[Federal Register Volume 64, Number 44 (Monday, March 8, 1999)]
[Rules and Regulations]
[Pages 11236-11244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5364]
[[Page 11235]]
_______________________________________________________________________
Part VI
Federal Maritime Commission
_______________________________________________________________________
46 CFR Parts 535 and 572
Ocean Common Carrier and Marine Terminal Operator Agreements Subject to
the Shipping Act of 1984; Final Rule
Federal Register / Vol. 64, No. 44 / Monday, March 8, 1999 / Rules
and Regulations
[[Page 11236]]
FEDERAL MARITIME COMMISSION
46 CFR Parts 535 and 572
[Docket No. 98-26]
Ocean Common Carrier and Marine Terminal Operator Agreements
Subject to the Shipping Act of 1984
AGENCY: Federal Maritime Commission.
ACTION: Final rule.
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SUMMARY: The Federal Maritime Commission is amending its regulations
governing agreements among ocean common carriers and marine terminal
operators to reflect changes made to the Shipping Act of 1984 by the
recently enacted Ocean Shipping Reform Act of 1998, Pub. L. 105-258. In
accordance with that Act, the Commission is proposing to establish new
rules for ocean carrier agreements regarding carriers' service
contracts with shippers, amend the scope of marine terminal agreements
subject to the Act, establish rules for agreements on freight forwarder
compensation, reduce the mandatory notice period for carriers'
independent action on tariff rates, and make other conforming changes.
The Commission is also deleting much of its format requirements for
filed agreements and making other technical amendments to the filing
rules for clarity and administrative efficiency.
DATES: Effective May 1, 1999.
FOR FURTHER INFORMATION CONTACT:
Thomas Panebianco, General Counsel, Federal Maritime Commission, 800
North Capitol Street, NW., Washington, DC 20573-0001, (202) 523-5740
Florence Carr, Director, Bureau of Economics and Agreement Analysis,
Federal Maritime Commission, 800 North Capitol Street, NW., Washington,
DC 20573-0001, (202) 523-5787
SUPPLEMENTARY INFORMATION:
Background
On December 15, 1998, the Commission published in the Federal
Register (63 FR 69034) a proposed rule in this proceeding to bring its
rules for ocean common carrier and marine terminal operator agreements
into conformity with the Ocean Shipping Reform Act, Pub. L. 105-258,
112 Stat. 1902, (``OSRA''), and the Coast Guard Authorization Act of
1998, 1999 and 2000, Pub. L. 105-383, 112 Stat. 3411. These recently
enacted statutes make several changes to the Federal Maritime
Commission's (``FMC'' or ``Commission'') authorities and
responsibilities under the Shipping Act of 1984, 46 U.S.C. app. 1701 et
seq. (``1984 Act''). At the same time, the Commission proposed to amend
its rules to eliminate certain unnecessary formal requirements and make
other clarifications and changes.
Comments in this proceeding were filed by: Fruit Shippers Ltd.;
Port of Philadelphia Marine Terminal Association, Inc.; China Ocean
Shipping (Group) Company (``COSCO''); P&O Nedlloyd Ltd. (``P&ON'');
American Institute for Shippers'' Associations, Inc. (``AISA''); Japan-
United States Eastbound Freight Conference and its Member Lines
(``JUEFC''); Ocean Carrier Working Group Agreement (``Carrier Group'');
National Industrial Transportation League (``NITL''); Croatia Line;
Council of European & Japanese National Shipowners'' Associations
(``CENSA''); Sea-Land Service, Inc.; and American President Lines, Ltd.
and APL Co. Pte. Ltd. (collectively, ``APL'').
The Final Rule
The final rule redesignates the Commission's agreement rules,
formerly 46 CFR part 572, as part 535, and makes changes to its
authority citations to reflect OSRA's passage.
The following discussion first covers the four issues in the
proposed rule that generated the most attention from commenters: (1)
Proposed reporting requirements; (2) changes regarding service
contracts; (3) changes in agreement form; and (4) a revised definition
of ocean common carrier. Following those matters is a discussion of the
remainder of the rule changes and other matters raised by the
commenters.
Proposed Reporting Requirements
The Commission proposed to adopt a new reporting requirement for
ocean common carriers to aid in implementing OSRA's new prohibitions in
sections 10(c)(7-8), barring discrimination against ocean
transportation intermediaries and shippers' associations based on
status. The proposal would have required each member of an agreement to
provide summary statistics on numbers of service contract ``requests,''
``denials,'' and ``approvals,'' tallied by class of shipper.
Several commenters, including APL, Sea-Land, COSCO, JUEFC, and the
Carrier Group object strongly to the Commission's proposed reporting
requirements for service contracting activity. These commenters
characterized the proposal as excessively burdensome or intrusive; P&O
Nedlloyd estimates the annual cost of such data collection at $2
million. Sea-Land asserts that the proposed reporting categories, i.e.,
the terms ``requested,'' ``adopted,'' or ``denied,'' have no meaning in
the context of the actual marketplace of contract negotiations. NITL
echoes many of these sentiments, using examples of negotiating
situations that cannot easily be characterized as ``requests'' or
``denials'' under the rule. NITL is concerned that the reporting
requirements might limit flexibility in carriers' contracting
processes. Sea-Land and other carrier commenters suggest that the
proposed reporting requirements are outside the scope of the
Commission's authority, or they have no valid regulatory purpose,
inasmuch as they reach wholly individual contracting activities not
within the scope of the new sections 10(c)(7-8).
AISA supports the proposed reporting requirement, suggesting that
it will be minimally intrusive, and will aid the Commission in carrying
out its responsibilities under section 10(b) (barring, among other
things, unreasonable refusals to deal) as well as section 10(c)(7-8).
AISA states that under the 1984 Act, it has been able to detect when
shippers' associations have been discriminated against by conferences,
and has sought ``marketplace alternatives to remedy such
discrimination,'' using, among other things, its ``me-too'' rights to
obtain competitive contracts. However, AISA notes that, with the
absence of me-too contract rights for similarly situated shippers and
the confidentiality of service contracts and agreement contract
guidelines, its ability to protect itself from discrimination will be
compromised. It calls the proposed reporting ``prudent,'' ``a good
minimum,'' and a ``first step'' for administering the new statutory
protections for intermediaries and shippers' associations.
The carriers' sweeping legal arguments that the reporting
requirement exceeds the Commission's authority are unconvincing.
