[Federal Register Volume 64, Number 148 (Tuesday, August 3, 1999)]
[Proposed Rules]
[Pages 42057-42058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19847]
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FEDERAL MARITIME COMMISSION
46 CFR Part 535
[Docket No. 99-13]
The Content of Ocean Common Carrier and Marine Terminal Operator
Agreements Subject to the Shipping Act of 1984
AGENCY: Federal Maritime Commission.
ACTION: Notice of inquiry.
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SUMMARY: The Federal Maritime Commission is issuing this Inquiry to
solicit comments concerning the appropriate content of agreements filed
with the Commission pursuant to the Shipping Act of 1984, as amended by
the Ocean Shipping Reform Act of 1998. The comments received will
assist the Commission in preparing a proposal to update or refine the
existing content standards.
DATES: Submit comments on or before October 4, 1999.
ADDRESSES: Address all comments concerning this Inquiry to: Bryant L.
VanBrakle, Secretary, Federal Maritime Commission, 800 North Capitol
St., N.W., Room 1046, Washington, D.C. 20573-0001.
FOR FURTHER INFORMATION CONTACT:
Florence A. Carr, Director, Bureau of Economics and Agreement Analysis,
Federal Maritime Commission, 800 North Capitol Street, N.W.,
Washington, D.C. 20573-0001, (202) 523-5787
Thomas Panebianco, General Counsel, Federal Maritime Commission, 800
North Capitol St., N.W., Washington, D.C. 20573-0001, (202) 523-5740
SUPPLEMENTARY INFORMATION: The Federal Maritime Commission
(``Commission'') is seeking comments from interested parties regarding
possible changes to its rules that govern the content of ocean common
carrier and marine terminal operator agreements filed with the
Commission. This proceeding is being initiated in response to the
suggestions of several commenters in a recent rulemaking, Docket No.
98-26, Ocean Common Carrier and Marine Terminal Operator Agreements
Subject to the Shipping Act of 1984, 64 FR 11236 (March 8, 1999),
urging the Commission to address, by rule, the issue of what is
required to be included in agreements subject to the Shipping Act of
1984, 46 U.S.C. app. 1701 et seq. (``1984 Act''), as amended by the
Ocean Shipping Reform Act of 1998, Pub. L. 105-258, 112 Stat. 1902
(``OSRA'').
Effective May 1, 1999, in Docket No. 98-26, the Commission amended
its rules governing agreements among ocean common carriers and marine
terminal operators to reflect changes made to the 1984 Act by OSRA. As
part of that proceeding, the Commission also eliminated some agreement
form and manner requirements that had previously been in effect. The
Commission stated, however, that the elimination of the form and manner
requirements had no substantive effect on the content requirements for
agreements. Rather, the Commission retained the content requirements,
which mirror section 5(a) of the 1984 Act, which section was not
changed by OSRA. Section 5(a) requires that ``a true copy of every
agreement entered into with respect to any activity described in
section 4 (a) or (b) of this Act shall be filed with the Commission. *
* *''
46 U.S.C. app. 1704(a).
Section 4, as amended by OSRA, describes the agreements that are
within the scope of the 1984 Act. Section 4(a) applies to agreements by
or among ocean common carriers to
(1) discuss, fix, or regulate transportation rates, including
through rates, cargo space accommodations, and other conditions of
service;
(2) pool or apportion traffic, revenues, earnings, or losses;
(3) allot ports or restrict or otherwise regulate the number and
character of sailings between ports;
(4) limit or regulate the volume or character of cargo or
passenger traffic to be carried;
(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.
46 U.S.C. app. 1703(a).
Section 4(b) applies to agreements among marine terminal operators
and among one or more marine terminal operators and one or more ocean
common 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.
46 U.S.C. app. 1703(b).
The Commission's rules governing agreements echo the requirement in
section 5(a) of the 1984 Act that agreements filed with the Commission
must be true and complete. 46 CFR 535.103(g) provides:
An agreement filed under the Act must be clear and definite in
its terms, must embody the complete understanding of the parties,
and must set forth the specific authorities and conditions under
which the parties to the agreement will conduct their present
operations and regulate the relationships among the agreement
members.
Similarly, 46 CFR 535.407(a) states:
Any agreement required to be filed by the Act and this part
shall be the complete agreement among the parties and shall specify
in detail the substance of the understanding of the parties.
In comments filed in Docket No. 98-26, a number of carrier
commenters expressed concerns that elimination of form and manner
requirements could create uncertainty as to what substantive content
should be included in filed agreements. The Commission rejected these
arguments; however, it further determined that it would institute a
subsequent rulemaking proceeding on the issue of the content of filed
agreements in response to requests from a nearly unanimous carrier
community. The carrier commenters sought more specific requirements as
to what matters do or do not have to be filed. They also suggested that
the Commission's rules 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 arrangements. 64 FR at 11238-9.
At this juncture, the Commission is undertaking a review of its
existing agreement content regulations to determine whether, and in
what manner, they should be updated or refined. Comments received in
response to this Inquiry will assist the
[[Page 42058]]
Commission in fashioning a notice of proposed rulemaking reflecting the
evolving shipping industry and the Commission's statutory mission.
Commenters are free to address any issue relevant to the agreement
content rules. In addition, set forth below are questions suggesting
particular areas of concern or focus for the Commission:
1. Should the current filing exemption for routine operational or
administrative matters be eliminated, retained in its current form, or
modified? If so, describe how.
2. If parties were required to file every arrangement or
understanding among themselves that came within the scope of section 4
(including all operational or administrative matters), would they be
subject to commercial harm or burden? If so, describe in detail
(providing copies of and using as many specific examples as possible
of) actual arrangements or understandings for which filing would give
rise to such burdens or harm; explain (and where possible, quantify)
exactly what such burdens would be.
3. Should the Commission adopt different standards for agreement
content for different types of agreements, i.e., would it be
appropriate to tailor content rules to rate agreements (conferences and
rate discussion agreements) vis-a-vis operational agreements (alliances
and space/vessel charter arrangements)?
4. Are there types of agreements currently filed with the
Commission that would be appropriate for exemption from filing under
the standard set forth in section 16 of the Act, i.e., the filing
exemption will not result in a substantial reduction in competition or
be detrimental to commerce? Exemptions may be either partial (e.g.,
eliminating waiting periods, or requiring notification in lieu of
filing) or complete.
5. Should the rates charged by one carrier to another for use of
space and/or vessels be exempt from filing or withheld from public
disclosure?
6. Is public disclosure of agreements filed with the FMC useful to
shippers, intermediaries, labor, non-party carriers, marine terminal
operators, or other interested persons? If so, describe in detail the
types of agreements and information used, and why the disclosure of
such information is useful.
7. Given the public notice requirement of section 6 of the 1984
Act, can the Commission implement measures to protect commercially
sensitive information contained in agreements?
8. How are competing concerns of completeness, burden, and
confidentiality resolved in the filing requirements of other regulatory
authorities, including antitrust and sector specific agencies?
Now therefore, It is ordered that this Notice of Inquiry be
published in the Federal Register.
By the Commission.
Bryant L. VanBrakle,
Secretary.
[FR Doc. 99-19847 Filed 8-2-99; 8:45 am]
BILLING CODE 6730-01-P
