[Title 46 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2013 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 46

Shipping


________________________

Part 500 to End

                         Revised as of October 1, 2013

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2013
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 46:
          Chapter IV--Federal Maritime Commission                    3
  Finding Aids:
      Table of CFR Titles and Chapters........................     287
      Alphabetical List of Agencies Appearing in the CFR......     307
      List of CFR Sections Affected...........................     317

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 46 CFR 501.1 refers 
                       to title 46, part 501, 
                       section 1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
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    To determine whether a Code volume has been amended since its 
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EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
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This material, like any other properly issued regulation, has the force 
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    (a) The incorporation will substantially reduce the volume of 
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    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
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    (c) The incorporating document is drafted and submitted for 
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this volume.

[[Page vii]]

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    Charles A. Barth,
    Director,
    Office of the Federal Register.
    October 1, 2013.







[[Page ix]]



                               THIS TITLE

    Title 46--Shipping is composed of nine volumes. The parts in these 
volumes are arranged in the following order: Parts 1-40, 41-69, 70-89, 
90-139, 140-155, 156-165, 166-199, 200-499, and 500 to end. The first 
seven volumes containing parts 1-199 comprise chapter I--Coast Guard, 
DHS. The eighth volume, containing parts 200-- 499, includes chapter 
II--Maritime Administration, DOT and chapter III--Coast Guard (Great 
Lakes Pilotage), DHS. The ninth volume, containing part 500 to end, 
includes chapter IV--Federal Maritime Commission. The contents of these 
volumes represent all current regulations codified under this title of 
the CFR as of October 1, 2013.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Michael L. 
White, assisted by Ann Worley.

[[Page 1]]



                           TITLE 46--SHIPPING




                  (This book contains part 500 to End)

  --------------------------------------------------------------------
                                                                    Part

chapter iv--Federal Maritime Commission.....................         501

[[Page 3]]



                 CHAPTER IV--FEDERAL MARITIME COMMISSION




  --------------------------------------------------------------------

           SUBCHAPTER A--GENERAL AND ADMINISTRATIVE PROVISIONS
Part                                                                Page
500

[Reserved]

501             The Federal Maritime Commission--General....           5
502             Rules of practice and procedure.............          19
503             Public information..........................          93
504             Procedures for environmental policy analysis         124
505             Administrative offset.......................         129
506             Civil monetary penalty inflation adjustment.         131
507             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Federal 
                    Maritime Commission.....................         133
508             Employee ethical conduct standards and 
                    financial disclosure regulations........         139
 SUBCHAPTER B--REGULATIONS AFFECTING OCEAN SHIPPING IN FOREIGN COMMERCE
515             Licensing, financial responsibility 
                    requirements, and general duties for 
                    ocean transportation intermediaries.....         140
520             Carrier automated tariffs...................         165
525             Marine terminal operator schedules..........         181
530             Service contracts...........................         184
531             NVOCC Service arrangements..................         195
532             NVOCC Negotiated rate arrangements..........         205
535             Ocean common carrier and marine terminal 
                    operator agreements subject to the 
                    Shipping Act of 1984....................         206
540             Passenger vessel financial responsibility...         244

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545             Interpretations and statements of policy....         264
  SUBCHAPTER C--REGULATIONS AND ACTIONS TO ADDRESS RESTRICTIVE FOREIGN 
                           MARITIME PRACTICES
550             Regulations to adjust or meet conditions 
                    unfavorable to shipping in the foreign 
                    trade of the United States..............         265
551             Actions to adjust or meet conditions 
                    unfavorable to shipping in the U.S. 
                    foreign trade...........................         270
555             Actions to address adverse conditions 
                    affecting U.S.-flag carriers that do not 
                    exist for foreign carriers in the United 
                    States..................................         270
560             Actions to address conditions unduly 
                    impairing access of U.S.-flag vessels to 
                    ocean trade between foreign ports.......         274
565             Controlled carriers.........................         279
   SUBCHAPTER D--REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED 
                ACTIVITIES IN FOREIGN COMMERCE [RESERVED]

[[Page 5]]



           SUBCHAPTER A_GENERAL AND ADMINISTRATIVE PROVISIONS



                           PART 500 [RESERVED]



PART 501_THE FEDERAL MARITIME COMMISSION_GENERAL--Table of Contents



                  Subpart A_Organization and Functions

Sec.
501.1 Purpose.
501.2 General.
501.3 Organizational components of the Federal Maritime Commission.
501.4 Lines of responsibility.
501.5 Functions of the organizational components of the Federal Maritime 
          Commission.

                         Subpart B_Official Seal

501.11 Official seal.

          Subpart C_Delegation and Redelegation of Authorities

501.21 Delegation of authorities.
501.22 [Reserved]
501.23 Delegation to the General Counsel.
501.24 Delegation to the Secretary.
501.25 Delegation to and redelegation by the Managing Director.
501.26 Delegation to and redelegation by the Director, Bureau of 
          Certification and Licensing.
501.27 Delegation to and redelegation by the Director, Bureau of Trade 
          Analysis.
501.28 Delegation to the Director, Bureau of Enforcement.

                Subpart D_Public Requests for Information

501.41 Public requests for information and decisions.

Appendix A to Part 501--Federal Maritime Commission Organization Chart

    Authority: 5 U.S.C. 551-557, 701-706, 2903 and 6304; 31 U.S.C. 3721; 
41 U.S.C. 414 and 418; 44 U.S.C. 501-520 and 3501-3520; 46 U.S.C. 301-
307, 40101-41309, 42101-42109, 44101-44106; Pub. L. 89-56, 70 Stat. 195; 
5 CFR Part 2638; Pub. L. 104-320, 110 Stat. 3870.

    Source: 70 FR 7659, Feb. 15, 2005, unless otherwise noted.



                  Subpart A_Organization and Functions



Sec. 501.1  Purpose.

    This part describes the organization, functions and Official Seal 
of, and the delegation of authority within, the Federal Maritime 
Commission (``Commission'').



Sec. 501.2  General.

    (a) Statutory functions. The Commission regulates common carriers by 
water and other persons involved in the oceanborne foreign commerce of 
the United States under provisions of the Shipping Act of 1984 (46 
U.S.C. 40101-41309); section 19 of the Merchant Marine Act, 1920 (46 
U.S.C. 42101-42109); the Foreign Shipping Practices Act of 1988 (46 
U.S.C. 42301-42307); sections 2 and 3, Public Law 89-777, Financial 
Responsibility for Death or Injury to Passengers and for Non-Performance 
of Voyages (46 U.S.C. 44101-44106); and other applicable statutes.
    (b) Establishment and composition of the Commission. The Commission 
was established as an independent agency by Reorganization Plan No. 7 of 
1961, effective August 12, 1961, and is composed of five Commissioners 
(``Commissioners'' or ``members''), appointed by the President, by and 
with the advice and consent of the Senate. Not more than three 
Commissioners may be appointed from the same political party. The 
President designates one of the Commissioners to serve as the Chairman 
of the Commission (``Chairman'').
    (c) Terms and vacancies. The term of each member of the Commission 
is five years and begins when the term of the predecessor of that member 
ends (i.e., on June 30 of each successive year), except that, when the 
term of office of a member ends, the member may continue to serve until 
a successor is appointed and qualified. A vacancy in the office of any 
Commissioner shall be

[[Page 6]]

filled in the same manner as the original appointment, except that any 
person chosen to fill a vacancy shall be appointed only for the 
unexpired term of the Commissioner whom he or she succeeds. Each 
Commissioner shall be removable by the President for inefficiency, 
neglect of duty, or malfeasance in office.
    (d) Quorum. A vacancy or vacancies in the Commission shall not 
impair the power of the Commission to execute its functions. The 
affirmative vote of a majority of the members of the Commission is 
required to dispose of any matter before the Commission. For purposes of 
holding a formal meeting for the transaction of the business of the 
Commission, the actual presence of two Commissioners shall be 
sufficient. Proxy votes of absent members shall be permitted.
    (e) Meetings; records; rules and regulations. The Commission shall, 
through its Secretary, keep a true record of all its meetings and the 
yea-and-nay votes taken therein on every action and order approved or 
disapproved by the Commission. In addition to or in aid of its 
functions, the Commission adopts rules and regulations in regard to its 
powers, duties and functions under the shipping statutes it administers.

[70 FR 7659, Feb. 15, 2005, as amended at 74 FR 50714, Oct. 1, 2009]



Sec. 501.3  Organizational components of the Federal Maritime 
Commission.

    The major organizational components of the Commission are set forth 
in the Organization Chart attached as Appendix A to this part. An 
outline table of the components/functions follows:
    (a) Office of the Chairman of the Federal Maritime Commission. 
(Chief Executive and Administrative Officer, FOIA and Privacy Act 
Appeals Officer.)
    (1) Information Security Officer.
    (2) Designated Agency Ethics Official.
    (b) Offices of the Members of the Federal Maritime Commission.
    (c) Office of the Secretary. (FOIA and Privacy Act Officer, Federal 
Register Liaison, Performance Improvement Officer.)
    (d) Office of the General Counsel. (Ethics Official, Legislative 
Counsel.)
    (e) Office of Administrative Law Judges.
    (f) Office of Equal Employment Opportunity.
    (g) Office of the Inspector General.
    (h) Office of the Managing Director. (Chief Operating Officer, Chief 
Acquisition Officer, Audit Follow-up and Management Controls Official, 
Chief Information Officer, Chief Financial Officer, Competition 
Advocate, Senior Agency Official for Privacy.)
    (1) Office of Budget and Finance.
    (2) Office of Human Resources. (Information Security Officer.)
    (3) Office of Information Technology. (Chief Technology Officer, IT 
Security Officer.)
    (4) Office of Management Services. (Physical Security, FMC 
Contracting Officer.)
    (5) Bureau of Certification and Licensing.
    (i) Office of Passenger Vessels and Information Processing.
    (ii) Office of Ocean Transportation Intermediaries.
    (6) Bureau of Trade Analysis.
    (i) Office of Agreements.
    (ii) Office of Economics and Competition Analysis.
    (iii) Office of Service Contracts and Tariffs.
    (7) Bureau of Enforcement.
    (8) Area Representatives.
    (i) Office of Consumer Affairs and Dispute Resolution Services. 
(Ombudsman, Senior Dispute Resolution Specialist.)
    (j) Boards and Committees.
    (1) Executive Resources Board.
    (2) Performance Review Board.

[70 FR 7659, Feb. 15, 2005, as amended at 75 FR 29452, May 26, 2010]



Sec. 501.4  Lines of responsibility.

    (a) Chairman. The Office of the Secretary, the Office of the General 
Counsel, the Office of Administrative Law Judges, the Office of Consumer 
Affairs and Dispute Resolution Services, the Office of Equal Employment 
Opportunity, the Office of the Managing Director, and officials 
performing the functions of Information Security Official, report to the 
Chairman of the Commission.
    (b) Commission. The Inspector General reports to the Commission.

[[Page 7]]

    (c) Office of the Managing Director. The Bureau of Certification and 
Licensing, Bureau of Enforcement, Bureau of Trade Analysis, Area 
Representatives, Office of Budget and Finance, Office of Human 
Resources, Office of Information Technology, and Office of Management 
Services report to the Office of the Managing Director. The Office of 
Equal Employment Opportunity and the Office of the Inspector General 
receive administrative guidance from the Managing Director. All other 
units of the Commission receive administrative direction from the 
Managing Director.

[75 FR 29452, May 26, 2010, as amended at 75 FR 31321, June 3, 2010; 77 
FR 59128, Sept. 26, 2012]



Sec. 501.5  Functions of the organizational components of the Federal
Maritime Commission.

    As further provided in subpart C of this part, the functions, 
including the delegated authority of the Commission's organizational 
components and/or officials to exercise their functions and to take all 
actions necessary to direct and carry out their assigned duties and 
responsibilities under the lines of responsibility set forth in Sec. 
501.4, are briefly set forth as follows:
    (a) Chairman. As the chief executive and administrative officer of 
the Commission, the Chairman presides at meetings of the Commission, 
administers the policies of the Commission to its responsible officials, 
and ensures the efficient discharge of their responsibilities. The 
Chairman provides management direction to the Offices of Equal 
Employment Opportunity, Secretary, General Counsel, Administrative Law 
Judges, Consumer Affairs and Dispute Resolution Services, and Managing 
Director with respect to all matters concerning overall Commission 
workflow, resource allocation (both staff and budgetary), work 
priorities and similar managerial matters; and establishes, as 
necessary, various committees and boards to address overall operations 
of the agency. The Chairman serves as appeals officer under the Freedom 
of Information Act, the Privacy Act, and the Federal Activities 
Inventory Reform Act of 1998. The Chairman appoints the heads of major 
administrative units after consultation with the other Commissioners. In 
addition, the Chairman, as ``head of the agency,'' has certain 
responsibilities under Federal laws and directives not specifically 
related to shipping. For example, the special offices or officers within 
the Commission, listed under paragraphs (a)(1) through (a)(3) of this 
section, are appointed or designated by the Chairman, are under his or 
her direct supervision and report directly to the Chairman:
    (1) Under the direction and management of the Office Director, the 
Office of Equal Employment Opportunity (``EEO'') ensures that statutory 
and regulatory prohibitions against discrimination in employment and the 
requirements for related programs are fully implemented. As such, the 
Office administers and implements comprehensive programs on 
discrimination complaints processing, affirmative action and special 
emphasis. The Director, EEO, advises the Chairman regarding EEO's plans, 
procedures, regulations, reports and other matters pertaining to policy 
and the agency's programs. Additionally, the Director provides 
leadership and advice to managers and supervisors in carrying out their 
respective responsibilities in equal employment opportunity. The EEO 
Office administers and implements these program responsibilities in 
accordance with Equal Employment Opportunity Commission (``EEOC'') 
Regulations at 29 CFR Part 1614 and other relevant EEOC Directives and 
Bulletins.
    (2) The Information Security Officer is a senior agency official 
designated under Sec. 503.52 of this chapter to direct and administer 
the Commission's information security program, which includes an active 
oversight and security education program to ensure effective 
implementation of Executive Orders 12958 and 12968.
    (3) The Designated Agency Ethics Official and Alternate are 
appropriate agency employees formally designated under 5 CFR 2638.202 
and Sec. 508.101 of this chapter to coordinate and manage the ethics 
program as set forth in 5 CFR 2638.203, which includes the functions of 
advising on matters of employee responsibilities and conduct, and 
serving