Inasmuch as the information sought is reasonably related to the
Commission's oversight responsibilities under the Act, it can
defensibly be compelled by the agency under section 15 of the Shipping
Act.
More persuasive, however, are many of the commenters' explanations
that the proposed categories of reporting do not comport with the
market realities of shipping sales practices and commercial inquiries
and negotiations. After considering the examples set forth in NITL's
and the carriers' comments, we believe that the proposed reporting
would generate a large quantity of data of questionable utility.
Shippers often
[[Page 11237]]
may make inquiries of, and explore negotiations with, a number of
carriers (with regard to both contract and tariff rates) before making
final transportation arrangements. In this environment, the proposed
rule would seem likely to lead to ambiguous tallies reflecting
inquiries, quotes, offers, or counteroffers.
AISA is correct that the Commission must engage in active policing
if the new nondiscrimination provisions of the Act are to be given
effect, as the Commission will be the only body that can compare and
analyze terms of otherwise confidential contracts. However, the
Commission's monitoring and enforcement resources will be better spent
investigating or analyzing specific allegations or complaints about
particular instances of status-based discrimination, rather than
laboring over questionable market-wide statistics. Thus, the reporting
provision of the proposed rule has not been finalized.
Proposed Amendments Regarding Service Contracts
The proposed rule contained provisions implementing new
restrictions and requirements for carrier agreements and service
contracting, as set forth in the new section 5(c) of the Shipping Act.
That section states:
Ocean common carrier agreements. An ocean common carrier
agreement may not--
(1) prohibit or restrict a member or members of the agreement
from engaging in negotiations for service contracts with 1 or more
shippers;
(2) require a member or members of the agreement to disclose a
negotiation on a service contract, or the terms and conditions of a
service contract, other than those terms and conditions required to
be published under section 8(c)(3) of this Act; or
(3) adopt mandatory rules or requirements affecting the right of
an agreement member or agreement members to negotiate and enter into
service contracts.
An agreement may provide authority to adopt voluntary guidelines
relating to the terms and procedures of an agreement member's or
agreement members' service contracts if the guidelines explicitly
state the right of the members of the agreement to not follow these
guidelines. These agreement guidelines shall be confidentially
submitted to the Commission.
The proposed rule included a proposed Sec. 535.802(a-b) indicating
that the new sections 5(c)(1-2) (prohibiting restrictions on members'
negotiations and requirements for members to disclose contract
negotiations and terms) applied to enforceable and unenforceable
agreements. It contained a definition of voluntary guidelines which
limited them to ``contract terms a carrier or carriers may include in
the texts of their individual contracts; or the procedures that a
carrier or carriers may follow in negotiating, modifying, or
terminating contracts with shipper customers.'' The proposed rule also
would have barred guidelines that contained commitments, policies, or
procedures for notification or pre-clearance of proposed service
contract terms with other carriers or agreement officials, or
imposition or acceptance of any liability or sanction whatsoever for
non-compliance with contract terms.
The proposed Sec. 535.802 is supported by AISA and NITL. NITL says
it ``believes that the proposed rules generally comport with the
provisions and policies of the statute, and in general correctly
implement the important new restrictions imposed on collective carrier
action by OSRA.'' NITL at 3. NITL suggests that the proposed section
barring guidelines for auditing and pre-clearing contracts be amended
to include the catch-all phrase: ``and any other commitment, policy, or
procedure that would have a similar effect.''
The proposal is strenuously objected to by the Carrier Group, APL,
Sea-Land, JUEFC, P&ON, and CENSA. APL states that the proposed
Sec. 535.802(a) and (b) are ``overbroad,'' because they ``forbid
carriers from reaching a consensus concerning service contracts or
their negotiations which restrict negotiations or require disclosure.''
APL at 1. APL asserts that carriers have a right to enter into
``lawful, independent, parallel courses of conduct with respect to
service contracts.'' Under OSRA, according to APL, ``carriers may not
adopt rules affecting a carrier's rights to negotiate or enter into a
service contract,'' but carriers can ``discuss[] and adopt[]
consciously parallel action in service contract practices.'' Id. at 1-
2.
APL suggests that carriers must be able to offer multi-carrier
service undertakings; to do that, carriers must have extensive
voluntary discussions and agreements regulating that activity. APL
urges that the Commission adopt the draft rule set forth in the Carrier
Group's comments.
The Carrier Group states that the proposed regulations are
inconsistent with OSRA, and that the proposed Sec. 535.802(d) (which
would limit voluntary guidelines to procedures between shippers and
carriers, not among carriers) is in direct conflict with section 5(c)
of the Act. The Carrier Group suggests that the Commission cannot place
any limitation on the scope of voluntary guidelines. The only
limitation on voluntary guidelines' content, according to the Carrier
Group, is that they must in some way relate to the terms and procedures
of service contracting; referring to Black's definition of ``related
to'' and Supreme Court cases, the carriers assert that guidelines must
``stand in some relation; have bearing or concern; pertain; refer; (or)
bring into association with or connection with'' service contracts.
The Carrier Group states that ``the Commission's position that any
type of voluntary guidelines or procedures is contrary to the
disclosure requirements in section 5(c) is unsupported'' and contrary
to the legislative history. The Carrier Group cites the following
passage from the Report of the Senate Committee on Commerce, Science,
and Transportation on the version of OSRA reported out of that
committee:
The provisions in new section 5(b)(9) do not extend to the
discussion, agreement and adoption of voluntary guidelines by
agreement members concerning their negotiation and use of service
contracts. Thus, nothing in this Act is intended to preclude
agreement members from promulgating voluntary guidelines relating to
the terms and procedures of individual service contracts, as long as
those guidelines make clear that there is no penalty associated with
the failure of a member to follow any such guideline.
S. Rep. 105-61, 105th Cong. 1st Sess. 21.
Sea-Land states that the authority to enter into voluntary
guidelines is ``clear and unambiguous, and does not exclude any subject
matter from its scope.'' Sea-Land at 1-2.
JUEFC makes similar points, stating, ``the plain wording indicates
that if what is adopted is ``mandatory'' it is banned, and that if what
is adopted is ``voluntary,'' it is allowed.'' JUEFC at 2. JUEFC
suggests that carriers could agree to a system of sanctions for failure
to adhere to service contract guidelines, as long as the sanctions were
denoted as voluntary. JUEFC suggests that any issues regarding what may
or may not be permissible guidelines ``should be reserved for
resolution in specific cases.'' Id. at 3.
