.253 and 502.254 or as otherwise specifically
provided in this subpart, the rules in subparts A through Q, inclusive,
of this part do not apply to situations covered by this subpart. [Rule
305.]
Exhibit 1 to Subpart S [Amended]
54. In Exhibit 1 to subpart S, in the section entitled Information
to Assist in Filing Informal Complaints, remove the third paragraph
beginning with the text ``Under the Shipping Act, 1916 * * *.''
55. Revise Sec. 502.321 to read as follows:
Sec. 502.321 Applicability of other rules of this part.
Except as specifically provided in this part, rules in subparts A
through Q, inclusive, of this part do not apply to situations covered
by this subpart. [Rule 321.]
Sec. 502.401 [Amended]
56. Amend Sec. 502.401 as follows:
a. Amend paragraph (b) by removing ``Shipping Act, 1916, 46 U.S.C.
app. 801 et seq.;'' and removing ``the Intercoastal Shipping Act 1933,
46 U.S.C. app. 843 et seq.''
b. Remove paragraph (d), and redesignate paragraph (e) as paragraph
(d).
57. Amend Sec. 502.501 as follows:
a. Add new paragraph (d)(2)(vi) to read as set forth below;
b. Add new paragraph (e)(3) to read as set forth below;
c. Revise the first sentence of paragraph (f)(2) to read as set
forth below;
d. Add ``[Rule 501.]'' to the end of paragraph (g).
Sec. 502.501 General provisions.
* * * * *
(d) * * *
(2) * * *
(vi) For purposes of paragraph (e)(3) of this section, a small
entity as defined in 5 U.S.C. 601.
(e) Standards for awards. (1) * * *
(2) * * *
(3) In an adversary adjudication arising from a Commission action
to enforce a party's compliance with a statutory or regulatory
requirement, if the demand by the Commission is substantially in excess
of the decision of the presiding officer and is unreasonable under the
facts and circumstances of the case, the presiding officer shall award
to the party fees and other expenses related to defending against the
excessive demand, unless the party has committed a willful violation of
law or otherwise acted in bad faith, or special circumstances make an
award unjust.
* * * * *
(f) Allowable fees and expenses. (1) * * *
(2) No award for the fee of an attorney or agent under this subpart
may exceed $125 per hour. * * *
Sec. 502.502 [Amended]
58. In Sec. 502.502, add ``[Rule 502.]'' to the end of paragraph
(d)(3).
Sec. 502.503 [Amended]
59. In Sec. 502.503, add ``[Rule 503.]'' to the end of paragraph
(j)(2).
60. Revise Sec. 502.601 to read as follows:
Sec. 502.601 Purpose and scope.
The purpose of this subpart is to implement the statutory
provisions of section 19 of the Merchant Marine Act, 1920, section 13
of the Shipping Act of 1984, and sections 2(c) and 3(c) of Pub. L. 89-
777 by establishing rules and regulations governing the compromise,
assessment, settlement and collection of civil penalties arising under
certain designated provisions of the Merchant Marine Act , 1920, the
Shipping Act of 1984, Public Law 89-777, and/or any order, rule, or
regulation (except for procedural rules and regulations contained in
this part) issued or made by the Commission in the exercise of its
powers, duties and functions under those statutes. [Rule 601.]
61. Amend Sec. 502.602 as follows:
a. Revise paragraph (h) to read as set forth below;
b. Add ``[Rule 602.]'' to the end of paragraph (i).
Sec. 502.602 Definitions
* * * * *
(h) Violation includes any violation of sections 19(6)(d), 19(7)(d)
and 19(11) of the Merchant Marine Act, 1920; any provision of the
Shipping Act of 1984; sections 2 and 3 of Pub. L. 89-777; and/or any
order, rule or regulation (except for procedural rules and regulations
contained in this part) issued or made by the Commission in the
exercise of its powers, duties and functions under the Merchant Marine
Act, 1920, the Shipping Act of 1984, or Pub. L. 89-777.
* * * * *
Sec. 502.603 [Amended]
62. In Sec. 502.603, add ``[Rule 603.]'' to the end of paragraph
(c).
63. Amend Sec. 502.604 as follows:
a. Revise the first sentence of paragraph (b) to read as follows:
Sec. 502.604 Compromise of penalties: Relation to assessment
proceedings.
* * * * *
(b) Notice. When the Commission considers it appropriate to afford
an opportunity for the compromise of a civil penalty, it will, except
when otherwise authorized by the Commission, or where circumstances
render it unnecessary, send a Notice and Demand Letter (``NDL'') to the
[[Page 7813]]
respondent, by registered or certified mail, or by other means
reasonably calculated to give notice. * * *
b. Add ``[Rule 604.]'' to the end of paragraph (g).
64. Amend Sec. 502.605 as follows:
a. Revise paragraph (a) to read as follows:
b. Add ``[Rule 605.]'' to the end of paragraph (c).
Sec. 502.605 Payment of penalty; Method; default.
(a) Method. Payment of penalties by the respondent is to be made by
bank cashier's check or other instrument acceptable to the Commission.
* * * * *
PART 571--INTERPRETATIONS AND STATEMENTS OF POLICY [REDESIGATED AS
PART 545]
1. Redesignate part 571 as part 545.
PART 545--[REDESIGNATED FROM PART 571 AND AMENDED]
2. The authority citation for redesignated part 545 continues to
read as follows:
Authority: 5 U.S.C. 553, 46 U.S.C. app. 1706, 1707, 1709, and
1716.
3. In redesignated Sec. 545.1, revise paragraph (a) to read as
follows:
Sec. 545.1 Interpretation of Shipping Act of 1984--Refusal to
negotiate with shippers' associations.
(a) Section 8(c) of the Shipping Act of 1984 (``1984 Act'')
authorizes ocean common carriers and conferences to enter into a
service contract with a shippers' association, subject to the
requirements of the 1984 Act. Section 10(b)(10) of the 1984 Act
prohibits carriers from unreasonably refusing to deal or negotiate.
Section 7(a)(2) of the 1984 Act exempts from the antitrust laws any
activity within the scope of that Act, undertaken with a reasonable
basis to conclude that it is pursuant to a filed and effective
agreement.
* * * * *
By the Commission.
Bryant L. VanBrakle,
Secretary.
[FR Doc. 99-3621 Filed 2-16-99; 8:45 am]
BILLING CODE 6730-01-P