[[Page 8]]

as the Commission's designee(s) to the Office of Government Ethics on 
such matters. They provide counseling and guidance to employees on 
conflicts of interest and other ethical matters.
    (b) Commissioners. The members of the Commission, including the 
Chairman, implement various shipping statutes and related directives by 
rendering decisions, issuing orders, and adopting and enforcing rules 
and regulations governing persons subject to the shipping statutes; and 
perform other duties and functions as may be appropriate under 
reorganization plans, statutes, executive orders, and regulations. In 
addition, the Inspector General reports to and is under the general 
supervision of the Commission.
    (1) Under the direction and management of the Inspector General, the 
Office of Inspector General conducts, supervises and coordinates audits 
and investigations relating to the programs and operations of the 
Commission; reviews existing and proposed legislation and regulations 
pertaining to such programs and operations; provides leadership and 
coordination and recommends policies for activities designed to promote 
economy, efficiency, and effectiveness in the administration of, and to 
prevent and detect waste, fraud and abuse in, such programs and 
operations; and advises the Commission and the Congress fully and 
currently about problems and deficiencies relating to the administration 
of such programs and operations and the necessity for and progress of 
corrective action.
    (2) [Reserved]
    (c) Secretary. Under the direction and management of the Secretary, 
the Office of the Secretary:
    (1) Is responsible for the preparation, maintenance and disposition 
of the official files and records documenting the business of the 
Commission. In this regard, the Office:
    (i) Prepares and, as appropriate, publishes agenda of matters for 
action by the Commission; prepares and maintains the minutes with 
respect to such actions; signs, serves and issues, on behalf of the 
Commission, documents implementing such actions, and coordinates follow-
up thereon.
    (ii) Receives and processes formal and informal complaints involving 
alleged statutory violations, petitions for relief, special dockets 
applications, applications to correct clerical or administrative errors 
in service contracts, requests for conciliation service, staff 
recommendations for investigation and rulemaking proceedings, and 
motions and filings relating thereto.
    (iii) Disseminates information regarding the proceedings, 
activities, functions, and responsibilities of the Commission to the 
maritime industry, news media, general public, and other government 
agencies. In this capacity the Office also:
    (A) Administers the Commission's Freedom of Information Act, Privacy 
Act and Government in the Sunshine Act responsibilities; the Secretary 
serves as the Freedom of Information Act and Privacy Act Officer.
    (B) Authenticates records of the Commission.
    (C) Receives and responds to subpoenas directed to Commission 
personnel and/or records.
    (D) Compiles and publishes the bound volumes of Commission 
decisions.
    (E) Coordinates publication of documents, including rules and 
modifications thereto with the Office of the Federal Register; the 
Secretary serves as the Federal Register Liaison Officer and Certifying 
Officer.
    (F) Oversees the content and organization of the Commission's Web 
site and authorizes the publication of documents thereon.
    (2) Through the Secretary and, in the absence or preoccupation of 
the Secretary, through the Assistant Secretary, administers oaths 
pursuant to 5 U.S.C. Sec. 2903(b).
    (3) Manages the Commission's library and related services.
    (4) Serves as the lead executive responsible for development, in 
coordination with the Managing Director, of the agency's strategic plan, 
monitoring of results of strategic goals and objectives, and preparation 
of all required reports.
    (d) General Counsel. Under the direction and management of the 
General Counsel, the Office of the General Counsel:
    (1) Reviews for legal sufficiency all staff memoranda and 
recommendations

[[Page 9]]

that are presented for Commission action and staff actions acted upon 
pursuant to delegated authority under Sec. Sec. 501.27(e) and 
501.27(g).
    (2) Provides written or oral legal opinions to the Commission, to 
the staff, and to the general public in appropriate cases.
    (3) Prepares and/or reviews for legal sufficiency, before service, 
all final Commission decisions, orders, and regulations.
    (4) Monitors, reviews and, as requested by the Committees of the 
Congress, the Office of Management and Budget, or the Chairman, prepares 
comments on all legislation introduced in the Congress affecting the 
Commission's programs or activities, and prepares draft legislation or 
amendments to legislation; coordinates such matters with the appropriate 
Bureau, Office or official and advises appropriate Commission officials 
of legislation that may impact the programs and activities of the 
Commission; prepares testimony for congressional hearings and responses 
to requests from congressional offices.
    (5) Serves as the legal representative of the Commission in courts 
and in administrative proceedings before other government agencies.
    (6) Monitors and reports on international maritime developments, 
including laws and practices of foreign governments which affect ocean 
shipping; and identifies potential state-controlled carriers within the 
meaning of section 3(8) of the Shipping Act of 1984 (46 U.S.C. 
40102(8)), researches their status, and makes recommendations to the 
Commission concerning their classification.
    (7) Represents the Commission in U.S. Government interagency groups 
dealing with international maritime issues; represents the Commission 
and acts as technical advisor in bilateral and multilateral maritime 
discussions; and coordinates Commission activities through liaison with 
other government agencies and programs and international organizations.
    (8) Screens, routes, and maintains custody of U.S. Government and 
international organization documents, subject to the classification and 
safekeeping controls administered by the Commission's Information 
Security Officer.
    (9) Reviews for legal sufficiency all adverse personnel actions, 
procurement activities, Freedom of Information Act and Privacy Act 
matters and other administrative actions.
    (e) Administrative Law Judges. Under the direction and management of 
the Chief Administrative Law Judge, the Office of Administrative Law 
Judges holds hearings and renders initial or recommended decisions in 
formal rulemaking and adjudicatory proceedings as provided in the 
Shipping Act of 1984, and other applicable laws and other matters 
assigned by the Commission, in accordance with the Administrative 
Procedure Act and the Commission's Rules of Practice and Procedure.
    (f) Office of the Managing Director.
    (1) The Managing Director:
    (i) As Chief Operating Officer, is responsible to the Chairman for 
the management and coordination of Commission programs managed by the 
Bureaus of Certification and Licensing; Trade Analysis; Enforcement; the 
Commission's Area Representatives; Offices of Budget and Finance; Human 
Resources; Management Services; and Information Technology, as more 
fully described below, and thereby implements the regulatory policies of 
the Commission and the administrative policies and directives of the 
Chairman. The Managing Director also provides administrative guidance to 
the Offices of Equal Employment Opportunity and Inspector General;
    (ii) The Office initiates recommendations, collaborating with other 
elements of the Commission as warranted, for long-range plans, new or 
revised policies and standards, and rules and regulations;
    (iii) Ensures the periodic review and updating of Commission Orders;
    (iv) Interprets and administers governmental policies and programs 
in a manner consistent with Federal guidelines, including those 
involving financial management, human resources, information technology, 
and procurement;
    (v) Is responsible for coordinating records management activities 
and developing Paperwork Reduction Act

[[Page 10]]

clearances for submission to the Office of Management and Budget;
    (vi) Is responsible for directing and administering the Commission's 
training and development function;
    (vii) Acts as the Commission's representative to the Small Agency 
Council;
    (viii) Is the agency's Chief Acquisition Officer under the Services 
Acquisition Reform Act of 2003, Public Law 108-136, 117 Stat. 1663 and 
Commission Order 112;
    (ix) Is the Audit Follow-up and Management (Internal) Controls 
Official for the Commission under Commission Orders 103 and 106;
    (x) Is the agency's Chief Financial Officer;
    (xi) Is the agency's Chief Operating Officer;
    (xii) Serves as the Senior Agency Official for Privacy under 
Commission Order 89;
    (2) The Deputy Managing Director is the Commission's Competition 
Advocate under Commission Order 112.
    (3) The Assistant Managing Director is the Commission's Chief 
Information Officer and Records Management Officer. The Assistant 
Managing Director provides direction to the Office of Information 
Technology in interpreting and administering governmental policies and 
programs for information technology in a manner consistent with federal 
guidelines. The Assistant Managing Director initiates recommendations, 
collaborating with other elements of the Commission as warranted, for 
long-range plans, new or revised policies and standards, and rules and 
regulations with respect to the use and security of information and 
technology.
    (4) Other offices under the management direction of the Managing 
Director are as follows:
    (i) The Office of Budget and Finance, under the direction and 
management of the Office Director, administers the Commission's 
financial management program, including fiscal accounting activities, 
fee and forfeiture collections, and payments, and ensures that 
Commission obligations and expenditures of appropriated funds are 
proper; develops annual budget justifications for submission to the 
Congress and the Office of Management and Budget; develops and 
administers internal controls systems that provide accountability for 
agency funds; administers the Commission's travel and cash management 
programs, ensures accountability for official passports; and assists in 
the development of proper levels of user fees.
    (ii) The Office of Human Resources, under the direction and 
management of the Office Director, plans and administers a complete 
personnel management program including: Recruitment and placement; 
position classification and pay administration; occupational safety and 
health; employee counseling services; employee relations; workforce 
discipline; performance appraisal; incentive awards; retirement; 
personnel security; and the Commission's Human Capital Management Plan. 
The Office Director serves as the Commission's Human Capital Management 
Officer. A human resources specialist within the Office serves as the 
Information Security Officer under Commission Order 80.
    (iii) The Office of Information Technology, under the direction and 
management of the Office Director, administers the Commission's 
information technology (``IT'') program under the Paperwork Reduction 
Act of 1995, as amended, as well as other applicable laws that prescribe 
responsibility for operating the IT program. The Office provides 
administrative support with respect to information technology to the 
program operations of the Commission. The Office's functions include: 
Conducting IT management studies and surveys; managing data and voice 
telecommunications; developing and managing databases and applications; 
and administering IT contracts. The Office is also responsible for 
managing the computer security program. The Director of the Office 
serves as the Commission's Chief Technology Officer; the IT Security 
Officer reports to the Director of the Office under Commission Order 80.
    (iv) The Office of Management Services, under the direction and 
management of the Office Director, directs and administers a variety of 
management support

[[Page 11]]

service functions of the Commission including conducting internal 
management reviews and recommending changes in organization and workflow 
processes. The Director of the Office is the Commission's principal 
Contracting Officer under Commission Order 112. Programs include: 
Acquisition of all goods and services used by the Commission; building 
security and emergency preparedness; real and personal property 
management; printing and copying; mail services; graphic design; 
equipment maintenance; and transportation. The Office Director is the 
agency's liaison with the Small Agency Council's Procurement and 
Administrative Services Committees and with the General Services 
Administration (``GSA'') and the Department of Homeland Security 
(``DHS'') on the Building Security Committee.
    (g) Under the direction and management of the Bureau Director, the 
Bureau of Certification and Licensing:
    (1) Through the Office of Transportation Intermediaries, has 
responsibility for reviewing applications for Ocean Transportation 
Intermediary (``OTI'') licenses, and maintaining records about 
licensees.
    (2) Through the Office of Passenger Vessels and Information 
Processing, has responsibility for reviewing applications for 
certificates of financial responsibility with respect to passenger 
vessels, reviewing requests for substitution of alternative forms of 
financial protection, managing all activities with respect to evidence 
of financial responsibility for OTIs and passenger vessel owner/
operators, and for developing and maintaining all Bureau database and 
records of OTI applicants and licensees.
    (h) Under the direction and management of the Bureau Director, the 
Bureau of Trade Analysis, through its Office of Agreements; Office of 
Economics and Competition Analysis; and Office of Service Contracts and 
Tariffs, reviews agreements and monitors the concerted activities of 
common carriers by water, reviews and analyzes service contracts, 
monitors rates of government controlled carriers, reviews carrier 
published tariff systems under the accessibility and accuracy standards 
of the Shipping Act of 1984 (46 U.S.C. 40501(a)-(g)), responds to 
inquiries or issues that arise concerning service contracts or tariffs, 
and is responsible for competition oversight and market analysis.
    (i) Under the direction and management of the Bureau Director, the 
Bureau of Enforcement:
    (1) Participates as trial counsel in formal Commission proceedings 
when designated by Commission order, or when intervention is granted;
    (2) Initiates, processes and negotiates the informal compromise of 
civil penalties under Sec. 501.28 and Sec. 502.604 of this chapter, 
and represents the Commission in proceedings and circumstances as 
designated;
    (3) [Reserved]
    (4) Coordinates with other bureaus and offices to provide legal 
advice, attorney liaison, and prosecution, as warranted, in connection 
with enforcement matters;
    (5) Conducts investigations leading to enforcement action, advises 
the Commission of evolving competitive practices in international 
oceanborne commerce, and assesses the practical repercussions of 
Commission regulations.
    (j) Area Representatives. Maintain a presence in locations other 
than Washington, DC, with activities including the following:
    (1) Representing the Commission within their respective geographic 
areas;
    (2) Providing liaison between the Commission and the shipping 
industry and interested public; conveying pertinent information 
regarding regulatory activities and problems; and recommending courses 
of action and solutions to problems as they relate to the shipping 
public, the affected industry, and the Commission;
    (3) Furnishing to interested persons information, advice, and access 
to Commission public documents;
    (4) Receiving and resolving informal complaints, in coordination 
with the Director, Office of Consumer Affairs and Dispute Resolution 
Services;
    (5) Investigating potential violations of the shipping statutes and 
the Commission's regulations;
    (6) Conducting shipping industry surveillance programs to ensure 
compliance with the shipping statutes and the

[[Page 12]]

Commission's regulations. Such programs include common carrier audits, 
service contract audits and compliance checks of OTIs;
    (7) Upon request of the Bureau of Certification and Licensing, 
auditing passenger vessel operators to determine the adequacy of 
performance bonds and the availability of funds to pay liability claims 
for death or injury, and assisting in the background surveys of OTI 
applicants;
    (8) Conducting special surveys and studies, and recommending 
policies to strengthen enforcement of the shipping laws;
    (9) Maintaining liaison with Federal and State agencies with respect 
to areas of mutual concern; and
    (10) Providing assistance to the various bureaus and offices of the 
Commission, as appropriate and when requested.
    (k) The Office of Consumer Affairs and Dispute Resolution Services, 
under the direction and management of the Office Director, has 
responsibility for developing and implementing the Alternative Dispute 
Resolution Program, responds to consumer inquiries and complaints, and 
coordinates the Commission's efforts to resolve disputes within the 
shipping industry. The Office reviews existing and proposed legislation 
and regulations for impact on the shipping industry and its consumers 
and recommends appropriate policies and regulations to facilitate trade. 
The Director of the Office of Consumer Affairs and Dispute Resolution 
Services is designated as the agency's Senior Dispute Resolution 
Specialist pursuant to section 3 of the Administrative Dispute 
Resolution Act, Public Law 101-552, as amended by section 4(a) of Public 
Law 104-320. The Director also serves as the Commission's Ombudsman.
    (l) Boards and Committees. The following boards and committees are 
established by separate Commission orders to address matters relating to 
the overall operations of the Commission:
    (1) The Executive Resources Board (``ERB'') is composed of members 
of the Senior Executive Service as designated by the Chairman. The 
Chairman shall designate an ERB chair on a rotational basis beginning 
October 1 of each year. The Board meets on an ad hoc basis to discuss, 
develop and submit recommendations to the Chairman on matters related to 
the merit staffing process for career appointments in the Senior 
Executive Service, including the executive qualifications of candidates 
for career appointment. The Board also plans and manages the 
Commission's executive development programs. Serving the Board in a non-
voting advisory capacity are the Director, Office of Equal Employment 
Opportunity, the Training Officer, and the Director, Office of Human 
Resources, who also serves as the Board's secretary. [Commission Order 
No. 95.]
    (2) The Performance Review Board (``PRB'') is chaired by a 
Commissioner designated by the Chairman, and is composed of a standing 
register of members which is published in the Federal Register. Once a 
year, the PRB Chairman appoints performance review panels from the 
membership to review individual performance appraisals and other 
relevant information pertaining to Senior Executives at the Commission, 
and to recommend final performance ratings to the Chairman. [Commission 
Order No. 115.] Every three years, the PRB considers supervisors' 
recommendations as to whether Senior Executives of the Commission should 
be recertified under the Ethics Reform Act of 1989, and makes 
appropriate recommendations to the Commission's Chairman. [Commission 
Order No. 118.]
    (3) The Maritime Environmental Committee (``MEC'') is an internal 
Committee made up of Commission staff as designated by the Chairman. The 
MEC advises the Chairman and the Commission on issues involving 
environmental and sustainable shipping practices, initiatives, 
operational proposals, and similar matters affecting entities regulated 
by the Commission to assist the Commission in its review and regulation 
of agreements and in its statutory responsibility for ensuring an 
efficient ocean transportation system.

[70 FR 7659, Feb. 15, 2005, as amended at 74 FR 50714, Oct. 1, 2009; 75 
FR 29452, May 26, 2010; 75 FR 31321, June 3, 2010; 77 FR 59128, Sept. 
26, 2012; 78 FR 13277, Feb. 27, 2013]

[[Page 13]]



                         Subpart B_Official Seal



Sec. 501.11  Official seal.