In light of the comments, the Commission has determined not to
adopt the proposed rule regarding service contracts and voluntary
guidelines. Instead, the Commission is adopting a final rule covering
agreement restrictions on service contracting and voluntary guidelines
that follows the language of OSRA, affording the carriers more
flexibility than under the proposed rule.
No objections were raised to the proposed Sec. 535.803, which is
included in the final rule. It tracks the new statute's mandate that
carriers may not
[[Page 11238]]
agree to limit freight forwarder compensation to less than 1.25 percent
of charges, and must be allowed to take independent action on freight
forwarder compensation on not more than five days' notice.
Proposed Changes Regarding Form of Agreements
The Commission proposed to eliminate many of the form and manner
requirements for agreements set forth in subpart D. While this change
was not mandated by OSRA, the Commission suggested that requirements
for filing highly structured, tariff-type agreements seemed
inconsistent with OSRA's focus on the marketplace and emphasis on
commercial flexibility.
Reaction to the proposal to eliminate the form requirements for
agreements was varied. APL is the sole carrier expressly in favor of
the move, stating:
We commend the Commission for removing its prior requirements
for a uniform format for filed agreements. This will cure the
anomalous situation in which carriers and others subject to the act
entered into agreements which were commercially and legally
appropriate, but then had to be rewritten in the prescribed format
for the regulatory act of filing.
* * * * *
However, we share the concern of TSA, JUEFC, ANERA and others
that any new enforcement activity by the Commission based on novel
and unpublished standards as to what does or does not constitute an
agreement which is properly interstitial to a filed agreement should
await another rulemaking.
APL at 2. APL recognizes that the Commission's regulations, recodified
at 46 CFR 535.407, provide specific guidance as to the content of filed
agreements. APL is ``encouraged by the fact that these standards remain
unchanged by the proposed rule, and we do not think that the
Commission's elimination of the formatting requirement itself changes
any of the standards of completeness by which agreements filing is to
be governed.'' Id.
Other carrier commenters, however, objected strongly to the
proposed move. Sea-Land explains:
Sea-Land would not oppose changes in the agreement form and
manner requirements if they resulted in increased flexibility or
decreased burdens. What this Proposed Rule has done, however, is
generate great concern that, whether intended or not, this
rulemaking could create enormous uncertainty and potential
regulatory infractions for what has been accepted agreement filing
practice and conduct that has existed without a problem for well
over a decade.
Sea-Land at 4.
P&ON, JUEFC, the Carrier Group, and CENSA also suggest that the
deletion of form requirements would change the standards for the
content of agreements. The Carrier Group states that ``we believe the
true purpose * * * is that elimination of the form and manner
requirements is, in fact, intended to require the parties to slot
charter agreements to file their actual operational/administrative
agreements rather than an agreement in `FMC format.' '' Carrier Group
at 13. This, according to the Carrier Group, would ``replace one set of
uncertainties with another.'' Carrier Group at 14. Various carrier
commenters suggest that when carriers are involved in ongoing
cooperative working arrangements, they need to enter into various
detailed agreements to establish the actual working particulars of the
partnerships. According to the commenters, these so-called
``operational'' agreements often contain sensitive or confidential
business information, are revised frequently, and generally are not
filed with the Commission.
The Carrier Group asserts that the issue of operational agreements
is related to the proposed deletion of form requirements:
[O]perational/administrative agreements contain a myriad of
provisions necessary for the parties to carry out the authority
contained in a slot charter agreement filed with the Commission.
Such provisions include, but are not limited to, slot charter hire,
financial accounting, terminals to be used at each port, the name of
the contact person for each party at each port, the type and size of
containers to be accepted, * * * etc. Most, if not all, of these
provisions are of no concern to the Commission. They have little or
no anti-competitive impact. Yet, the Commission's proposed rule
would require that all such provisions be publicly filed, and
amended whenever changed.
Carrier Group at 16.
The Carrier Group does not explain specifically why it believes the
content standards have changed. JUEFC states, however, that ``(b)y
removing the list of required elements from (part) 572, this could
affect future and existing agreements, including those agreements under
challenge today, by prohibiting carriers from defending their
agreements based on the existing regulations.'' JUEFC at 9.
APL's assessment--that elimination of the form requirements does
not affect standards for content--is accurate. The deletion of the form
provisions, such as ordering of provisions, page numbering, and use of
appendices, does not have any impact on the issue of whether particular
operational or administrative matters need to be filed with the
Commission. The fact that particular provisions are required to be set
forth in a fixed order does not provide carriers with a comprehensive
list of particulars that must be filed in agreements, nor otherwise
contribute to the certainty or clarity of agreement content
requirements.\1\
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\1\ The form requirements do not purport to be an exhaustive
list of required content; indeed they do just the opposite. The
current 46 CFR 572.403(b)(5) (which states that every agreement must
have an Article 5 providing a summary of the agreement authority)
states, in part:
To the extent that the summary provided does not represent the
full arrangement between the parties, additional articles or
appendices of the parties' own designation and subsequent to these
enumerated articles will be required to provide the specification of
the authority to be exercised and the mechanics of that exercise.
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Agreement content is controlled by sections of the Act and
regulations that have remained unchanged. Ocean common carriers are
required under section 5 of the 1984 Act to file a true copy of any
agreement with respect to an activity described in section 4, unless
such agreement falls within one of the narrow exceptions or exemptions
set forth in the Act or the Commission's rules. The Commission's rules
require that filed agreements be ``complete,'' ``in detail,''
``clear,'' ``definite,'' and ``specific.'' 46 CFR 572.103(g) and
572.407(a). The issue of routine administrative or operational matters
is addressed in an exception in 46 CFR Sec. 572.407(c) (which is left
unchanged), which states:
Further specific agreements or understandings which are
established pursuant to express enabling authority in an agreement
are considered interstitial implementation and are permitted without
further filing under section 5 of the Act only if the further
agreement concerns routine operational or administrative matters,
including the establishment of tariff rates, rules, and regulations.
The Commission has determined to adopt the approach urged by APL.
First, it is proceeding at this time with the elimination of agreement
form requirements. This step has no substantive effect on the content
requirements for agreements. Indeed, even with form requirements
eliminated, nothing bars carriers from continuing to structure their
agreements as they have done under the old rules.
Second, the Commission has determined, in the face of a request
from the nearly-unanimous carrier community, to institute a subsequent
rulemaking on the issue of content of filed agreements. The carrier
commenters apparently seek far more specific requirements as to what
matters do or do not have to be filed. The
[[Page 11239]]
Commission's rules, according to the commenters, should provide
protections for confidential business information, provide maximum
flexibility for carriers to modify cooperative arrangements without
overly burdensome filing requirements or waiting periods, and possibly
include guidance tailored for different types of agreements. These
prospective issues would appear to warrant a further public airing and
Commission review.
Therefore, Sec. 535.402 is amended as follows. Sections 535.402(a-
b) (paper size, margins, title page) are modified. A revised
Sec. 535.402(d) clarifies that agreements are to be signed by each
individual contracting party or its designated agent, as opposed to a
single official signing on behalf of the group as a whole. Inasmuch as
agreements should represent the true understanding of each party, it
does not appear unreasonable that the assent of each individual party
should be indicated by signature. The Carrier Group and JUEFC object
that this requirement may be burdensome. This does not appear correct,
however, as each agreement party can, if it wishes, select the same
agent for signature purposes. A revised Sec. 535.402(d), permitting
faxed or photocopied signatures, will also minimize any administrative
delay.
The ordering and pagination requirements in Secs. 535.402(e) and
403 are almost entirely removed. Agreements must either include or be
accompanied by a table of contents, and by information such as contact
names, addresses, and specific geographic scope involved. While the
Commission sought to eliminate as many formalities as possible, these
requirements are necessary to the expeditious processing and oversight
of the agreement, and are retained in the final rule.
Section 535.404 is revised to delete the requirement that
conference-specific agreement language be ordered in a particular
fashion. However, the content requirements, which track section 5 of
the 1984 Act's provisions, are largely retained.
The Carrier Group suggests that the use of the ``revised pages''
format for modifications, as proposed in Sec. 535.405, is ``not
consistent with how carriers necessarily structure their commercial
agreements.'' No alternative approach is suggested by the group,
however. Therefore, the revised page format has been retained in the
final rule, as it appears from experience to be the most efficient and
expedient way of processing amendments. If carriers wish to take an
alternative approach, they can seek a waiver of the requirement
pursuant to Sec. 535.406. We would also again note, that the
elimination of the form requirements implicitly provides carriers more
flexibility to amend their understandings by filing additional
agreement pages or sections, rather than revised language. Mandatory
republication is eliminated, replaced with a new Sec. 535.405(e),
providing that the Commission may mandate republication when it is
deemed necessary to maintain the clarity of an agreement. In addition,
the waiting period exemption for miscellaneous amendments, set forth in
Sec. 535.309, is amended to remove specific form requirements.
Proposed Revised Definition of Ocean Common Carrier
The Commission proposed an amended definition of ``ocean common
carrier'' to resolve uncertainty generated by the 1984 Act's definition
(which simply is ``a vessel-operating common carrier'') and clarify the
regulatory dividing line between ocean common carriers and non-vessel-
operating common carriers (``NVOCCs'').
Croatia Line objects to the proposed definition of ``ocean common
carrier.'' Among other things, Croatia Line represents that the
Commission provided inadequate notice by including this issue in a
short-notice OSRA rulemaking. Both Croatia Line and CENSA suggest that
the definition should be broadened to include a vessel operator that
provides service to the U.S. pursuant to a transshipment arrangement,
even if the carrier only operates the foreign-to-foreign leg of the
service.
The Commission believes that, given the brevity of the comment
period in this proceeding and the paucity of comments received on this
issue, it would be useful to provide an additional opportunity for
interested parties to comment. The Commission would also benefit from
more time to consider the merits of this issue. A separate notice
seeking additional comments in a further rulemaking proceeding will be
issued shortly. \2\
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\2\ Croatia Line incorrectly asserts that the Commission is
proposing a change in policy. As explained in the proposed rule, the
proposed definition is a codification of the Commission's
longstanding, but uncodified, policy. That the Commission has taken
no enforcement action against Croatia Line in connection with its
recently filed agreements is not an indication of a proposed policy
shift. Rather, the Commission is seeking to ensure that it had
provided the maximum opportunity for notice and comment on its
longstanding policy in a rulemaking context before considering
specific enforcement action against any one carrier. In deferring
the issue to a separate proceeding, the Commission is in no way
adopting or endorsing Croatia Line's interpretation of the law or
its characterization of its own status, but rather is seeking to be
as procedurally fair and inclusive as possible.
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Other Proposed Changes
Redesignated Sec. 535.102 is amended to reflect that marine
terminal agreements are no longer limited to solely international
commerce.
The definition of ``common carrier'' in Sec. 535.104(f) is amended
to reflect changes made in the 1984 Act by section 424(d) of the Coast
Guard Authorization Act. That act inserted a qualified exception in the
definition for certain vessels carrying perishable agricultural
commodities.
The definition of ``conference agreement,'' in redesignated
Sec. 535.104(g), is changed to clarify that the term (and the rule
sections that apply it, such as the mandatory independent action
requirements) extends only to ocean common carrier conferences, and not
to marine terminal conferences, which are defined elsewhere in this
part. The definition is also changed to eliminate two elements that do
not appear to correspond with the statutory text: (1) The requirement
that, to be a conference, carriers must agree to collective
administrative affairs, and (2) the statement that carriers may have a
common tariff and must participate in some tariff.
The Carrier Group states that there is no statutory need to change
the definition in the regulations of ``conference agreement,'' and
opposes the proposed definition, saying that it could create
``unintended results.'' Carrier Group at 24. The definition does need
to be changed, however, to comport with OSRA. Under the new Act,
agreements other than conferences can enter into service contracts. The
members of these agreements must, as a matter of course, agree to fix
and adhere to those service contract rates that they have in common.
Under the old definition (which said ``conference agreement means an
agreement * * * which provides for: (1) The fixing of and adherence to
uniform rates, charges * * *'') an agreement such as a vessel sharing
agreement that offered joint service contracts would seem to be
classified as a conference, undermining Congress's intentions.
Therefore, the definition was amended to make clear that conferences
provided for the fixing of and adherence to tariff (not service
contract) rates.
The Carrier Group appears to object to removing the references to
``utiliz(ing) a common tariff'' from the current definition. However,
the deleted clause appeared to add nothing to the old definition,
insofar as it said that conference carriers ``may'' (but do not
[[Page 11240]]
have to) use a common tariff, but must participate in some tariff.