    (a) Description. Pursuant to section 201(c) of the Merchant Marine 
Act, 1936, as amended (46 U.S.C. 301(d)), the Commission prescribes its 
official seal, as adopted by the Commission on August 14, 1961, which 
shall be judicially noticed. The design of the official seal is 
described as follows:
    (1) A shield argent paly of six gules, a chief azure charged with a 
fouled anchor or; shield and anchor outlined of the third; on a wreath 
argent and gules, an eagle displayed proper; all on a gold disc within a 
blue border, encircled by a gold rope outlined in blue, and bearing in 
white letters the inscription ``Federal Maritime Commission'' in upper 
portion and ``1961'' in lower portion.
    (2) The shield and eagle above it are associated with the United 
States of America and denote the national scope of maritime affairs. The 
outer rope and fouled anchor are symbolic of seamen and waterborne 
transportation. The date ``1961'' has historical significance, 
indicating the year in which the Commission was created.
    (b) Design.
    [GRAPHIC] [TIFF OMITTED] TR15FE05.000
    

[70 FR 7659, Feb. 15, 2005, as amended at 74 FR 50714, Oct. 1, 2009]



          Subpart C_Delegation and Redelegation of Authorities



Sec. 501.21  Delegation of authorities.

    (a) Authority and delegation. Section 105 of Reorganization Plan No. 
7 of 1961, August 12, 1961, authorizes the Commission to delegate, by 
published order or rule, any of its functions to a division of the 
Commission, an individual Commissioner, an administrative law judge, or 
an employee or employee board, including functions with respect to 
hearing, determining, ordering, certifying, reporting or otherwise 
acting as to any work, business or matter. In subpart A of this part, 
the Commission has delegated general functions, and in this subpart C it 
is delegating miscellaneous, specific authorities set forth in 
Sec. Sec. 501.23, et seq., to the delegatees designated therein, 
subject to the limitations prescribed in subsequent subsections of this 
section.
    (b) Deputies. Where bureau or office deputies are officially 
appointed, they are hereby delegated all necessary authority to act in 
the absence or incapacity of the director or chief.
    (c) Redelegation. Subject to the limitations in this section, the 
delegatees may redelegate their authorities to subordinate personnel 
under their supervision and direction; but only if this subpart is 
amended to reflect such redelegation and notice thereof is published in 
the Federal Register. Under any redelegated authority, the redelegator 
assumes full responsibility for actions taken by subordinate 
redelegatees.
    (d) Exercise of authority; policy and procedure. The delegatees and 
redelegatees shall exercise the authorities delegated or redelegated in 
a manner consistent with applicable laws and the established policies of 
the Commission, and shall consult with the General Counsel where 
appropriate.
    (e) Exercise of delegated authority by delegator. Under any 
authority delegated or redelegated, the delegator (Commission), or the 
redelegator, respectively, shall retain full rights to exercise the 
authority in the first instance.
    (f) Review of delegatee's action. The delegator (Commission) or 
redelegator of authority shall retain a discretionary right to review an 
action taken under delegated authority by a subordinate delegatee, 
either upon the filing of a written petition of a party to, or an 
intervenor in, such action; or upon the delegator's or redelegator's own 
initiative.

[[Page 14]]

    (1) Petitions for review of actions taken under delegated authority 
shall be filed within ten (10) calendar days of the action taken:
    (i) If the action for which review is sought is taken by a 
delegatee, the petition shall be addressed to the Commission pursuant to 
Sec. 502.69 of this chapter.
    (ii) If the action for which review is sought is taken by a 
redelegatee, the petition shall be addressed to the redelegator whose 
decision can be further reviewed by the Commission under paragraph 
(f)(1)(i) of this section, unless the Commission decides to review the 
matter directly, such as, for example, in the incapacity of the 
redelegator.
    (2) The vote of a majority of the Commission less one member thereof 
shall be sufficient to bring any delegated action before the Commission 
for review under this paragraph.
    (g) Action--when final. Should the right to exercise discretionary 
review be declined or should no such review be sought under paragraph 
(f) of this section, then the action taken under delegated authority 
shall, for all purposes, including appeal or review thereof, be deemed 
to be the action of the Commission.
    (h) Conflicts. Where the procedures set forth in this section 
conflict with law or any regulation of this chapter, the conflict shall 
be resolved in favor of the law or other regulation.



Sec. 501.22  [Reserved]



Sec. 501.23  Delegation to the General Counsel.

    The authority listed in this section is delegated to the General 
Counsel: authority to classify carriers within the meaning of section 
3(8) of the Shipping Act of 1984 (46 U.S.C. 40102(8)), except where a 
carrier submits a rebuttal statement pursuant to Sec. 565.3(b) of this 
chapter.

[70 FR 7659, Feb. 15, 2005, as amended at 74 FR 50714, Oct. 1, 2009]



Sec. 501.24  Delegation to the Secretary.

    The authorities listed in this section are delegated to the 
Secretary and, in the absence or preoccupation of the Secretary, to the 
Assistant Secretary.
    (a) Authority to approve applications for permission to practice 
before the Commission and to issue admission certificates to approved 
applicants.
    (b) Authority to extend the time to file exceptions or replies to 
exceptions, and the time for Commission review, relative to initial 
decisions of administrative law judges and decisions of Special Dockets 
Officers.
    (c) Authority to extend the time to file appeals or replies to 
appeals, and the time for Commission review, relative to dismissals of 
proceedings, in whole or in part, issued by administrative law judges.
    (d) Authority to establish and extend or reduce the time:
    (1) To file documents either in docketed proceedings or relative to 
petitions filed under Part 502 of this chapter, which are pending before 
the Commission itself; and
    (2) To issue initial and final decisions under Sec. 502.61 of this 
chapter.
    (e) Authority to prescribe a time limit for the submission of 
written comments with reference to agreements filed pursuant to section 
5 of the Shipping Act of 1984 (46 U.S.C. 40301(d)-(e), 40302-40303, 
40305).
    (f) Authority, in appropriate cases, to publish in the Federal 
Register notices of intent to prepare an environmental assessment and 
notices of finding of no significant impact.
    (g) Authority to prescribe a time limit less than ten days from date 
published in the Federal Register for filing comments on notices of 
intent to prepare an environmental assessment and notice of finding of 
no significant impact and authority to prepare environmental assessments 
of no significant impact.
    (h) Authority, in the absence or preoccupation of the Managing 
Director, to sign travel orders, nondocketed recommendations to the 
Commission, and other routine documents for the Managing Director, 
consistent with the programs, policies, and precedents established by 
the Commission or the Managing Director.

[70 FR 7659, Feb. 15, 2005, as amended at 74 FR 50714, Oct. 1, 2009; 74 
FR 54913, Oct. 26, 2009; 75 FR 29454, May 26, 2010]

[[Page 15]]



Sec. 501.25  Delegation to and redelegation by the Managing Director.

    The authorities listed in this section are delegated to the Managing 
Director.
    (a) Authority to adjudicate, with the concurrence of the General 
Counsel, and authorize payment of, employee claims for not more than 
$1,000.00, arising under the Military and Civilian Personnel Property 
Act of 1964, 31 U.S.C. 3721.
    (b) Authority to determine that an exigency of the public business 
is of such importance that annual leave may not be used by employees to 
avoid forfeiture before annual leave may be restored under 5 U.S.C. 
6304.
    (c)(1) Authority to approve, certify, or otherwise authorize those 
actions dealing with appropriations of funds made available to the 
Commission including allotments, fiscal matters, and contracts relating 
to the operation of the Commission within the laws, rules, and 
regulations set forth by the Federal Government.
    (2) The authority under paragraph (c)(1) of this section is 
redelegated to the Director, Office of Budget and Finance.
    (d)(1) Authority to classify all positions GS-1 through GS-15 and 
wage grade positions.
    (2) The authority under paragraph (d)(1) of this section is 
redelegated to the Director, Office of Human Resources.

[75 FR 29454, May 26, 2010]



Sec. 501.26  Delegation to and redelegation by the Director, Bureau of
Certification and Licensing.

    Except where specifically redelegated in this section, the 
authorities listed in this section are delegated to the Director, Bureau 
of Certification and Licensing.
    (a) Authority to:
    (1) Approve or disapprove applications for OTI licenses; issue or 
reissue or transfer such licenses; and approve extensions of time in 
which to furnish the name(s) and ocean transportation intermediary 
experience of the managing partner(s) or officer(s) who will replace the 
qualifying partner or officer upon whose qualifications the original 
licensing was approved;
    (2) Issue a letter stating that the Commission intends to deny an 
OTI application, unless within 20 days applicant requests a hearing to 
show that denial of the application is unwarranted; deny applications 
where an applicant has received such a letter and has not requested a 
hearing within the notice period; and rescind, or grant extensions of, 
the time specified in such letters;
    (3) Revoke the license of an OTI upon the request of the licensee;
    (4) Upon receipt of notice of cancellation of any instrument 
evidencing financial responsibility, notify the licensee in writing that 
its license will automatically be suspended or revoked, effective on the 
cancellation date of such instrument, unless new or reinstated evidence 
of financial responsibility is submitted and approved prior to such 
date, and subsequently order such suspension or revocation for failure 
to maintain proof of financial responsibility;
    (5) Revoke the ocean transportation intermediary license of a non-
vessel-operating common carrier not in the United States for failure to 
designate and maintain a person in the United States as legal agent for 
the receipt of judicial and administrative process;
    (6) Approve changes in an existing licensee's organization; and
    (7) Return any application which on its face fails to meet the 
requirements of the Commission's regulations, accompanied by an 
explanation of the reasons for rejection.
    (8) The authorities contained in paragraphs (a)(3) and (a)(4) of 
this section are redelegated to the Director, Office of Transportation 
Intermediaries, in the Bureau of Certification and Licensing.
    (b) Authority to:
    (1) Approve applications for Certificates (Performance) and 
Certificates (Casualty) for passenger vessels, evidenced by a surety 
bond, guaranty or insurance policy, or combination thereof; and issue, 
reissue, or amend such Certificates;
    (2) Issue a written notice to an applicant stating intent to deny an 
application for a Certificate (Performance) and/or (Casualty), 
indicating the reason therefor, and advising applicant of

[[Page 16]]

the time for requesting a hearing as provided for under Sec. 540.26(c) 
of this chapter; deny any application where the applicant has not 
submitted a timely request for a hearing; and rescind such notices and 
grant extensions of the time within which a request for hearing may be 
filed;
    (3) Issue a written notice to a certificant stating that the 
Commission intends to revoke, suspend, or modify a Certificate 
(Performance) and/or (Casualty), indicating the reason therefor, and 
advising of the time for requesting a hearing as provided for under 
Sec. 540.26(c) of this chapter; revoke, suspend or modify a Certificate 
(Performance) and/or (Casualty) where the certificant has not submitted 
a timely request for hearing; and rescind such notices and grant 
extensions of time within which a request for hearing may be filed;
    (4) Revoke a Certificate (Performance) and/or (Casualty) which has 
expired, and/or upon request of, or acquiescence by, the certificant; 
and
    (5) Notify a certificant when a Certificate (Performance) and/or 
(Casualty) has become null and void in accordance with Sec. Sec. 
540.8(a) and 540.26(a) of this chapter.
    (c) Authority to approve amendments to escrow agreements filed under 
Sec. 540.5(b) of this Chapter when such amendments are for the purpose 
of changing names of principals, changing the vessels covered by the 
escrow agreement, changing the escrow agent, and changing the amount of 
funds held in escrow, provided that the changes in amount of funds 
result in an amount of coverage that complies with the requirements in 
the introductory text of Sec. 540.5 of this Chapter.
    (d) Authority to the Director, Bureau of Certification and Licensing 
to grant requests to substitute alternative financial responsibility 
pursuant to Sec. 540.9(l) of this chapter based upon existing 
protection available to purchases of passenger vessel transportation by 
credit card by an amount up to fifty (50) percent of the passenger 
vessel operator's highest two-year unearned passenger revenues.

[70 FR 7659, Feb. 15, 2005, as amended at 70 FR 44866, Aug. 4, 2005; 78 
FR 13277, Feb. 27, 2013]



Sec. 501.27  Delegation to and redelegation by the Director, Bureau of
Trade Analysis.

    Except where specifically redelegated in this section, the 
authorities listed in this section are delegated to the Director, Bureau 
of Trade Analysis.
    (a) Authority to determine that no action should be taken to prevent 
an agreement or modification to an agreement from becoming effective 
under section 6(c)(1), and to shorten the review period under section 
6(e), of the Shipping Act of 1984 (46 U.S.C. 40304 (c)(1) and (e)(1)), 
when the agreement or modification involves solely a restatement, 
clarification or change in an agreement which adds no new substantive 
authority beyond that already contained in an effective agreement. This 
category of agreement or modification includes, for example, the 
following: a restatement filed to conform an agreement to the format and 
organization requirements of Part 535 of this chapter; a clarification 
to reflect a change in the name of a country or port or a change in the 
name of a party to the agreement; a correction of typographical or 
grammatical errors in the text of an agreement; a change in the title of 
persons or committees designated in an agreement; or a transfer of 
functions from one person or committee to another.
    (b) Authority to grant or deny applications filed under Sec. 
535.406 of this chapter for waiver of the form, organization and content 
requirements of Sec. Sec. 535.401, 535.402, 535.403, 535.404 and 
535.405 of this chapter.
    (c) Authority to grant or deny applications filed under Sec. 
535.504 of this chapter for waiver of the Information Form requirements 
in subpart E of part 535.
    (d) Authority to grant or deny applications filed under Sec. 
535.705 of this chapter for waiver of the reporting requirements in 
subpart G of part 535 of this chapter.
    (e) Authority to determine that no action should be taken to prevent 
an agreement or modification of an agreement from becoming effective 
under section 6(c)(1) of the Shipping Act of 1984 (46 U.S.C. 40304 
(c)(1) for all unopposed agreements and modifications to agreements 
which will not result in a

[[Page 17]]

significant reduction in competition. Agreements which are deemed to 
have the potential to result in a significant reduction in competition 
and which, therefore, are not covered by this delegation include but are 
not limited to:
    (1) New agreements authorizing the parties to collectively discuss 
or fix rates (including terminal rates).
    (2) New agreements authorizing the parties to pool cargoes or 
revenues.
    (3) New agreements authorizing the parties to establish a joint 
service or consortium.
    (4) New equal access agreements.
    (f) Authority to grant or deny shortened review pursuant to Sec. 
535.605 of this chapter for agreements for which authority is delegated 
in paragraph (e) of this section.
    (g) Subject to review by the General Counsel, authority to deny, but 
not approve, requests filed pursuant to Sec. 535.605 of this chapter 
for a shortened review period for agreements for which authority is not 
delegated under paragraph (e) of this section.
    (h) Authority to issue notices of termination of agreements which 
are otherwise effective under the Shipping Act of 1984, after 
publication of notice of intent to terminate in the Federal Register, 
when such terminations are:
    (1) Requested by the parties to the agreement;
    (2) Deemed to have occurred when it is determined that the parties 
are no longer engaged in activity under the agreement and official 
inquiries and correspondence cannot be delivered to the parties; or
    (3) Deemed to have occurred by notification of the withdrawal of the 
next to last party to an agreement without notification of the addition 
of another party prior to the effective date of the next to last party's 
withdrawal.
    (i) Authority to determine whether agreements for the use or 
operation of terminal property or facilities, or the furnishing of 
terminal services, are within the purview of section 5 of the Shipping 
Act of 1984 (46 U.S.C. 40301 (d)-(e), 40302-40303, 40305).
    (j) Authority to request controlled carriers to file justifications 
for existing or proposed rates, charges, classifications, rules or 
regulations, and to review responses to such requests for the purpose of 
recommending to the Commission that a rate, charge, classification, rule 
or regulation be found unlawful and, therefore, requires Commission 
action under section 9(d) of the Shipping Act of 1984 (46 U.S.C. 
40704(b)-(e)).
    (k) Authority to recommend to the Commission the initiation of 
formal proceedings or other actions with respect to suspected violations 
of the shipping statutes and rules and regulations of the Commission.
    (l)(1) Authority to approve for good cause or disapprove special 
permission applications submitted by common carriers, or conferences of 
such carriers, subject to the provisions of section 8 of the Shipping 
Act of 1984 (46 U.S.C. 40501-40503), for relief from statutory and/or 
Commission tariff requirements.
    (2) The authority under this paragraph is redelegated to the 
Director, Office of Service Contracts and Tariffs, in the Bureau of 
Trade Analysis.
    (m)(1) Authority to approve or disapprove special permission 
applications submitted by a controlled carrier subject to the provisions 
of section 9 of the Shipping Act of 1984 (46 U.S.C. 40701-40706) for 
relief from statutory and/or Commission tariff requirements.
    (2) The authority under this paragraph is redelegated to the 
Director, Office of Service Contracts and Tariffs, in the Bureau of 
Trade Analysis.
    (n) Authority contained in Part 530 of this chapter to approve, but 
not deny, requests for permission to correct clerical or administrative 
errors in the essential terms of filed service contracts.
    (o) Authority to require Monitoring Reports from, or prescribe 
alternative periodic reporting requirements for, parties to agreements 
under Sec. Sec. 535.702(c) and (d) of this chapter.
    (p) Authority to require parties to agreements subject to the 
Monitoring Report requirements in Sec. 535.702(a)(2) of this chapter to 
report their agreement commodity data on a sub-trade basis pursuant to 
Sec. 535.703(d) of this chapter.