While this seems to be an accurate synopsis of the Act's tariff
publication rule, it does not appear to be an integral component of the
definition of ``conference.'' The revised definition will not, as the
Carrier Group suggests without elaboration, subject other carrier
agreements to various statutory requirements set forth in section 5(b)
of the Act. Id.
The definition of ``effective agreement'' in redesignated
Sec. 535.104(j) is changed to remove references to the Shipping Act,
1916, and the definition of ``information form'' in paragraph (m) is
amended to clarify that it extends to some types of agreement
modifications. ``Marine terminal operator'' is redefined in paragraph
(q) to accord with the new definition in OSRA, and the definition of
NVOCC is removed.
OSRA's changes regarding jurisdiction over marine terminal
operators are also reflected in redesignated Sec. 535.201, the list of
agreements subject to the Act. Also in that section, the reference to
cooperative working agreements with non-vessel-operating common
carriers, is deleted in accordance with OSRA. Also, references to NVOCC
and freight forwarder agreements are removed from the non-subject
agreements section, redesignated Sec. 535.202(f) and (g).
The exemption provisions in redesignated Sec. 535.301 are changed
to comport with the new law's more liberal standard. The exemption
procedures are being moved to a general exemption section in the
Commission's Rules of Practice and Procedure, 46 CFR part 502.
In the marine terminal agreements exemption, redesignated
Sec. 535.307, the definition of ``marine terminal conference'' in
paragraph (b) is amended to reflect that such agreements do not have to
involve solely international commerce. Also, the extraneous references
to collective administrative affairs and tariff filing are removed (as
with the definition of ``conference agreement'' in redesignated
Sec. 535.104(g)). In the marine terminal services exemption in
redesignated Sec. 535.310, a definition of marine terminal services is
incorporated in paragraph (a), and paragraph (a)(2), which excepts
previously filed agreements from the exemption, is removed.
Redesignated Sec. 535.501(a) is amended, and a new Sec. 535.503(b)
is added to make clear that agreement modifications that expand the
geographic scope or change the class designation of the underlying
agreement must be accompanied by an appropriate information form. At
NITL's suggestion, the reference in Sec. 535.502(a)(5) to ``regulation
or discussion of service contracts'' is changed to ``discussion or
agreement on service contracts,'' to more closely track the text of
OSRA. Also, redesignated Sec. 535.706(c)(1) is amended to accord with
OSRA's changed tariff requirements.
The mandatory provisions for independent action for conferences in
redesignated Sec. 535.801 are changed to reflect that shortened notice
period, from ten to five days. The rules are amended to reflect the
statutory change that conferences must allow independent action on all
rates and service items, not just those required to be included in
tariffs. That is, if a conference fixes a rate on a commodity exempt
from tariff publication, for example, waste paper, it must allow
members to take independent action on the waste paper rates. If the
conference publishes a waste paper rate in its tariff (it does not have
to, but it can do so voluntarily), then it must publish the member's IA
waste paper rates as well. Section 535.801(i), a transitional provision
that applied to the 90-day period immediately after the IA rules were
adopted, is deleted.
In its comments, the Port of Philadelphia seeks confirmation of its
view of the relationship between the Commission's agreement rules and
its regulations for marine terminal operator schedules. The port's
observations are correct, as discussed in more detail in the final rule
in Docket No. 98-27.
P&ON suggests that the Commission broaden the exception to the 45-
day waiting period when new parties are added to pre-existing
agreements. It also suggests that a new process be implemented to
effect name changes in multiple agreements. Both of these suggestions
could have some merit, and will be noticed for comment in a subsequent
rulemaking proceeding.
The Carrier Group recommends that the Commission take this
opportunity to eliminate its current Class A reporting requirements for
high market share rate agreements. However, that reporting requirement
(adopted less than three years ago) provides information that is
indispensable for the Commission's ongoing oversight of potentially
substantially anticompetitive agreements, pursuant to the 6(g)
standard. Any modifications in the current agreement monitoring program
based on changed market conditions will be considered only after an
opportunity to evaluate the competitive effects of OSRA's regulatory
changes.
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 proposed
changes affect only ocean common carriers, marine terminal operators,
and passenger vessel operators, entities the Commission has determined
do not come under the programs and policies mandated by the Small
Business Regulatory Enforcement Fairness Act. As no commenter refuted
this determination, the certification remains unchanged.
The Commission has received Office of Management and Budget (OMB)
approval for the collection of this information required in this part.
Section 530.991 displays the control numbers assigned by OMB to
information collection requirements of the Commission in this part by
the pursuant to the Paperwork Reduction Act of 1995, as amended. In
accordance with that Act, agencies are required to display a currently
valid control number. In this regard, the valid control number for this
collection of information is 3072-0045.
This regulatory action is not a ``major rule'' under 5 U.S.C.
804(2).
List of Subjects in 46 CFR Parts 535 and 572
Administrative practice and procedure; Maritime carriers; Reporting
and recordkeeping requirements.
Therefore, for the reasons set forth above, part 572, subchapter C
of Title 46, Code of Federal Regulations, is redesignated and amended
as follows:
PART 572--AGREEMENTS BY OCEAN COMMON CARRIERS AND OTHER PERSONS
SUBJECT TO THE SHIPPING ACT OF 1984 [REDESIGNATED AS PART 535 AND
AMENDED]
1. The authority citation for part 572 [redesignated as part 535]
is amended to read as follows:
Authority: 5 U.S.C. 553, 46 U.S.C. app. 1701-1707, 1709-1710,
1712 and 1714-1717, Pub. L. 104-88, 109 Stat. 803.
2. Redesignate part 572 as part 535 of subchapter B, chapter IV of
46 CFR.
3. Revise redesignated Sec. 535.101 to read as follows:
[[Page 11241]]
Sec. 535.101 Authority.
The rules in this part are issued pursuant to the authority of
section 4 of the Administrative Procedure Act (5 U.S.C. 553), sections
2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 15, 16, 17 and 19 of the Shipping Act
of 1984 (``the Act''), and the Ocean Shipping Reform Act of 1998, Pub.
L. 104-88, 109 Stat. 803.
Sec. 535.102 [Amended]
4. Amend redesignated Sec. 535.102 to remove the parenthetical
phrase ``(to the extent the agreements involve ocean transportation in
the foreign commerce of the United States).''