[70 FR 7659, Feb. 15, 2005; 72 FR 15613, Apr. 2, 2007, as amended at 74 
FR 50714, Oct. 1, 2009]

[[Page 18]]



Sec. 501.28  Delegation to the Director, Bureau of Enforcement.

    The authorities listed in this section are delegated to the 
Director, Bureau of Enforcement.
    (a) As set forth in Sec. 502.604(g) of this chapter, the Director, 
Bureau of Enforcement, has the delegated authority to issue Notice and 
Demand Letters and to compromise civil penalty claims, subject to the 
prior approval of the Managing Director. This delegation shall include 
the authority to compromise issues relating to the retention, 
suspension, or revocation of ocean transportation intermediary licenses.
    (b) [Reserved]

[70 FR 7659, Feb. 15, 2005, as amended at 75 FR 29454, May 26, 2010]



                Subpart D_Public Requests for Information



Sec. 501.41  Public requests for information and decisions.

    (a) General. Pursuant to 5 U.S.C. 552(a)(1)(A), there is hereby 
stated and published for the guidance of the public the established 
places at which, the officers from whom, and the methods whereby, the 
public may secure information, make submittals or requests, or obtain 
decisions, principally by contacting by telephone, in writing, or in 
person, either the Secretary of the Commission at the Federal Maritime 
Commission, 800 North Capitol Street, NW., Washington, DC 20573, or the 
Area Representatives listed in paragraph (c) of this section. See also 
Part 503 of this chapter.
    (b) The Secretary will provide information and decisions, and will 
accept and respond to requests, relating to the program activities of 
the Office of the Secretary and of the Commission generally. Unless 
otherwise provided in this chapter, any document, report, or other 
submission required to be filed with the Commission by statute or the 
Commission's rules and regulations relating to the functions of the 
Commission or of the Office of the Secretary shall be filed with or 
submitted to the Secretary.
    (c) The Directors of the following bureaus and offices will provide 
information and decisions, and will accept and respond to requests, 
relating to the specific functions or program activities of their 
respective bureaus and offices as set forth in this chapter; but only if 
the dissemination of such information or decisions is not prohibited by 
statute or the Commission's Rules of Practice and Procedure:
    (1) Office of the Secretary;
    (2) Office of the General Counsel;
    (3) Office of Administrative Law Judges;
    (4) Office of Equal Employment Opportunity;
    (5) Office of the Inspector General;
    (6) Office of Consumer Affairs and Dispute Resolution Services;
    (7) Office of the Managing Director;
    (i) Office of Budget and Finance;
    (ii) Office of Human Resources;
    (iii) Office of Information Technology;
    (iv) Office of Management Services;
    (v) Bureau of Certification and Licensing;
    (vi) Bureau of Trade Analysis;
    (vii) Bureau of Enforcement; and
    (viii) Area Representatives will provide information and decisions 
to the public within their geographic areas, or will expedite the 
obtaining of information and decisions from headquarters. The addresses 
of these Area Representatives are as follows. Further information on 
Area Representatives, including Internet e-mail addresses, can be 
obtained on the Commission's Web site at http://www.fmc.gov.

Houston Area Representative, 650 Sam Houston Parkway, 230, 
Houston, TX 77060-5908.

Los Angeles Area Representative, P.O. Box 230, 839 South Beacon Street, 
Room 320, San Pedro, CA 90733-0230.
New Orleans Area Representative, P.O. Box 700, Saint Rose, LA 70087-
0700.

New York Area Representative, Building No. 75, Room 205B, JFK 
International Airport, Jamaica, NY 11430-1827.

Seattle Area Representative, The Fabulich Center, Suite 508, 3600 Port 
of Tacoma Road, Tacoma, WA 98424-1044.

South Florida Area Representative, P.O. Box 813609, Hollywood, FL 33081-
3609.

    (d) Submissions to bureaus and offices. Any document, report or 
other submission required to be filed with the Commission by statute or 
the Commission's rules and regulations relating to the specific 
functions of the bureaus and

[[Page 19]]

offices shall be filed with or submitted to the Director of such Bureau 
or Office.

[70 FR 7659, Feb. 15, 2005, as amended at 75 FR 29454, May 26, 2010]



 Sec. Appendix A to Part 501--Federal Maritime Commission Organization 
                                  Chart
[GRAPHIC] [TIFF OMITTED] TR03JN10.006


[75 FR 31321, June 3, 2010]



PART 502_RULES OF PRACTICE AND PROCEDURE--Table of Contents



                      Subpart A_General Information

Sec.
502.1 Scope of rules in this part.
502.2 Filing of documents.
502.3 Compliance with rules or orders of Commission.
502.4 Authentication of rules or orders of Commission.
502.5 Documents containing confidential materials.
502.6 Verification of documents.
502.7 Documents in foreign languages.
502.8 Denial of applications and notice thereof.
502.9 Suspension, amendment, etc., of rules in this part.
502.10 Waiver of rules in this part.
502.11 Ex parte communications.
502.12 Applicability of Federal Rules of Civil Procedure.
502.13 Privacy protection for filings made with the Commission.

         Subpart B_Appearance and Practice Before the Commission

502.21 Appearance.
502.22 Authority for representation.
502.23 Notice of appearance; substitution and withdrawal of 
          representative.
502.24 Practice before the Commission defined.
502.25 Presiding officer.
502.26 Attorneys at law.
502.27 Persons not attorneys at law.
502.29-502.30 [Reserved]
502.31 Statement of interest.
502.32 Former employees.

Exhibit No. 1 to Subpart B [Sec. Sec. 502.23, 502.26, 502.27]--Notice 
          of Appearance

                            Subpart C_Parties

502.41 Parties; how designated.
502.42 Bureau of Enforcement.

[[Page 20]]

502.43 Substitution of parties.

                          Subpart D_Rulemaking

502.51 Initiation of procedure to issue, amend, or repeal a rule.
502.52 Notice of proposed rulemaking.
502.53 Participation in rulemaking.
502.54 Contents of rules.
502.55 Effective date of rules.
502.56 Negotiated rulemaking.
502.57 Service by parties of pleadings and other documents.

           Subpart E_Proceedings; Pleadings; Motions; Replies

502.61 Proceedings.
502.62 Private party complaints for formal adjudication.
502.63 Commission enforcement action.
502.64 Alternative dispute resolution.
502.65 Decision on default.
502.66 Amendments or supplements to pleadings.
502.67 Motion for more definite statement.
502.68 Motion for leave to intervene.
502.69 Motions.
502.70 Procedure for dispositive motions.
502.71 Procedure for non-dispositive motions.
502.72 Dismissals.
502.73 Order to show cause.
502.74 Exemption procedures--general.
502.75 Declaratory orders and fee.
502.76 Petitions--general and fee.
502.77 Proceedings involving assessment agreements.
502.78 Brief of an amicus curiae.
502.79 Consolidation of proceedings.

               Subpart F_Settlement; Prehearing Procedure

502.91 Opportunity for informal settlement.
502.92 [Reserved]
502.94 Prehearing conference.
502.95 Prehearing statements.

Exhibit No. 1 to Subpart F [Sec. 502.92] [Reserved]

                             Subpart G_Time

502.101 Computation.
502.102 Enlargement of time to file documents.
502.103 Reduction of time to file documents.
502.104 Postponement of hearing.
502.105 Waiver of rules governing enlargements of time and postponements 
          of hearings.

           Subpart H_Form, Execution, and Service of Documents

502.111-502.112 [Reserved]
502.113 Service by the Commission.
502.114 Service by parties of pleadings and other documents.
502.115 Service on attorney or other representative.
502.116 Date of service.
502.117 Certificate of service.
502.118 Copies of documents for use of the Commission.

                           Subpart I_Subpoenas

502.131 Requests; issuance.
502.132 Motions to quash or modify.
502.133 Attendance and mileage fees.
502.134 Service of subpoenas.
502.135 Subpoena of Commission staff personnel, documents or things.
502.136 Enforcement.

            Subpart J_Hearings; Presiding Officers; Evidence

502.141 Hearings not required by statute.
502.142 Hearings required by statute.
502.143 Notice of nature of hearing, jurisdiction and issues.
502.144 Notice of time and place of hearing; postponement of hearing.
502.145-502.149 [Reserved]
502.150 Further evidence required by presiding officer during hearing.
502.151 Exceptions to rulings of presiding officer unnecessary.
502.152 Offer of proof.
502.153 Appeal from ruling of presiding officer other than orders of 
          dismissal in whole or in part.
502.154 Rights of parties as to presentation of evidence.
502.155 Burden of proof.
502.156 Evidence admissible.
502.157 Written evidence.
502.158 Documents containing matter not material.
502.159 [Reserved]
502.160 Records in other proceedings.
502.161 Commission's files.
502.162 Stipulations.
502.163 Receipt of documents after hearing.
502.164 Oral argument at hearings.
502.165 Official transcript.
502.166 Corrections of transcript.
502.167 Objection to public disclosure of information.
502.168 Copies of data or evidence.
502.169 Record of decision.

                      Subpart K_Shortened Procedure

502.181 Selection of cases for shortened procedure; consent required.
502.182 Complaint and memorandum of facts and arguments and filing fee.
502.183 Respondent's answering memorandum.
502.184 Complainant's memorandum in reply.

[[Page 21]]

502.185 Service of memoranda upon and by interveners.
502.186 Contents of memoranda.
502.187 Procedure after filing of memoranda.

                   Subpart L_Disclosures and Discovery

502.201 Duty to disclose; general provisions governing discovery.
502.202 Persons before whom depositions may be taken.
502.203 Depositions by oral examination.
502.204 Depositions by written questions.
502.205 Interrogatories to parties.
502.206 Producing documents, electronically stored information, and 
          tangible things, or entering onto land, for inspection and 
          other purposes.
502.207 Requests for admission.
502.208 Use of discovery procedures directed to Commission staff 
          personnel.
502.209 Use of depositions at hearings.
502.210 Motions to compel initial disclosures or compliance with 
          discovery requests; failure to comply with order to make 
          disclosure or answer or produce documents; sanctions; 
          enforcement.

     Subpart M_Briefs; Requests for Findings; Decisions; Exceptions

502.221 Briefs; requests for findings.
502.222 Requests for enlargement of time for filing briefs.
502.223 Decisions--Administrative law judges.
502.224 Separation of functions.
502.225 Decisions--Commission.
502.226 Decision based on official notice; public documents.
502.227 Exceptions to decisions or orders of dismissal of administrative 
          law judges; replies thereto; and review of decisions or orders 
          of dismissal by Commission.
502.228 Request for enlargement of time for filing exceptions and 
          replies thereto.
502.229 Certification of record by presiding or other officer.
502.230 Reopening by presiding officer or Commission.

         Subpart N_Oral Argument; Submission for Final Decision

502.241 Oral argument.
502.242 Submission to Commission for final decision.
502.243 Participation of absent Commissioner.

                          Subpart O_Reparation

502.251 Proof on award of reparation.
502.252 Reparation statements.
502.253 Interest in reparation proceedings.
502.254 Attorney's fees in reparation proceedings.

Exhibit No. 1 to Subpart O [Sec. 502.252]--Reparation Statement To Be 
          Filed Pursuant to Rule 252

                Subpart P_Reconsideration of Proceedings

502.261 Petitions for reconsideration and stay.
502.262 Reply to petition for reconsideration or stay.

              Subpart Q_Refund or Waiver of Freight Charges

502.271 Special docket application for permission to refund or waive 
          freight charges.

Exhibit No. 1 to Subpart Q [Sec. 502.271(d)]--Application for Refund or 
          Waiver of Freight Charges Due to Tariff on Quoting Error

                Subpart R_Nonadjudicatory Investigations

502.281 Investigational policy.
502.282 Initiation of investigations.
502.283 Order of investigation.
502.284 By whom conducted.
502.285 Investigational hearings.
502.286 Compulsory process.
502.287 Depositions.
502.288 Reports.
502.289 Noncompliance with investigational process.
502.290 Rights of witness.
502.291 Nonpublic proceedings.

      Subpart S_Informal Procedure for Adjudication of Small Claims

502.301 Statement of policy.
502.302 Limitations of actions.
502.303 [Reserved]
502.304 Procedure and filing fee.
502.305 Applicability of other rules of this part.

Exhibit No. 1 to Subpart S [Sec. 502.304(a)]--Small Claim Form for 
          Informal Adjudication and Information Checklist
Exhibit No. 2 to Subpart S [Sec. 502.304(e)]--Respondent's Consent Form 
          for Informal Adjudication

       Subpart T_Formal Procedure for Adjudication of Small Claims

502.311 Applicability.
502.312 Answer to complaint.
502.313 Reply of complainant.
502.314 Additional information.
502.315 Request for oral hearing.
502.316 Intervention.
502.317 Oral argument.
502.318 Decision.
502.319 Date of service and computation of time.

[[Page 22]]

502.320 Service.
502.321 Applicability of other rules of this part.

                Subpart U_Alternative Dispute Resolution

502.401 Policy.
502.402 Definitions.
502.403 General authority.
502.404 Neutrals.
502.405 Confidentiality.
502.406 Arbitration.
502.407 Authority of the arbitrator.
502.408 Conduct of arbitration proceedings.
502.409 Arbitration awards.
502.410 Representation of parties.
502.411 Mediation and other alternative means of dispute resolution.

     Subpart V_Implementation of the Equal Access to Justice Act in 
                         Commission Proceedings

502.501 General provisions.
502.502 Information required from applicants.
502.503 Procedures for considering petitions.

Subpart W_Compromise, Assessment, Mitigation, Settlement, and Collection 
                           of Civil Penalties

502.601 Purpose and scope.
502.602 Definitions.
502.603 Assessment of civil penalties: Procedure; criteria for 
          determining amount; limitations; relation to compromise.
502.604 Compromise of penalties: Relation to assessment proceedings.
502.605 Payment of penalty: Method; default.

Appendix A to Subpart W--Example of Compromise Agreement To Be Used 
          Under 46 CFR 502.604

                    Subpart X_Paperwork Reduction Act

502.991 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 571-
596; 5 U.S.C. 571-584; 18 U.S.C. 207; 28 U.S.C. 2112(a); 31 U.S.C. 9701; 
46 U.S.C. 305, 40103-40104, 40304, 40306, 40501-40503, 40701-40706, 
41101-41109, 41301-41309, 44101-44106; E.O. 11222 of May 8, 1965.

    Source: 49 FR 44369, Nov. 6, 1984, unless otherwise noted.



                      Subpart A_General Information



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. They shall be construed to 
secure the just, speedy, and inexpensive determination of every 
proceeding. To this end, all persons involved in proceedings conducted 
under the rules of this part shall be required to consider at an early 
stage of the proceeding whether resort to alternative dispute resolution 
techniques would be appropriate or useful. [Rule 1.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 
FR 7807, Feb. 17, 1999]



Sec. 502.2  Filing of documents.

    (a) Requirement for filing. Documents relating to any matter pending 
before the Commissioners for decision or to any matter pending before 
the Commission which is likely to come before the Commissioners for 
decision, whether or not relating to proceedings governed by this part, 
must be filed with the Secretary, Federal Maritime Commission. Such 
documents should not be filed with or separately submitted to the 
offices of individual Commissioners. Distribution to Commissioners and 
other agency personnel is handled by the Office of the Secretary to 
ensure that persons in decision-making and advisory positions receive 
identical copies of submissions in a uniform and impersonal manner and 
to avoid the possibility of ex parte communications within the meaning 
of Sec. 502.11. These considerations apply to informal and oral 
communications as well, such as requests for expedited consideration.
    (b) Date and time of filing. (1) Documents may be hand-delivered at 
the Commission during normal business hours from 8:30 a.m. to 5 p.m., 
Monday through Friday.
    (2) Except with respect to initial filing of complaints pursuant to 
Sec. Sec. 502.62 and 502.63, and claims pursuant to Sec. Sec. 502.301 
and 502.302, the date of filing shall be either the date on which the

[[Page 23]]

pleading, document, or paper is physically delivered to the Commission 
by a party, the date on which a party certifies it to have been 
deposited in the mail or delivered to a courier, or the date of e-mail 
transmission.
    (c) Place of filing. Except for exhibits filed pursuant to Sec. 
502.118(b)(4) and petitions for review of final agency orders served on 
the Commission pursuant to 28 U.S.C. 2112(a), all documents required to 
be filed in, and correspondence relating to proceedings governed by this 
part must be addressed and delivered to ``Secretary, Federal Maritime 
Commission, 800 N. Capitol Street, NW., Washington, DC 20573-0001'' or 
to secretary@fmc.gov.
    (d) Service of petition for review of Commission order. Petitions 
for review of final agency orders served on the Commission pursuant to 
28 U.S.C. 2112(a) must be addressed and delivered to ``General Counsel, 
Office of the General Counsel, Federal Maritime Commission, 800 N. 
Capitol Street, NW., Washington, DC 20573-0001.''
    (e) Number of copies. Parties filing documents in proceedings before 
the Commission or an administrative law judge must file an original, 
signed document and five (5) copies, and, if possible, a PDF of the 
document. The PDF document should be sent by e-mail to secretary@fmc.gov 
or submitted on an electronic storage device (such as compact disc or 
USB flash drive).
    (f) E-mail transmission of filings. (1) Initial filing of complaints 
and claims pursuant to Sec. Sec. 502.62-502.63 and 502.301-502.302 must 
be accomplished in the traditional manner on paper, rather than by e-
mail.
    (2) Pursuant to Sec. 502.5 of this subpart, confidential filings 
must be accomplished in the traditional manner on paper, rather than by 
e-mail.
    (3) If a filing is submitted electronically as a PDF attached to an 
e-mail, the original, signed document, and five (5) copies must be 
received by the Secretary within seven working days. The e-mail 
transmitting the PDF copy of a document must include a certification by 
the filing party that the electronic copy is a true and correct copy of 
the paper original, and that the paper signed original and five (5) 
copies are being filed with the Secretary of the Commission. The e-mail 
Subject Line must include the docket number of the proceeding and be 
sent to secretary@fmc.gov.
    (g) Filing after announcement of Commission meeting prohibited. No 
filings relating to matters scheduled for a Commission meeting will be 
accepted by the Secretary if submitted subsequent to public announcement 
of the particular meeting, except that the Commission, on its own 
initiative, or pursuant to a written request, may in its discretion, 
permit a departure from this limitation for exceptional circumstances. 
(See Sec. 503.82(e) of this chapter.)
    (h) Return of rejected filings. Any pleading, document, writing, or 
other paper submitted for filing which is rejected because it does not 
conform to the rules in this part will be returned to the sender.
    (i) Continuing obligation to provide contact information. All 
parties and representatives are under a continuing obligation to provide 
the Commission and all other parties in a proceeding with accurate and 
current contact information including a street address, telephone 
number, and e-mail address.
    (j) Form of documents. All papers to be filed under the rules in 
this part must be clear and legible, dated, show the docket number and 
title of the proceeding, document title, and include the title, if any, 
and address of the authorized signer or representative. 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 of fifty or 
more words should be single-spaced and indented on the left and right 
without quotation marks. The paper must be strong and durable, of letter 
size (8\1/2\ x 11 in. or 215.9 x 279.4 mm) or A4 size (8.27 x 11.69 in. 
or 210 x 297 mm), with a margin of at least one inch on all four sides. 
Documents must be printed in clear type, and the type size, including 
footnotes and endnotes, must not be smaller than 12-point.
    (k) Discovery materials excluded from filing requirement. (1) The 
following discovery requests and responses must not be filed with the 
Secretary until they

[[Page 24]]

are used in the proceeding, or the Commission or presiding officer 
orders filing:
    (i) Notice and transcript of depositions;
    (ii) Interrogatories;
    (iii) Requests for documents or tangible things or to permit entry 
onto designated land or other property;
    (iv) Requests for admission; and
    (v) Expert witness reports.
    (2) The party that served the notice of deposition or discovery 
papers must preserve and ensure the integrity of original transcripts 
and discovery papers for use by the Commission or the presiding officer. 
A party that wants to use any part or all of discovery requests and 
responses in the proceeding must include the part or all of the 
documents in an appendix to be filed with the motion or other paper that 
refers to those documents. A party filing an appendix exceeding 100 
pages should file an original and two (2) copies on paper and, if 
possible, also file such appendix by e-mail or on an electronic storage 
device. [Rule 2.]

[76 FR 10259, Feb. 24, 2011]



Sec. 502.3  Compliance with rules or orders of Commission.

    Persons named in a rule or order shall notify the Commission during 
business hours on or before the day on which such rule or order becomes 
effective whether they have complied therewith, and if so, the manner in 
which compliance has been made. [Rule 3.]

[76 FR 10260, Feb. 24, 2011]



Sec. 502.4  Authentication of rules or orders of Commission.

    All rules or orders issued by the Commission in any proceeding 
covered by this part shall, unless otherwise specifically provided, be 
signed by the Secretary of the Commission in the name of the Commission. 
[Rule 4.]

[76 FR 10260, Feb. 24, 2011]



Sec. 502.5  Documents containing confidential materials.

    Except as otherwise provided in the rules of this part, all filings 
that contain information previously designated as confidential pursuant 
to Sec. Sec. 502.13, 502.167, 502.201(i)(1)(vii), or any other rules of 
this part or for which a request for protective order pursuant to Sec. 
502.201(i) is pending, are subject to the following requirements:
    (a) Filings shall be accompanied by a transmittal letter that 
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. Confidential filings 
should not be made by e-mail.
    (b) Whenever a confidential filing is submitted, there must also be 
submitted an original and two copies 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.'' Public versions of confidential filings may be 
submitted by e-mail.
    (c) Confidential treatment afforded by this section is subject to 
the proviso that any information designated as confidential may be used 
by the administrative law judge or the Commission if deemed necessary to 
a correct decision in the proceeding. [Rule 5.]

[76 FR 10260, Feb. 24, 2011, as amended at 77 FR 61524, Oct. 10, 2012]



Sec. 502.6  Verification of documents.

    (a) If a party is represented by an attorney or other person 
qualified to practice before the Commission under the rules in this 
part, each pleading, document or other paper of such party filed with 
the Commission shall be signed by at least one person of record admitted 
to practice before the Commission in his or her individual name, whose 
address shall be stated. Except when otherwise specifically provided by 
rule or statute, such pleading, document or paper need not be verified 
or accompanied by affidavit. The signature of a person admitted or 
qualified to practice before the Commission constitutes a certificate by 
the signer that the signer has read the pleading, document or paper; 
that the signer is authorized to file it; that to the best of the 
signer's knowledge, information,

[[Page 25]]

and belief formed after reasonable inquiry, the filing is well grounded 
in fact and is warranted by existing law or a good faith argument for 
the extension, modification, or reversal of existing law; and that it is 
not interposed for any improper purpose, such as to harass or to cause 
unnecessary delay or needless increase in the cost of litigation. For a 
willful violation of this section, a person admitted or qualified to 
practice before the Commission may be subjected to appropriate 
disciplinary action.
    (b) If a party is not represented by a person admitted or qualified 
to practice before the Commission, each pleading, document or other 
paper of such party filed with the Commission shall be signed and 
verified under oath by the party or by a duly authorized officer or 
agent of the party, whose address and title shall be stated.
    (c) Wherever, under any rules of this part, any matter is required 
or permitted to be supported, evidenced, established, or proved by the 
sworn declaration, verification, certificate, statement, oath, or 
affidavit, in writing of the person making the same (other than a 
deposition under Sec. 502.203 or Sec. 502.204), such matter may, with 
like force and effect, be supported, evidenced, established, or proved 
by the unsworn declaration, certificate, verification, or statement, in 
writing of such person which is subscribed by such person, as true under 
penalty of perjury, in substantially the following form:
    (1) If executed without the United States: ``I declare (or certify, 
verify, or state) under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct.''
    (2) If executed within the United States, its territories, 
possessions, or commonwealths: ``I declare (or certify, verify, or 
state) under penalty of perjury that the foregoing is true and 
correct.'' [Rule 6.]

[76 FR 10261, Feb. 24, 2011]



Sec. 502.7  Documents in foreign languages.

    Every document, exhibit, or other paper written in a language other 
than English and filed with the Commission or offered in evidence in any 
proceeding before the Commission under this part or in response to any 
rule or order of the Commission pursuant to this part, shall be filed or 
offered in the language in which it is written and shall be accompanied 
by an English translation thereof duly verified under oath to be an 
accurate translation. [Rule 7.]



Sec. 502.8  Denial of applications and notice thereof.

    Except in affirming a prior denial or where the denial is self-
explanatory, prompt written notice will be given of the denial in whole 
or in part of any written application, petition, or other request made 
in connection with any proceeding under this part, such notice to be 
accompanied by a simple statement of procedural or other grounds for the 
denial, and of any other or further administrative remedies or recourse 
applicant may have where the denial is based on procedural grounds. 
[Rule 8.]



Sec. 502.9  Suspension, amendment, etc., of rules in this part.

    The rules in this part may, from time to time, be suspended, 
amended, or revoked, in whole or in part. Notice of any such action will 
be published in the Federal Register. [Rule 9.]



Sec. 502.10  Waiver of rules in this part.

    Except to the extent that such waiver would be inconsistent with any 
statute, any of the rules in this part, except Sec. Sec. 502.11 and 
502.153, may be waived by the Commission or the presiding officer in any 
particular case to prevent undue hardship, manifest injustice, or if the 
expeditious conduct of business so requires. [Rule 10.]



Sec. 502.11  Ex parte communications.

    (a) No person who is a party to or an agent of a party to any 
proceeding as defined in Sec. 502.61 or who directly participates in 
any such proceeding and no interested person outside the Commission 
shall make or knowingly cause to be made to any Commission member, 
administrative law judge, or Commission employee who is or may 
reasonably be expected to be involved in the

[[Page 26]]

decisional process of any such proceeding, an ex parte communication 
relevant to the merits of the proceeding;
    (b) No Commission member, administrative law judge, or Commission 
employee who is or may reasonably be expected to be involved in the 
decisional process of any agency proceeding, shall make or knowingly 
cause to be made to any interested persons outside the Commission or to 
any party to the proceeding or its agent or to any direct participant in 
a proceeding, an ex parte communication relevant to the merits of the 
proceeding. This prohibition shall not be construed to prevent any 
action authorized by paragraphs (e), (f) and (g) of this section;
    (c) ``Ex parte communication'' means an oral or written 
communication not on the public record with respect to which reasonable 
prior notice to all parties is not given, but it shall not include 
requests for status reports or communications regarding purely 
procedural matters or matters which the Commission or member thereof, 
administrative law judge, or Commission employee is authorized by law or 
these rules to dispose of on an ex parte basis;
    (d) Any Commission member, administrative law judge, or Commission 
employee who is or may reasonably be expected to be involved in the 
decisional process of any proceeding who receives, or who makes or 
knowingly causes to be made, an ex parte communication shall promptly 
transmit to the Secretary of the Commission:
    (1) All such written communications;
    (2) Memoranda stating the substance of all such oral communications; 
and
    (3) All written responses and memoranda stating the substance of all 
oral responses to the materials described in paragraphs (d)(1) and 
(d)(2) of this section;
    (e) The Secretary shall place the materials described in paragraph 
(d) of this section in the correspondence part of the public docket of 
the proceeding and may take such other action as may be appropriate 
under the circumstances;
    (f) Upon receipt of an ex parte communication knowingly made or 
knowingly caused to be made by a party to a proceeding, the Commission 
or the presiding officer may, to the extent consistent with the 
interests of justice and the policy of the statutes administered by the 
Commission, require the party to show cause why his or her claim or 
interest in the proceeding should not be dismissed, denied, disregarded, 
or otherwise adversely affected on account of the making of such 
communication;
    (g) An ex parte communication shall not constitute a part of the 
record for decision. The Commission or the presiding officer may, to the 
extent consistent with the interests of justice and the policy of the 
statutes administered by the Commission, consider a violation of 
paragraph (b) of this section sufficient grounds for a decision adverse 
to a party who has knowingly caused such violation to occur and may take 
such other action as may be appropriate under the circumstances. [Rule 
11.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 64 
FR 7807, Feb. 17, 1999; 64 FR 23551, May 3, 1999; 64 FR 33762, June 24, 
1999]



Sec. 502.12  Applicability of Federal Rules of Civil Procedure.

    In proceedings under this part, for situations which are not covered 
by a specific Commission rule, the Federal Rules of Civil Procedure will 
be followed to the extent that they are consistent with sound 
administrative practice. [Rule 12.]

[58 FR 27210, May 7, 1993, as amended at 64 FR 7807, Feb. 17, 1999]



Sec. 502.13  Privacy protection for filings made with the Commission.

    (a) Redacted filings. Unless the Commission or presiding officer 
orders otherwise, in an electronic or paper filing that contains an 
individual's social-security number, taxpayer-identification number, or 
birth date, the name of an individual known to be a minor, or a 
financial-account number, a party or nonparty making the filing may 
include only:
    (1) The last four digits of the social-security number and taxpayer-
identification number;
    (2) The year of the individual's birth;
    (3) The minor's initials; and

[[Page 27]]

    (4) The last four digits of the financial-account number.
    (b) Exemptions from the redaction requirement. The redaction 
requirement does not apply to the following:
    (1) The record of an administrative or agency proceeding;
    (2) The record of a state-court proceeding;
    (3) The record of a court or tribunal, if that record was not 
subject to the redaction requirement when originally filed; and
    (4) A filing covered by paragraph (c) of this section.
    (c) Filings made under seal. The Commission or presiding officer may 
order that a filing be made under seal without redaction. The Commission 
or presiding officer may later unseal the filing or order the person who 
made the filing to file a redacted version for the public record.
    (d) Protective orders. For good cause, the Commission or presiding 
officer may by order in a case:
    (1) Require redaction of additional information; or
    (2) Limit or prohibit a nonparty's remote electronic access to a 
document filed with the Commission.
    (e) Option for additional unredacted filing under seal. A person 
making a redacted filing may also file an unredacted copy under seal. 
The Commission must retain the unredacted copy as part of the record.
    (f) Option for filing a reference list. A filing that contains 
redacted information may be filed together with a reference list that 
identifies each item of redacted information and specifies an 
appropriate identifier that uniquely corresponds to each item listed. 
The list must be filed under seal and may be amended as of right. Any 
reference in the case to a listed identifier will be construed to refer 
to the corresponding item of information.
    (g) Waiver of protection of identifiers. A person waives the 
protection of this rule as to the person's own information by filing it 
without redaction and not under seal. [Rule 13.]

[76 FR 10261, Feb. 24, 2011]



         Subpart B_Appearance and Practice Before the Commission



Sec. 502.21  Appearance.