5. Amend redesignated Sec. 535.103 to add paragraph (h) to read as
follows:
Sec. 535.103 Policies.
* * * * *
(h) In order to promote competitive and efficient transportation
and a greater reliance on the marketplace, the Act places limits on
carriers' agreements regarding service contracts. Carriers may not
enter into an agreement to prohibit or restrict members from engaging
in contract negotiations, may not require members to disclose service
contract negotiations or terms and conditions (other than those
required to be published), and may not adopt mandatory rules or
requirements affecting the right of an agreement member or agreement
members to negotiate and enter into contracts. However, agreement
members may adopt voluntary guidelines covering the terms and
procedures of members' contracts.
6. Amend redesignated Sec. 535.104 as follows: paragraphs (f), (g),
(j), (m) and (q) are revised, paragraph (u) is removed, paragraphs (v),
(w), (x), (y), (z), (aa), (bb) and (cc) are redesignated (u), (v), (w),
(x), (y), (z), (aa) and (bb), paragraph (dd) is redesignated (cc) and
revised, paragraph (ee) is redesignated (dd), redesignated paragraph
(dd) is revised, paragraphs (ff), (gg), (hh), (ii), (jj), and (kk) are
redesignated (ee), (ff), (gg), (hh), (ii) and (jj), as follows:
Sec. 535.104 Definitions.
* * * * *
(f) Common carrier means a person holding itself out to the general
public to provide transportation by water of passengers or cargo
between the United States and a foreign country for compensation that:
(1) Assumes responsibility for the transportation from the port or
point of receipt to the port or point of destination; and
(2) Utilizes, for all or part of that transportation, a vessel
operating on the high seas or the Great Lakes between a port in the
United States and a port in a foreign country, except that the term
does not include a common carrier engaged in ocean transportation by
ferry boat, ocean tramp, or chemical parcel tanker, or by a vessel when
primarily engaged in the carriage of perishable agricultural
commodities:
(i) If the common carrier and the owner of those commodities are
wholly owned, directly or indirectly, by a person primarily engaged in
the marketing and distribution of those commodities; and
(ii) Only with respect to those commodities.
(g) Conference agreement means an agreement between or among two or
more ocean common carriers which provides for the fixing of and
adherence to uniform tariff rates, charges, practices and conditions of
service relating to the receipt, carriage, handling and/or delivery of
passengers or cargo for all members. The term does not include joint
service, pooling, sailing, space charter, or transshipment agreements.
* * * * *
(j) Effective agreement means an agreement effective under the Act.
* * * * *
(m) Information form means the form containing economic information
which must accompany the filing of certain kinds of agreements and
agreement modifications.
* * * * *
(q) Marine terminal operator means a person engaged in the United
States in the business of furnishing wharfage, dock, warehouse, or
other terminal facilities in connection with a common carrier, or in
connection with a common carrier and a water carrier subject to
subchapter II of chapter 135 of Title 49 U.S.C. This term does not
include shippers or consignees who exclusively furnish marine terminal
facilities or services in connection with tendering or receiving
proprietary cargo from a common carrier or water carrier.
* * * * *
(cc) Service contract means a written contract, other than a bill
of lading or a receipt, between one or more shippers and an individual
ocean common carrier or an agreement between or among ocean common
carriers in which the shipper or shippers make a commitment to provide
a certain volume or portion of cargo over a fixed time period, and the
ocean common carrier or the agreement commits to a certain rate or rate
schedule and a defined service level--such as assured space, transit
time, port rotation, or similar service features. The contract may also
specify provisions in the event of nonperformance on the part of any
party.
(dd) Shipper means:
(1) A cargo owner;
(2) The person for whose account the ocean transportation is
provided;
(3) The person to whom delivery is to be made;
(4) A shippers' association; or
(5) A non-vessel-operating common carrier (i.e., a common carrier
that does not operate the vessels by which the ocean transportation is
provided and is a shipper in its relationship with an ocean common
carrier) that accepts responsibility for payment of all charges
applicable under the tariff or service contract.
* * * * *
7. Amend redesignated Sec. 535.201 to revise paragraphs (a)(5),
(a)(6), (a)(7) and (b) to read as follows:
Sec. 535.201 Subject agreements.
(a) * * *
(5) Engage in exclusive, preferential, or cooperative working
arrangements among themselves or with one or more marine terminal
operators;
(6) Control, regulate, or prevent competition in international
ocean transportation; or
(7) Discuss and agree on any matter related to service contracts.
(b) Marine terminal operator agreements. This part applies to
agreements among marine terminal operators and among one or more marine
terminal operators and one or more ocean carriers to:
(1) Discuss, fix, or regulate rates or other conditions of service;
or
(2) Engage in exclusive, preferential, or cooperative working
arrangements, to the extent that such agreements involve ocean
transportation in the foreign commerce of the United States.
8. Amend redesignated Sec. 535.202 to revise paragraphs (d) and (e)
and to remove paragraphs (f) and (g) to read as follows:
Sec. 535.202 Non-subject agreements.
* * * * *
(d) Any agreement among common carriers to establish, operate, or
maintain a marine terminal in the United States; and
(e) Any agreement among marine terminal operators which exclusively
and solely involves transportation in the interstate commerce of the
United States.
9. Amend redesignated Sec. 535.301 to revise paragraphs (a) and
(c), to remove paragraphs (d) and (e), and to redesignate paragraph (f)
as paragraph (d) to read as follows:
[[Page 11242]]
Sec. 535.301 Subject agreements.
(a) Authority. The Commission, upon application or its own motion,
may by order or rule exempt for the future any class of agreements
between persons subject to the Act from any requirement of the Act if
it finds that the exemption will not result in substantial reduction in
competition or be detrimental to commerce.
* * * * *
(c) Application for exemption. Applications for exemptions shall
conform to the general filing requirements for exemptions set forth at
Sec. 502.67 of this title.
* * * * *
10. Amend redesignated Sec. 535.307 to revise paragraph (b) to read
as follows:
Sec. 535.307 Marine terminal agreements---exemption.
* * * * *
(b) Marine terminal conference agreement means an agreement between
or among two or more marine terminal operators and/or ocean common
carriers for the conduct or facilitation of marine terminal operations
which provides for the fixing of and adherence to uniform maritime
terminal rates, charges, practices and conditions of service relating
to the receipt, handling, and/or delivery of passengers or cargo for
all members.
* * * * *
11. Amend redesignated Sec. 535.309 to revise paragraphs (a)(2) to
read as follows:
Sec. 535.309 Miscellaneous modifications to agreements--exemptions.
(a) * * *
(2) Any modification to the following:
(i) Parties to the agreement (limited to conference agreements,
voluntary ratemaking agreements having no other anticompetitive
authority (e.g., pooling authority or capacity reduction authority),
and discussion agreements among passenger vessel operating common
carriers which are open to all ocean common carriers operating
passenger vessels of a class defined in the agreements and which do not
contain ratemaking, pooling, joint service, sailing or space chartering
authority).
(ii) Officials of the agreement and delegations of authority.
(iii) Neutral body policing (limited to the description of neutral
body authority and procedures related thereto).
* * * * *
12. Amend redesignated Sec. 535.310 to revise paragraph (a) to read
as follows:
Sec. 535.310 Marine terminal services agreements--exemptions.
(a) Marine terminal services agreement means an agreement,
contract, understanding, arrangement or association, written or oral
(including any modification, cancellation or appendix) between a marine
terminal operator and an ocean common carrier that applies to marine
terminal services, including checking; dockage; free time; handling;
heavy lift; loading and unloading; terminal storage; usage; wharfage;
and wharf demurrage and including any marine terminal facilities which
may be provided incidentally to such marine terminal services) that are
provided to and paid for by an ocean common carrier. The term ``marine
terminal services agreement'' does not include any agreement which
conveys to the involved carrier any rights to operate any marine
terminal facility by means of a lease, license, permit, assignment,
land rental, or similar other arrangement for the use of marine
terminal facilities or property.
* * * * *
13. Amend redesignated Sec. 535.402 to revise paragraphs (a), (b)
introductory text, (d) and (e) and remove paragraphs (f) and (g) to
read as follows:
Sec. 535.402 Form of agreements.
* * * * *
(a) Agreements shall be clearly and legibly written. Agreements in
a language other than English shall be accompanied by an English
translation.
(b) Every agreement shall include or be accompanied by a title page
indicating:
* * * * *
(d) Each agreement and/or modification filed will be signed in the
original by an official or authorized representative of each of the
parties and shall indicate the typewritten full name of the signing
party and his or her position, including organizational affiliation.
Faxed or photocopied signatures will be accepted if replaced with an
original signature as soon as practicable before the effective date.
(e) Every agreement shall include or be accompanied by a Table of
Contents providing for the location of all agreement provisions.
14. Revise redesignated Sec. 535.403 to read as follows:
Sec. 535.403 Agreement provisions.
If the following information (necessary for the expeditious
processing of the agreement filing) does not appear fully in the text
of the agreement, it shall be indicated in an attachment or appendix to
the agreement, or on the title page:
(a) Details regarding parties. Indicate the full legal name of each
party, including any FMC-assigned agreement number associated with that
name; and the address of its principal office (to the exclusion of the
address of any agent or representative not an employee of the
participating carrier or association).
(b) Geographic scope of the agreement. State the ports or port
ranges to which the agreement applies and any inland points or areas to
which it also applies with respect to the exercise of the collective
activities contemplated and authorized in the agreement.
(c) Officials of the agreement and delegations of authority.
Specify, by organizational title, the administrative and executive
officials determined by the parties to the agreement to be responsible
for designated affairs of the agreement and the respective duties and
authorities delegated to those officials. At a minimum, specify:
(1) The officials with authority to file agreements and agreement
modifications and to submit associated supporting materials or with
authority to delegate such authority; and
(2) A statement as to any designated U.S. representative of the
agreement required by this chapter.
15. Revise redesignated Sec. 535.404 to read as follows:
Sec. 535.404 Organization of conference and interconference
agreements.
(a) Each conference agreement shall include the following:
(1) Neutral body policing. State that, at the request of any
member, the conference shall engage the services of an independent
neutral body to fully police the obligations of the conference and its
members. Include a description of any such neutral body authority and
procedures related thereto.
(2) Prohibited acts. State affirmatively that the conference shall
not engage in conduct prohibited by section 10(c)(1) or 10(c)(3) of the
Act.
(3) Consultation: Shippers' requests and complaints. Specify the
procedures for consultation with shippers and for handling shippers'
requests and complaints.
(4) Independent action. Include provisions for independent action
in accordance with Sec. 535.801 of this part.
(b)(1) Each agreement between carriers not members of the same
conference must provide the right of independent action for each
carrier.
(2) Each interconference agreement must provide the right of
independent action for each conference and specify the procedures
therefor.
16. Amend redesignated Sec. 535.405 to revise paragraphs (a), (b),
(c), (d) and (e),
[[Page 11243]]
and to remove paragraphs (f) and (g) to read as follows:
Sec. 535.405 Modification of agreements.
* * * * *
(a) Agreement modifications shall be: filed in accordance with the
provisions of Sec. 535.401 and in the format specified in Sec. 535.402.
(b) Agreement modifications shall be made by reprinting the entire
page on which the matter being changed is published (``revised
pages''). Revised pages shall indicate the consecutive denomination of
the revision (e.g., ``1st Revised Page 7''). Additional material may be
published on a new original page. New pages inserted between existing
pages shall be numbered with an appropriate suffix (e.g., a page
inserted between page 7 and page 8 shall be numbered 7a, 7.1, or
similarly).
(c) If the modification is made by the use of revised pages, the
modification shall be accompanied by a page, submitted for illustrative
purposes only, indicating the language being modified in the following
manner (unless such marks are apparent on the face of the agreement):
(1) Language being deleted or superseded shall be struck through;
and,
(2) New and initial or replacement language shall immediately
follow the language being superseded and be underlined.
(d) If a modification requires the relocation of the provisions of
the agreement, such modification shall be accompanied by a revised
Table of Contents page which shall report the new location of the
agreement's provisions.
(e) When deemed necessary to ensure the clarity of an agreement,
the Commission may require parties to republish their entire agreement,
incorporating such modifications as have been made. No Information Form
requirements apply to the filing of a republished agreement.
17. Revise redesignated Sec. 535.501 paragraph (a) to read as
follows:
Sec. 535.501 General requirements.
(a) Certain agreement filings must be accompanied with an
Information Form setting forth information and data on the filing
parties' prior cargo carryings, revenue results and port service
patterns.