    (a) Parties. A party may appear in person or by an officer, partner, 
or regular employee of the party, or by or with counsel or other duly 
qualified representative, in any proceeding under the rules in this 
part. Any party or his or her representative may testify, produce and 
examine witnesses, and be heard upon brief and at oral argument if oral 
argument is granted.
    (b) Non-parties. One who appears in person before the Commission or 
a representative thereof, either by compulsion from, or request or 
permission of the Commission, shall be accorded the right to be 
accompanied, represented, and advised by counsel.
    (c) Special appearance. An appearance may be either general, that 
is, without reservation, or it may be special, that is, confined to a 
particular issue or question. A person who desires to appear specially 
must expressly so state when entering the appearance, and, at that time, 
shall also state the questions or issues to which the appearance is 
confined; otherwise the appearance will be considered general. [Rule 
21.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7807, Feb. 17, 1999; 78 
FR 45069, July 26, 2013]



Sec. 502.22  Authority for representation.

    Any individual acting in a representative capacity in any proceeding 
before the Commission may be required to show his or her authority to 
act in such capacity. [Rule 22.]



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), address(es), telephone number(s), and email 
address(es) of the person or persons who will represent the party in the 
pending proceeding. Each person who appears in a representative capacity 
in a proceeding must deliver a written notice of appearance to the 
Secretary stating for whom the appearance is made. Such

[[Page 28]]

notice must indicate whether the representative wishes to be notified of 
notices, orders and decisions by either email or facsimile transmission. 
All appearances shall be noted in the record. Motions for leave to 
intervene must indicate the name(s), address(es), telephone number(s), 
and email address(es) of the person or persons who will represent the 
intervenor in the pending proceeding if the motion is granted.
    (b) A Notice of Appearance should follow the form set forth in 
Exhibit No. 1 to this subpart.
    (c) An attorney must represent in the Notice of Appearance that he 
is admitted to practice and in good standing. A non-attorney must 
describe his or her authority to act in such capacity.
    (d) 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 with a Notice of Appearance included. 
Substitution of counsel or representative will not, by itself, be 
considered good cause for delaying a proceeding.
    (e) If an attorney wishes to withdraw from representing a party, and 
written consent is not obtained, or if the party is not otherwise 
represented, the withdrawing 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. 
[Rule 23.]

[64 FR 7807, Feb. 17, 1999, as amended at 78 FR 45069, July 26, 2013]



Sec. 502.24  Practice before the Commission defined.

    (a) Practice before the Commission shall be deemed to comprehend all 
matters connected with the presentation of any matter to the Commission, 
including the preparation and filing of necessary documents, and 
correspondence with and communications to the Commission, on one's own 
behalf or representing another. (See Sec. 502.32).
    (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.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7807, Feb. 17, 1999]



Sec. 502.25  Presiding officer.

    (a) Definition. Presiding officer includes, where applicable, one or 
more members of the Commission or an administrative law judge.
    (b) Functions and powers. The officer designated to hear a case 
shall have the following powers:
    (1) Notices of hearing, subpoenas, depositions, pleadings and scope 
of proceedings. To arrange and give notice of hearing; sign and issue 
subpoenas authorized by law; take or cause depositions to be taken; rule 
upon proposed amendments or supplements to pleadings; and, delineate the 
scope of a proceeding instituted by order of the Commission by amending, 
modifying, clarifying, or interpreting said order.
    (2) Alternative means of dispute resolution and conferences for 
settlement or simplification of issues. To inform the parties as to the 
availability of one or more alternative means of dispute resolution, 
encourage use of such methods, and require consideration of their use at 
an early state of the proceeding; hold conferences for the settlement or 
simplification of the issues by consent of the parties or by the use of 
alternative means of dispute resolution; transmit the request of parties 
for the appointment of a mediator or settlement judge, as provided by 
Sec. 502.91; and require the attendance at any such conference pursuant 
to 5 U.S.C 556(c)(8), of at least one representative of each party who 
has authority to negotiate concerning resolution of issues in 
controversy.
    (3) Hearings, evidence, procedural requests, motions, oaths and 
affirmations, and witnesses. To regulate the course of a hearing; 
prescribe the order in which evidence shall be presented; dispose of 
procedural requests or similar matters; hear and rule upon motions; 
administer oaths and affirmations; examine witnesses; direct witnesses 
to testify or

[[Page 29]]

produce evidence available to them; rule upon offers of proof and 
receive relevant, material, reliable, and probative evidence; act upon 
motions to intervene; permit submission of facts, arguments, offers of 
settlement, and proposals of adjustment; and, if the parties so request, 
issue formal opinions providing tentative evaluations of the evidence 
submitted; hear oral argument at the close of the testimony.
    (4) Time management and other matters. To fix the time for filing 
briefs, motions, and other documents to be filed in connection with 
hearings and the administrative law judge's decision thereon, except as 
otherwise provided by the rules in this part; act upon petitions for 
enlargement of time to file such documents, including answers to formal 
complaints; and dispose of any other matter that normally and properly 
arises in the course of proceedings.
    (5) Exclusion of persons from a hearing. To exclude any person from 
a hearing for disrespectful, disorderly, or inappropriate language or 
conduct.
    (c) Functions and powers pursuant to Reorganization Plan No. 7 of 
1961. 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.]
    (d) Designation of administrative law judge. An administrative law 
judge will be designated by the Chief Administrative Law Judge to 
preside at hearings required by statute, in rotation so far as 
practicable, unless the Commission or one or more members thereof shall 
preside, and will also preside at hearings not required by statute when 
designated to do so by the Commission.
    (e) Attachment of functions. In proceedings handled by the Office of 
Administrative Law Judges, its functions shall attach:
    (1) Upon the service by the Commission of a Notice of Filing of 
Complaint and Assignment of complaint filed pursuant to Sec. 502.62, or 
Sec. 502.182, or upon referral under subpart T of this part; or
    (2) Upon reference by the Commission of a petition for a declaratory 
order pursuant to Sec. 502.68; or
    (3) Upon forwarding for assignment by the Office of the Secretary of 
a special docket application pursuant to Sec. 502.271; or
    (4) Upon the initiation of a proceeding and ordering of hearing 
before an administrative law judge pursuant to Sec. 502.63.
    (f) Unavailability. If the presiding officer assigned to a 
proceeding becomes unavailable, the Commission, or Chief Judge (if such 
presiding officer was an administrative law judge), shall designate a 
qualified officer to take his or her place. Any motion predicated upon 
the substitution of a new presiding officer for one originally 
designated shall be made within ten (10) days after notice of such 
substitution.
    (g) Disqualification of presiding or participating officer. Any 
presiding or participating officer may at any time withdraw if he or she 
deems himself or herself disqualified, in which case there will be 
designated another presiding officer. If a party to a proceeding, or its 
representative, files a timely and sufficient affidavit of personal bias 
or disqualification of a presiding or participating officer, the 
Commission will determine the matter as a part of the record and 
decision in the case. [Rule 25.]

[78 FR 45069, July 26, 2013]



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 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.]

[64 FR 7807, Feb. 17, 1999, as amended at 78 FR 45069, July 26, 2013]



Sec. 502.27  Persons not attorneys at law.

    (a)(1) Any person who is not an attorney at law may be admitted to 
practice before the Commission if he or she is a

[[Page 30]]

citizen of the United States and files proof to the satisfaction of the 
Commission that he or she possesses the necessary legal, technical, or 
other qualifications to render valuable service before the Commission 
and is otherwise competent to advise and assist in the presentation of 
matters before the Commission. Applications by persons not attorneys at 
law for admission to practice before the Commission shall be made on the 
forms prescribed therefor, which may be obtained from the Secretary of 
the Commission, and shall be addressed to the Federal Maritime 
Commission, Washington, DC, 20573, and shall be accompanied by a fee as 
required by Sec. 503.43(e) of this chapter.
    (2) The application for admission to practice before the Commission 
by persons not attorneys at law can be downloaded from the Commission's 
Web site, www.fmc.gov, or acquired from the Secretary of the Commission 
and must be accompanied by a fee as required by Sec. 503.43(e) of this 
chapter. The application should be sent to the Federal Maritime 
Commission, Washington, DC 20573.
    (3) All applicants must complete the following certification:
    I. -------------------------- (Name) ------------------------, 
certify under penalty of perjury under the laws of the United States, 
that I have not been convicted, after September 1, 1989, of any Federal 
or State offense involving the distribution or possession of a 
controlled substance, or that if I have been so convicted, I am not 
ineligible to receive Federal benefits, either by court order or 
operation of law, pursuant to 21 U.S.C. 862.
    (b) The Commission, in its discretion, may call upon the applicant 
for a full statement of the nature and extent of his or her 
qualifications. If the Commission is not satisfied as to the sufficiency 
of the applicant's qualifications, it will so notify him or her by 
registered mail, whereupon he or she shall be granted a hearing upon 
request for the purpose of showing his or her qualifications. If the 
applicant presents to the Commission no request for such hearing within 
twenty (20) days after receiving the notification above referred to, his 
or her application shall be acted upon without further notice.
    (c) The Commission may deny admission to, suspend, or prohibit any 
person from practice before the Commission who it finds does not possess 
the requisite qualifications to represent others or is lacking in 
character, integrity, or proper professional conduct. Non-attorneys who 
have been admitted to practice before the Commission may be excluded 
from such practice only after being afforded an opportunity to be heard.
    (d) A non-attorney may not practice before the Commission unless and 
until an application has been approved.
    (e) Paragraph (d) of this section shall not apply, however, to any 
person who appears before the Commission on his or her own behalf or on 
behalf of any corporation, partnership, or association of which he or 
she is a partner, officer, or regular employee. [Rule 27.]

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 42194, Oct. 18, 1990; 58 
FR 58976, Nov. 5, 1993; 62 FR 6132, Feb. 11, 1997; 64 FR 7807, Feb. 17, 
1999; 76 FR 10261, Feb. 24, 2011; 78 FR 45070, July 26, 2013]



Sec. Sec. 502.29-502.30  [Reserved]



Sec. 502.31  Statement of interest.

    The Commission may call upon any practitioner for a full statement 
of the nature and extent of his or her interest in the subject matter 
presented by him or her before the Commission. [Rule 31.]



Sec. 502.32  Former employees.

    Title V of the Ethics in Government Act proscribes certain 
activities by certain former Federal employees (18 U.S.C. 207). In 
summary, as applied to former Commission employees, the restrictions and 
basic procedures are as follows:
    (a) Restrictions. (1) No former Commission employee may represent in 
any formal or informal appearance or make any oral or written 
communication with intent to influence a U.S. Government agency in a 
particular matter involving a specific party or parties in which the 
employee participated personally and substantially while with the 
Commission.
    (2) No former Commission employee may, within two years of 
terminating

[[Page 31]]

Commission employment, act as a representative in the manner described 
in paragraph (a)(1) of this section, as to a particular matter which was 
actually pending under the employee's official responsibility within one 
year prior to termination of the employment.
    (3) Former senior Commission employees (defined as Commissioners and 
members of the Senior Executive Service as designated by the Office of 
Government Ethics under 18 U.S.C. 207(d)(1)) may not, for two years 
after terminating Commission employment, assist in representing a person 
by personal presence at an appearance before the Government on a matter 
in which the former employee had participated personally and 
substantially while at the Commission.
    (4) Former senior Commission employees, as defined in paragraph 
(a)(3) of this section, are barred for one year from representing 
parties before the Commission or communicating with intent to influence 
the Commission, regardless of prior involvement in the particular 
proceeding.
    (b) Prior consent for appearance. (1) Prior to making any 
appearance, representation or communication described in paragraph (a) 
of this section, and, in addition to other requirements of this subpart, 
every former employee must apply for and obtain prior written consent of 
the Commission for each proceeding or matter in which such appearance, 
representation, or communication is contemplated. Such consent will be 
given only if the Commission determines that the appearance, 
representation or communication is not prohibited by the Act, this 
section or other provisions of this chapter.
    (2) To facilitate the Commission's determination that the intended 
activity is not prohibited, applications for written consent shall:
    (i) Be directed to the Commission, state the former connection of 
the applicant with the Commission and date of termination of employment, 
and identify the matter in which the applicant desires to appear; and
    (ii) Be accompanied by an affidavit to the effect that the matter 
for which consent is requested is not a matter in which the applicant 
participated personally and substantially while at the Commission and, 
as made applicable by paragraph (a) of this section, that the particular 
matter as to which consent is requested was not pending under the 
applicant's official responsibility within one year prior to termination 
of employment and that the matter was not one in which the former 
employee had participated personally and substantially while at the 
Commission. The statements contained in the affidavit shall not be 
sufficient if disproved by an examination of the files and records of 
the case.
    (3) The applicant shall be promptly advised as to his or her 
privilege to appear, represent or communicate in the particular matter, 
and the application, affidavit and consent, or refusal to consent, shall 
be filed by the Commission in its records relative thereto.
    (c) Reporting possible violations. Possible violations of section 
207 of Title 18 of the United States Code, 18 U.S.C. 207, by the 
Commission's former officers and employees are required to be reported 
to the Attorney General and the Office of Government Ethics, pursuant to 
the regulations of the Office of Government Ethics at 5 CFR 2641.103(a) 
and 5 CFR 2638.603.
    (d) Partners or associates. (1) In any case in which a former 
member, officer, or employee of the Commission is prohibited under this 
section from practicing, appearing, or representing anyone before the 
Commission in a particular Commission matter, any partner or legal or 
business associate of such former member, officer, or employee shall be 
prohibited from (i) utilizing the services of the disqualified former 
member, officer, or employee in connection with the matter, (ii) 
discussing the matter in any manner with the disqualified former member, 
officer, or employee, and (iii) sharing directly or indirectly with the 
disqualified former member, officer, or employee in any fees or revenues 
received for services rendered in connection with such matter.
    (2) The Commission may require any practitioner or applicant to 
become a practitioner to file an affidavit to the effect that the 
practitioner or applicant will not: (i) Utilize the service of, (ii) 
discuss the particular matter with, or (iii) share directly or 
indirectly any

[[Page 32]]

fees or revenues received for services provided in the particular 
matter, with a partner, fellow employee, or legal or business associate 
who is a former member, officer or employee of the Commission and who is 
either permanently or temporarily precluded from practicing, appearing 
or representing anyone before the Commission in connection with the 
particular matter; and that the applicant's employment is not prohibited 
by any law of the United States or by the regulations of the Commission. 
[Rule 32.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 77 
FR 61524, Oct. 10, 2012]



 Sec. Exhibit No. 1 to Subpart B [Sec. Sec. 502.23, 502.26, 502.27] of 
                     Part 502--Notice of Appearance

                       Federal Maritime Commission

    Docket No. --------------------------:
    Please enter my appearance in this proceeding as counsel for ------
------------------.
    Indicate authority for representation [choose one of the following]:
    ---- I am an attorney admitted to practice and in good standing 
before the courts of the State of ----------------------.
    ---- I am admitted to practice before the Commission pursuant to 46 
CFR 502.27.
    ---- I am an officer, director, or regular employee of the party.
    I request to be informed of service of notices, orders and decisions 
in this proceeding by [choose one of the following]:
[ ] electronic mail
[ ] facsimile transmission
[ ] regular mail
________________________________________________________________________
[Name]
________________________________________________________________________
[Address]
________________________________________________________________________
[Telephone No.]
________________________________________________________________________
[Fax No.]
________________________________________________________________________
[Email address]
________________________________________________________________________
[Signature]

[78 FR 45070, July 26, 2013]



                            Subpart C_Parties



Sec. 502.41  Parties; how designated.

    The term ``party,'' whenever used in this part, includes any natural 
person, corporation, association, firm, partnership, trustee, receiver, 
agency, public or private organization, government agency, or unit 
thereof representing said agency. A party who files a complaint under 
Sec. 502.62 shall be designated as ``complainant.'' A party against 
whom relief or other affirmative action is sought in a proceeding 
commenced under Sec. 502.62 or Sec. 502.73 or a party named in an 
order of investigation issued by the Commission shall be designated as 
``respondent,'' except that in investigations instituted under section 
11(c) of the Shipping Act of 1984, 46 U.S.C. 41302(a)-(b), 41307(b), the 
parties to the agreement shall be designated as ``proponents'' and the 
parties protesting the agreement shall be designated as ``protestants.'' 
A person who has been permitted to intervene under Sec. 502.68 shall be 
designated as ``intervenor.'' All parties and persons designated in this 
section shall be parties to the proceeding. No person other than a party 
or its representative may introduce evidence or examine witnesses at 
hearings. [Rule 41].

[78 FR 45070, July 26, 2013]



Sec. 502.42  Bureau of Enforcement.

    The Bureau of Enforcement shall be a party to proceedings upon 
designation by the Commission or upon leave to intervene granted 
pursuant to Sec. 502.68. The Bureau's representative shall be served 
with copies of all papers, pleadings, and documents in every proceeding 
in which the Bureau is a party. The Bureau shall actively participate in 
any proceeding to which it is a party, to the extent required in the 
public interest, subject to the separation of functions required by 
section 5(c) of the Administrative Procedure Act. [Rule 42]

[78 FR 45071, July 26, 2013]



Sec. 502.43  Substitution of parties.

    The Commission or presiding officer may order an appropriate 
substitution of parties in the event of a party's death, incompetence, 
transfer of its interest, or other appropriate circumstance. [Rule 43]

[78 FR 45071, July 26, 2013]

[[Page 33]]



                          Subpart D_Rulemaking



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 $241 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.]

[64 FR 7808, Feb. 17, 1999, as amended at 67 FR 39859, June 11, 2002; 70 
FR 10329, Mar. 3, 2005]



Sec. 502.52  Notice of proposed rulemaking.

    (a) General notice of proposed rulemaking, including the information 
specified in Sec. 502.143, shall be published in the Federal Register, 
unless all persons subject thereto are named and, either are personally 
served, or otherwise have actual notice thereof in accordance with law.
    (b) Except where notice or hearing is required by statute, paragraph 
(a) of this section shall not apply to interpretative rules, general 
statements of policy, rules of agency organization, procedure, or 
practice of the Commission, or when the Commission for good cause finds 
(and incorporates the findings and a brief statement of reasons therefor 
in the rules issued) that notice and public procedure are impracticable, 
unnecessary, or contrary to the public interest. [Rule 52]

[49 FR 44369, Nov. 6, 1984, as amended at 78 FR 45071, July 26, 2013]



Sec. 502.53  Participation in rulemaking.

    (a) Interested persons will be afforded an opportunity to 
participate in rulemaking through submission of written data, views, or 
arguments, with or without opportunity for oral presentation. No replies 
to the written submissions will be allowed unless, because of the nature 
of the proceeding, the Commission indicates that replies would be 
necessary or desirable for the formulation of a just and reasonable 
rule, except that, where the proposed rules are such as are required by 
statute to be made on the record after opportunity for a hearing, such 
hearing shall be conducted pursuant to 5 U.S.C. 556 and 557, and the 
procedure shall be the same as stated in subpart J of this part. In the 
event that replies or succeeding rounds of comments are permitted, 
copies shall be served on all prior participants in the proceeding. A 
list of participants may be obtained from the Secretary of the 
Commission.
    (b) In those rulemaking proceedings in which respondents are named, 
interested persons who wish to participate shall file a petition to 
intervene in accordance with the provisions of Sec. 502.72 [Rule 53.]
    (c) Where a formal hearing is held in a rulemaking proceeding, 
interested persons will be afforded an opportunity to participate 
through submission of relevant, material, reliable, and probative 
written evidence properly verified, except that such evidence submitted 
by persons not present at the hearing will not be made a part of the 
record if objected to by any party on the ground that the person who 
submits the evidence is not present for cross-examination.

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28399, July 11, 1990; 78 
FR 45071, July 26, 2013]



Sec. 502.54  Contents of rules.

    The Commission will incorporate in any publication of proposed or 
final

[[Page 34]]

rules a concise and general statement of their basis and purpose. [Rule 
54.]

[78 FR 45071, July 26, 2013]



Sec. 502.55  Effective date of rules.

    The publication or service of any substantive rule shall be made not 
less than thirty (30) days prior to its effective date except:
    (a) As otherwise provided by the Commission for good cause found 
that notice and public procedure thereon are impractical, unnecessary, 
or contrary to the public interest;
    (b) In the case of rules granting or recognizing exemption or 
relieving restriction; interpretative rules; or statements of policy.
    (c) Interpretive rules, general statements of policy, or rules of 
agency organization, procedure, or practice. [Rule 55.]

[78 FR 45071, July 26, 2013]



Sec. 502.56  Negotiated rulemaking.

    The Commission, either upon petition of interested persons or upon 
its own motion, may establish a negotiated rulemaking committee to 
negotiate and develop consensus on a proposed rule, if, upon 
consideration of the criteria of 5 U.S.C. 563, use of such a committee 
is determined by the Commission to be in the public interest. [Rule 56.]

[58 FR 38649, July 19, 1993, as amended at 64 FR 7808, Feb. 17, 1999]



Sec. 502.57  Service by parties of pleadings and other documents.

    Service on all prior commenters must be shown when submitting 
comments or replies beyond the initial round on a notice of proposed 
rulemaking. A list of all participants may be obtained from the 
Secretary of the Commission.

[78 FR 45071, July 26, 2013]



           Subpart E_Proceedings; Pleadings; Motions; Replies

    Source: 77 FR 61524, Oct. 10, 2012, unless otherwise noted.



Sec. 502.61  Proceedings.

    (a) Any person may commence a proceeding by filing a complaint (Rule 
62) for a formal adjudication under normal or shortened procedures 
(subpart K) or by filing a claim for the informal adjudication of small 
claims (subpart S). A person may also file a petition for a rulemaking 
(Rule 51), for an exemption (Rule 74), for a declaratory order (Rule 
75), or for other appropriate relief (Rule 76), which becomes a 
proceeding when the Commission assigns a formal docket number to the 
petition. The Commission may commence a proceeding for a rulemaking, for 
an adjudication (including Commission enforcement action under Sec. 
502.63), or a non-adjudicatory investigation upon petition or on its own 
initiative by issuing an appropriate order.
    (b) In the order instituting a proceeding or in the notice of filing 
of complaint and assignment, the Commission must establish dates by 
which the initial decision and the final Commission decision will be 
issued. These dates may be extended by order of the Commission for good 
cause shown. [Rule 61.]



Sec. 502.62  Private party complaints for formal adjudication.

    (a) Filing a complaint for formal adjudication. (1) A person may 
file a sworn complaint alleging violation of the Shipping Act of 1984, 
46 U.S.C. 40101 et seq.
    (2) Form. Complaints should be drafted in accordance with the rules 
in this section.
    (3) Content of complaint. The complaint must be verified and must 
contain the following:
    (i) The name, street address, and email address of each complainant, 
and the name, address, and email address of each complainant's attorney 
or representative, the name, address, and, if known, email address of 
each person against whom complaint is made;
    (ii) A recitation of the legal authority and jurisdiction for 
institution of the proceeding, with specific designation of the 
statutory provisions alleged to have been violated;
    (iii) A clear and concise factual statement sufficient to inform 
each respondent with reasonable definiteness

[[Page 35]]

of the acts or practices alleged to be in violation of the law, and a 
statement showing that the complainant is entitled to relief;
    (iv) A request for the relief and other affirmative action sought; 
and
    (v) Shipping Act violation must be alleged. If the complaint fails 
to indicate the sections of the Act alleged to have been violated or 
clearly to state facts which support the allegations, the Commission 
may, on its own initiative, require the complaint to be amended to 
supply such further particulars as it deems necessary.
    (4) Complaints seeking reparation; statute of limitations. A 
complaint may seek reparation (money damages) for injury caused by 
violation of the Shipping Act of 1984. (See subpart O of this part.)
    (i) Where reparation is sought, the complaint must set forth the 
injury caused by the alleged violation and the amount of alleged 
damages.
    (ii) Except under unusual circumstances and for good cause shown, 
reparation will not be awarded upon a complaint in which it is not 
specifically requested, nor upon a new complaint by or for the same 
complainant which is based upon a finding in the original proceeding.
    (iii) A complaint seeking reparation must be filed within three 
years after the claim accrues. Notification to the Commission that a 
complaint may or will be filed for the recovery of reparation will not 
constitute a filing within the applicable statutory period.
    (iv) Civil penalties must not be requested and will not be awarded 
in complaint proceedings.
    (5) Oral hearing. The complaint should designate whether an oral 
hearing is requested and the desired place for any oral hearing. The 
presiding officer will determine whether an oral hearing is necessary.
    (6) Filing fee. The complaint must be accompanied by remittance of a 
$221 filing fee.
    (7) A complaint is deemed filed on the date it is received by the 
Commission.
    (b) Answer to a complaint. (1) Time for filing. A respondent must 
file with the Commission an answer to the complaint and must serve the 
answer on complainant as provided in subpart H of this part within 25 
days after the date of service of the complaint by the Commission unless 
this period has been extended under Sec. 502.67 or Sec. 502.102, or 
reduced under Sec. 502.103, or unless motion is filed to withdraw or 
dismiss the complaint, in which latter case, answer must be filed within 
10 days after service of an order denying such motion. For good cause 
shown, the presiding officer may extend the time for filing an answer.
    (2) Contents of answer. The answer must be verified and must contain 
the following:
    (i) The name, address, and email address of each respondent, and the 
name, address, and email address of each respondent's attorney or 
representative;
    (ii) Admission or denial of each alleged violation of the Shipping 
Act;
    (iii) A clear and concise statement of each ground of defense and 
specific admission, denial, or explanation of facts alleged in the 
complaint, or, if respondent is without knowledge or information 
thereof, a statement to that effect; and
    (iv) Any affirmative defenses, including allegations of any 
additional facts on which the affirmative defenses are based.
    (3) Oral hearing. The answer should designate whether an oral 
hearing is requested and the desired place for such hearing. The 
presiding officer will determine whether an oral hearing is necessary.
    (4) Counterclaims, crossclaims, and third-party complaints. In 
addition to filing an answer to a complaint, a respondent may include in 
the answer a counterclaim against the complainant, a crossclaim against 
another respondent, or a third-party complaint. A counterclaim, a 
crossclaim, or a third-party complaint must allege and be limited to 
violations of the Shipping Act within the jurisdiction of the 
Commission. The service and filing of a counterclaim, a crossclaim, or a 
third-party complaint and answers or replies thereto are governed by the 
rules and requirements of this section for the filing of complaints and 
answers.
    (5) A reply to an answer may not be filed unless ordered by the 
presiding officer.

[[Page 36]]

    (6) Effect of failure to file answer. (i) Failure of a party to file 
an answer to a complaint, counterclaim, crossclaim, or third-party 
complaint within the time provided will be deemed to constitute a waiver 
of that party's right to appear and contest the allegations of the 
complaint, counterclaim, crossclaim, or third-party complaint to which 
it has not filed an answer and to authorize the presiding officer to 
enter an initial decision on default as provide for in 46 CFR 502.65. 
Well pleaded factual allegations in the complaint not answered or 
addressed will be deemed to be admitted.
    (ii) A party may make a motion for initial decision on default. 
[Rule 62.]

[77 FR 61524, Oct. 10, 2012; 77 FR 64758, Oct. 23, 2012]



Sec. 502.63  Commission enforcement action.

    (a) The Commission may issue an Order of Investigation and Hearing 
commencing an adjudicatory investigation against one or more respondents 
alleging one or more violations of the statutes that it administers.
    (b) Contents of Order of Investigation and Hearing. The Order of 
Investigation and Hearing must contain the following:
    (1) The name, street address, and, if known, email address of each 
person against whom violations are alleged;
    (2) A recitation of the legal authority and jurisdiction for 
institution of the proceeding, with specific designation of the 
statutory provisions alleged to have been violated;
    (3) A clear and concise factual statement sufficient to inform each 
respondent with reasonable definiteness of the acts and practices 
alleged to be in violation of the law;
    (4) Notice of penalties, cease and desist order, or other 
affirmative action sought; and
    (5) Notice of the requirement to file an answer and a statement of 
the consequences of failure to file an answer.
    (c) Answer to Order of Investigation and Hearing. (1) Time for 
filing. A respondent must file with the Commission an answer to the 
Order of Investigation and Hearing and serve a copy of the answer on the 
Bureau of Enforcement within 25 days after being served with the Order 
of Investigation and Hearing unless this period has been extended under 
Sec. 502.67 or Sec. 502.102, or reduced under Sec. 502.103, or unless 
motion is filed to withdraw or dismiss the Order of Investigation and 
Hearing, in which latter case, answer must be filed within 10 days after 
service of an order denying such motion. For good cause shown, the 
presiding officer may extend the time for filing an answer.
    (2) Contents of answer. The answer must be verified and must contain 
the following:
    (i) The name, address, and email address of each respondent, and the 
name, address, and email address of each respondent's attorney or 
representative;
    (ii) Admission or denial of each alleged violation of the Shipping 
Act;
    (iii) A clear and concise statement of each ground of defense and 
specific admission, denial, or explanation of facts alleged in the 
complaint, or, if respondent is without knowledge or information 
thereof, a statement to that effect; and
    (iv) Any affirmative defenses, including allegations of any 
additional facts on which the affirmative defenses are based.
    (3) Oral hearing. The answer must indicate whether an oral hearing 
is requested and the desired place for such hearing. The presiding 
officer will determine whether an oral hearing is necessary.
    (4) Effect of failure to file answer. (i) Failure of a respondent to 
file an answer to an Order of Investigation and Hearing within the time 
provided will be deemed to constitute a waiver of the respondent's right 
to appear and contest the allegations in the Order of Investigation and 
Hearing and to authorize the presiding officer to enter a decision on 
default as provided for in 46 CFR 502.65. Well pleaded factual 
allegations in the Order of Investigation and Hearing not answered or 
addressed will be deemed to be admitted.
    (ii) The Bureau of Enforcement may make a motion for decision on 
default. [Rule 63.]



Sec. 502.64  Alternative dispute resolution.

    (a) Mandatory preliminary conference. (1) Participation. Subsequent 
to service

[[Page 37]]

of a Complaint, parties must participate in a preliminary conference 
with the Commission's Office of Consumer Affairs and Dispute Resolution 
Services (CADRS) as to whether the matter may be resolved through 
mediation. The preliminary conference may be conducted either in person 
or via telephone, video conference, or other forum.
    (2) Timing. Within fifteen (15) days of the filing of an answer, the 
parties must contact the Director of CADRS to schedule the preliminary 
conference. The Director of CADRS or his/her designees will conduct the 
preliminary conference and may confer with each party separately at any 
time.
    (b) Continued availability of dispute resolution services to resolve 
procedural and other disputes. Pursuant to subpart U of this part, the 
parties mutually may agree, at any time prior to the termination of a 
Commission proceeding, to initiate or reopen a mediation proceeding to 
explore resolution of procedural or substantive issues.
    (c) Proceeding not stayed during dispute resolution process. Unless 
otherwise ordered by the presiding officer, a mediation proceeding does 
not stay or delay the procedural time requirements set forth by rule or 
order of the presiding officer.
    (d) Confidentiality. The preliminary conference will be 
confidential. [Rule 64.]



Sec. 502.65  Decision on default.