* * * * *
18. Amend redesignated Sec. 535.502 to revise paragraphs (a)(1),
(a)(3), (a)(4), (a)(5), (b)(1), and (b)(2) to read as follows:
Sec. 535.502 Subject agreements.
* * * * *
(a) * * *
(1) A rate agreement as defined in Sec. 535.104(aa);
(2) * * * * *
(3) A pooling agreement as defined in Sec. 535.104(x);
(4) An agreement authorizing discussion or exchange of data on
vessel-operating costs as defined in Sec. 535.104(jj); or
(5) An agreement authorizing regulation or discussion of service
contracts as defined in Sec. 535.104(cc).
(b) * * *
(1) A sailing agreement as defined in Sec. 535.104(bb); or
(2) A space charter agreement as defined in Sec. 535.104(gg).
19. Amend redesignated Sec. 535.503 to redesignate the introductory
text as paragraph (a) and to add new paragraph (b) to read as follows:
Sec. 535.503 Information form for Class A/B agreements.
(a) * * *
(b) Modifications to Class A/B agreements that expand the
geographic scope of the agreement or modifications to Class C
agreements that change the class of the agreement from C to A/B must be
accompanied by an Information Form for Class A/B agreements.
20. Amend redesignated Sec. 535.706 by revising paragraph (c)(1) to
read as follows:
Sec. 535.706 Filing of minutes---including shippers' requests and
complaints, and consultations.
* * * * *
(c) * * *
(1) Rates that, if adopted, would be required to be published in
the pertinent tariff except that this exemption does not apply to
discussions limited to general rate policy, general rate changes, the
opening or closing of rates, or service or time/volume contracts; or
* * * * *
21. Revise the heading of Subpart H to read as follows:
Subpart H--Mandatory and Prohibited Provisions
22. Amend redesignated Sec. 535.801 by: Revising paragraphs (a),
(b)(1), (d), (e), the final sentence of paragraph(f)(1), and (f)(2);
removing paragraph (i); and redesignating paragraphs (j) as (i) and (k)
as (j), to read as follows:
Sec. 535.801 Independent action.
(a) Each conference agreement shall specify the independent action
(``IA'') procedures of the conference, which shall provide that any
conference member may take independent action on any rate or service
item upon not more than 5 calendar days' notice to the conference and
shall otherwise be in conformance with section 5(b)(8) of the Act.
(b)(1) Each conference agreement that provides for a period of
notice for independent action shall establish a fixed or maximum period
of notice to the conference. A conference agreement shall not require
or permit a conference member to give more than 5 calendar days' notice
to the conference, except that in the case of a new or increased rate
the notice period shall conform to the tariff publication requirements
of this chapter.
* * * * *
(d) A conference agreement shall not require a member who proposes
independent action to attend a conference meeting, to submit any
further information other than that necessary to accomplish the
publication of the independent tariff item, or to comply with any other
procedure for the purpose of explaining, justifying, or compromising
the proposed independent action.
(e) A conference agreement shall specify that any new rate or
service item proposed by a member under independent action (except for
exempt commodities not published in the conference tariff) shall be
included by the conference in its tariff for use by that member
effective no later than 5 calendar days after receipt of the notice and
by any other member that notifies the conference that it elects to
adopt the independent rate or service item on or after its effective
date.
(f)(1) * * * Additionally, if a party to an agreement chooses to
take on an IA of another party, but alters it, such action is
considered a new IA and must be published pursuant to the IA
publication and notice provisions of the applicable agreement.
(2) An IA TVR published by a member of a ratemaking agreement may
be adopted by another member of the agreement, provided that the
adopting member takes on the original IA TVR in its entirety without
change to any aspect of the original rate offering (except beginning
and ending dates in the time period) (i.e., a separate TVR with a
separate volume of cargo but for the same duration). Any subsequent IA
TVR offering which results in a change in any aspect of the original IA
TVR, other than the name of the offering carrier or the beginning date
of the adopting IA TVR, is a new independent action and shall be
processed in accordance with the provisions of the applicable
agreement. The adoption procedures
[[Page 11244]]
discussed above do not authorize the participation by an adopting
carrier in the cargo volume of the originating carrier's IA TVR. Member
lines may publish and participate in joint IA TVRs, if permitted to do
so under the terms of their agreement; however, no carrier may
participate in an IA TVR already published by another carrier.
* * * * *
23. Revise redesignated Sec. 535.802 to read as follows:
Sec. 535.802 Service contracts.
(a) Ocean common carrier agreements may not prohibit or restrict a
member or members of the agreement from engaging in negotiations for
service contracts with one or more shippers.
(b) Ocean common carrier agreements may not require a member or
members of the agreement to disclose a negotiation on a service
contract, or the terms and conditions of a service contract, other than
those terms or conditions required by section 8(c)(3) of the Shipping
Act.
(c) Ocean common carrier agreements may not adopt mandatory rules
or requirements affecting the right of an agreement member or agreement
members to negotiate or enter into service contracts.
(d) An agreement may provide authority to adopt voluntary
guidelines relating to the terms and procedures of an agreement
member's or agreement members' service contracts if the guidelines
explicitly state the right of the members of the agreement not to
follow these guidelines.
(e) Voluntary guidelines shall be submitted to the Director, Bureau
of Economics and Agreement Analysis, Federal Maritime Commission,
Washington, DC 20573. Voluntary guidelines shall be kept confidential
in accordance with Sec. 535.608 of this part. Use of voluntary
guidelines prior to their submission is prohibited.
24. Amend Subpart H--Mandatory and Prohibited Provisions to add new
Sec. 535.803 to read as follows:
Sec. 535.803 Ocean freight forwarder compensation.
No conference or group of two or more ocean common carriers may:
(a) Deny to any member of such conference or group the right, upon
notice of not more than 5 calendar days, to take independent action on
any level of compensation paid to an ocean freight forwarder; or
(b) Agree to limit the payment of compensation to an ocean freight
forwarder to less than 1.25 percent of the aggregate of all rates and
charges applicable under the tariff assessed against the cargo on which
the forwarding services are provided.
By the Commission.3
---------------------------------------------------------------------------
\3\ Although Commissioner Won voted to issue the Final Rule, he
indicated a strong preference for the ``voluntary guidelines''
provisions set forth in the proposed rule.
---------------------------------------------------------------------------
Bryant L. VanBrakle,
Secretary.
[FR Doc. 99-5364 Filed 3-5-99; 8:45 am]
BILLING CODE 6730-01-P