    (a) A party to a proceeding may be deemed to be in default if that 
party fails:
    (1) To appear, in person or through a representative, at a hearing 
or conference of which that party has been notified;
    (2) To answer, to respond to a dispositive motion within the time 
provided, or otherwise to defend the proceeding; or
    (3) To cure a deficient filing within the time specified by the 
Commission or the presiding officer.
    (b) When a party is found to be in default, the Commission or the 
presiding officer may issue a decision on default upon consideration of 
the record, including the complaint or Order of Investigation and 
Hearing.
    (c) The presiding officer may require additional information or 
clarification when needed to issue a decision on default, including a 
determination of the amount of reparations or civil penalties where 
applicable.
    (d) A respondent who has defaulted may file with the Commission a 
petition to set aside a decision on default. Such a petition must be 
made within 22 days of the service date of the decision, state in detail 
the reasons for failure to appear or defend, and specify the nature of 
the proposed defense. In order to prevent injustice, the Commission may 
for good cause shown set aside a decision on default. [Rule 65.]



Sec. 502.66  Amendments or supplements to pleadings.

    (a) Amendments or supplements to any pleading (complaint, Order of 
Investigation and Hearing, counterclaim, crossclaim, third-party 
complaint, and answers thereto) will be permitted or rejected, either in 
the discretion of the Commission or presiding officer. No amendment will 
be allowed that would broaden the issues, without opportunity to reply 
to such amended pleading and to prepare for the broadened issues. The 
presiding officer may direct a party to state its case more fully and in 
more detail by way of amendment.
    (b) A response to an amended pleading must be filed and served in 
conformity with the requirements of subpart H and Sec. 502.69 of this 
part, unless the Commission or the presiding officer directs otherwise. 
Amendments or supplements allowed prior to hearing will be served in the 
same manner as the original pleading, except that the presiding officer 
may authorize the service of amended complaints directly by the parties 
rather than by the Secretary of the Commission.
    (c) Whenever by the rules in this part a pleading is required to be 
verified, the amendment or supplement must also be verified. [Rule 66.]



Sec. 502.67  Motion for more definite statement.

    If a pleading (including a complaint, counterclaim, crossclaim, or 
third-party complaint filed pursuant to Sec. 502.62) to which a 
responsive pleading is permitted is so vague or ambiguous

[[Page 38]]

that a party cannot reasonably prepare a response, the party may move 
for a more definite statement before filing a responsive pleading. The 
motion must be filed within 15 days of the pleading and must point out 
the defects complained of and the details desired. If the motion is 
granted and the order of the presiding officer is not obeyed within 10 
days after service of the order or within such time as the presiding 
officer sets, the presiding officer may strike the pleading to which the 
motion was directed or issue any other appropriate order. If the motion 
is denied, the time for responding to the pleading must be extended to a 
date 10 days after service of the notice of denial. [Rule 67.]



Sec. 502.68  Motion for leave to intervene.

    (a) Filing. A motion for leave to intervene may be filed in any 
proceeding.
    (b) Procedure for intervention. (1) Upon request, the Commission 
will furnish a service list to any member of the public pursuant to part 
503 of this chapter.
    (2) The motion must:
    (i) Comply with all applicable provisions of subpart A of this part;
    (ii) Indicate the type of intervention sought;
    (iii) Describe the interest and position of the person seeking 
intervention, and address the grounds for intervention set forth in 
paragraph (c) of this section;
    (iv) Describe the nature and extent of its proposed participation, 
including the use of discovery, presentation of evidence, and 
examination of witnesses;
    (v) State the basis for affirmative relief, if affirmative relief is 
sought; and
    (vi) Be served on existing parties by the person seeking 
intervention pursuant to subpart H of this part.
    (3) A response to a motion to intervene must be served and filed 
within 15 days after the date of service of the motion.
    (c)(1) Intervention of right. The presiding officer or Commission 
must permit anyone to intervene who claims an interest relating to the 
property or transaction that is subject of the proceeding, and is so 
situated that disposition of the proceeding may as a practical matter 
impair or impede the ability of such person to protect its interest, 
unless existing parties adequately represent that interest.
    (2) Permissive intervention. (i) In general. The presiding officer 
or Commission may permit anyone to intervene who shows that a common 
issue of law or fact exists between such person's interest and the 
subject matter of the proceeding; that intervention would not unduly 
delay or broaden the scope of the proceeding, prejudice the adjudication 
of the rights, or be duplicative of the positions of any existing party; 
and that such person's participation may reasonably be expected to 
assist in the development of a sound record.
    (ii) By a government department, agency, or the Commission's Bureau 
of Enforcement. The presiding officer or Commission may permit 
intervention by a Federal or State government department or agency or 
the Commission's Bureau of Enforcement upon a showing that its expertise 
is relevant to one or more issues involved in the proceeding and may 
assist in the consideration of those issues.
    (3) The timeliness of the motion will also be considered in 
determining whether a motion will be granted under paragraph (b)(2) of 
this section and should be filed no later than 30 days after publication 
in the Federal Register of the Commission's order instituting the 
proceeding or the notice of the filing of the complaint. Motions filed 
after that date must show good cause for the failure to file within the 
30-day period.
    (d) Use of discovery by an intervenor. (1) Absent good cause shown, 
an intervenor desiring to utilize the discovery procedures provided in 
subpart L must commence doing so no more than 15 days after its motion 
for leave to intervene has been granted.
    (2) The Commission or presiding officer may impose reasonable 
limitations on an intervenor's participation in order to:
    (i) Restrict irrelevant or duplicative discovery, evidence, or 
argument;
    (ii) Have common interests represented by a spokesperson; and
    (iii) Retain authority to determine priorities and control the 
course of the proceeding.

[[Page 39]]

    (3) The use of discovery procedures by an intervenor whose motion 
was filed more than 30 days after publication in the Federal Register of 
the Commission's order instituting the proceeding or the notice of the 
filing of the complaint will not be allowed if the presiding officer 
determines that the use of the discovery by the intervenor will unduly 
delay the proceeding. [Rule 68.]



Sec. 502.69  Motions.

    (a) In any adjudication, an application or request for an order or 
ruling not otherwise specifically provided for in this part must be by 
motion. After the assignment of a presiding officer to a proceeding and 
before the issuance of his or her recommended or initial decision, all 
motions must be addressed to and ruled upon by the presiding officer 
unless the subject matter of the motion is beyond his or her authority, 
in which event the matter must be referred to the Commission. If the 
proceeding is not before the presiding officer, motions must be 
designated as petitions and must be addressed to and ruled upon by the 
Commission.
    (b) Motions must be in writing, except that a motion made at a 
hearing may be sufficient if stated orally upon the record.
    (c) Oral argument upon a written motion may be permitted at the 
discretion of the presiding officer or the Commission.
    (d) A repetitious motion will not be entertained.
    (e) All written motions must state clearly and concisely the purpose 
of and the relief sought by the motion, the statutory or principal 
authority relied upon, and the facts claimed to constitute the grounds 
supporting the relief requested; and must conform with the requirements 
of subpart H of this part.
    (f) Any party may file and serve a response to any written motion, 
pleading, petition, application, etc., permitted under this part except 
as otherwise provided respecting answers (Sec. 502.62), shortened 
procedure (subpart K of this part), briefs (Sec. 502.221), exceptions 
(Sec. 502.227), and reply to petitions for attorney fees under the 
Equal Access to Justice Act (Sec. 502.503(b)(1)).
    (g) Dispositive and non-dispositive motions defined. For the purpose 
of these rules, dispositive motion means a motion for decision on the 
pleadings; motion for summary decision or partial summary decision; 
motion to dismiss all or part of a proceeding or party to a proceeding; 
motion for involuntary dismissal; motion for initial decision on 
default; or any other motion for a final determination of all or part of 
a proceeding. All other motions, including all motions related to 
discovery, are non-dispositive motions. [Rule 69.]



Sec. 502.70  Procedure for dispositive motions.

    (a) A dispositive motion as defined in Sec. 502.69(g) of this 
subpart must include a concise statement of the legal basis of the 
motion with citation to legal authority and a statement of material 
facts with exhibits as appropriate.
    (b) A response to a dispositive motion must be served and filed 
within 15 days after the date of service of the motion. The response 
must include a concise statement of the legal basis of the response with 
citation to legal authority and specific responses to any statements of 
material facts with exhibits as appropriate.
    (c) A reply to the response to a dispositive motion may be filed 
within 7 days after the date of service of the response to the motion. A 
reply may not raise new grounds for relief or present matters that do 
not relate to the response and must not reargue points made in the 
opening motion.
    (d) The non-moving party may not file any further reply unless 
requested by the Commission or presiding officer, or upon a showing of 
extraordinary circumstances.
    (e) Page limits. Neither the motion nor the response may exceed 30 
pages, excluding exhibits or appendices, without leave of the presiding 
officer. A reply may not exceed 15 pages. [Rule 70.]



Sec. 502.71  Procedure for non-dispositive motions.

    (a) Duty to confer. Before filing a non-dispositive motion as 
defined in Sec. 502.69(g) of this subpart, the parties must attempt to 
discuss the anticipated motion with each other in a good

[[Page 40]]

faith effort to determine whether there is any opposition to the relief 
sought and, if there is opposition, to narrow the areas of disagreement. 
The moving party must state within the body of the motion what attempt 
was made or that the discussion occurred and whether the motion is 
opposed.
    (b) Response to a non-dispositive motion. A response to a non-
dispositive motion must be served and filed within 7 days after the date 
of service of the motion.
    (c) Response replies. The moving party may not file a reply to a 
response to a non-dispositive motion unless requested by the Commission 
or presiding officer, or upon a showing of extraordinary circumstances.
    (d) Page limits. Neither the motion nor the response may exceed 10 
pages, excluding exhibits or appendices, without leave of the presiding 
officer. [Rule 71.]



Sec. 502.72  Dismissals.

    (a) Voluntary dismissal. (1) By the complainant. The complainant may 
dismiss an action without an order from the presiding officer by filing 
a notice of dismissal before the opposing party serves either an answer, 
a motion to dismiss, or a motion for summary decision; or a stipulation 
of dismissal signed by all parties who have appeared. Unless the notice 
or stipulation states otherwise, the dismissal is without prejudice.
    (2) By order of the presiding officer. Except as provided in 
paragraph (a)(1) of this section, an action may be dismissed at the 
complainant's request only by order of the presiding officer or the 
Commission, on terms the presiding officer considers proper. If a 
respondent has pleaded a counterclaim before being served with the 
complainant's motion to dismiss, the action may be dismissed over the 
respondent's objection only if the counterclaim can remain pending for 
independent adjudication. Unless the order states otherwise, a dismissal 
under this paragraph is without prejudice.
    (b) Involuntary dismissal; effect. If the complainant fails to 
prosecute or to comply with these rules or an order in the proceeding, a 
respondent may move to dismiss the action or any claim against it. 
Unless the dismissal order states otherwise, a dismissal under this 
subpart, except one for lack of jurisdiction or failure to join a party, 
operates as an adjudication on the merits.
    (c) Dismissing a counterclaim, crossclaim, or third-party claim. 
This rule applies to dismissals of any counterclaim, crossclaim, or 
third-party claim. A claimant's voluntary dismissal under this rule must 
be made before a responsive pleading is served. [Rule 72.]



Sec. 502.73  Order to show cause.

    The Commission may institute a proceeding by order to show cause. 
The order must be served upon all persons named therein, must include 
the information specified in Sec. 502.143, must require the person 
named therein to answer, and may require such person to appear at a 
specified time and place and present evidence upon the matters 
specified. [Rule 73.]



Sec. 502.74  Exemption procedures--general.

    (a) Authority. The Commission, upon application or on its own 
motion, may by order or regulation exempt for the future any class of 
agreements between persons subject to the Shipping Act of 1984 or any 
specified activity of those persons from any requirement of the Act if 
the Commission 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 (46 U.S.C. 40103). A 
petition for exemption must state the particular requirement of the 
Shipping Act of 1984 for which exemption is sought. The petition must 
also include a statement of the reasons why an exemption should be 
granted or revoked, must provide information relevant to any finding 
required by the Act and must comply with Sec. 502.76. Where a petition 
for exemption of an

[[Page 41]]

individual agreement is made, the application must include a copy of the 
agreement. Unless a petition specifically requests an exemption by 
regulation, the Commission must evaluate the petition as a request for 
an exemption by order.
    (c) Participation by interested persons. No order or regulation 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 the Commission's own 
motion, must be published in the Federal Register. The notice must 
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 
74.]



Sec. 502.75  Declaratory orders and fee.

    (a)(1) The Commission may, in its discretion, issue a declaratory 
order to terminate a controversy or to remove uncertainty.
    (2) Petitions for the issuance thereof must: state clearly and 
concisely the controversy or uncertainty; name the persons and cite the 
statutory authority involved; include a complete statement of the facts 
and grounds prompting the petition, together with full disclosure of 
petitioner's interest; be served upon all parties named therein; and 
conform to the requirements of subpart H of this part.
    (3) Petitions must be accompanied by remittance of a $241 filing 
fee.
    (b) Petitions under this section must be limited to matters 
involving conduct or activity regulated by the Commission under statutes 
administered by the Commission. The procedures of this section must be 
invoked solely for the purpose of obtaining declaratory rulings which 
will allow persons to act without peril upon their own view. 
Controversies involving an allegation of violation by another person of 
statutes administered by the Commission, for which coercive rulings such 
as payment of reparation or cease and desist orders are sought, are not 
proper subjects of petitions under this section. Such matters must be 
adjudicated either by filing of a complaint under section 11 of the 
Shipping Act of 1984 (46 U.S.C. 41301-41302, 41305-41307(a)) and Sec. 
502.62, or by filing of a petition for investigation under Sec. 502.76.
    (c) Petitions under this section must be accompanied by the complete 
factual and legal presentation of petitioner as to the desired 
resolution of the controversy or uncertainty, or a detailed explanation 
why such can only be developed through discovery or evidentiary hearing.
    (d) Responses to the petition must contain the complete factual and 
legal presentation of the responding party as to the desired resolution, 
or a detailed explanation why such can only be developed through 
discovery or evidentiary hearing. Responses must conform to the 
requirements of Sec. 502.69 and must be served pursuant to subpart H of 
this part.
    (e) No additional submissions will be permitted unless ordered or 
requested by the Commission or the presiding officer. If discovery or 
evidentiary hearing on the petition is deemed necessary by the parties, 
such must be requested in the petition or responses. Requests must state 
in detail the facts to be developed, their relevance to the issues, and 
why discovery or hearing procedures are necessary to develop such facts.
    (f)(1) A notice of filing of any petition which meets the 
requirements of this section must be published in the Federal Register. 
The notice will indicate the time for filing of responses to the 
petition. If the controversy or uncertainty is one of general public 
interest, and not limited to specifically

[[Page 42]]

named persons, opportunity for response will be given to all interested 
persons including the Commission's Bureau of Enforcement.
    (2) In the case of petitions involving a matter limited to 
specifically named persons, participation by persons not named therein 
will be permitted only upon grant of intervention by the Commission 
pursuant to Sec. 502.68.
    (3) Petitions for leave to intervene must be submitted on or before 
the response date and must be accompanied by intervenor's complete 
response including its factual and legal presentation in the matter.
    (g) Petitions for declaratory order which conform to the 
requirements of this section will be referred to a formal docket. 
Referral to a formal docket is not to be construed as the exercise by 
the Commission of its discretion to issue an order on the merits of the 
petition. [Rule 75.]



Sec. 502.76  Petitions--general and fee.

    (a) Except when submitted in connection with a formal proceeding, 
all claims for relief or other affirmative action by the Commission, 
including appeals from Commission staff action, except as otherwise 
provided in this part, must be by written petition, which must state 
clearly and concisely the petitioner's grounds of interest in the 
subject matter, the facts relied upon and the relief sought, must cite 
by appropriate reference the statutory provisions or other authority 
relied upon for relief, must be served upon all parties named therein, 
and must conform otherwise to the requirements of subpart H of this 
part. Responses thereto must conform to the requirements of Sec. 
502.67.
    (b) Petitions must be accompanied by remittance of a $241 filing 
fee. [Rule 76.]



Sec. 502.77  Proceedings involving assessment agreements.

    (a) In complaint proceedings involving assessment agreements filed 
under section 5(e) of the Shipping Act of 1984 (46 U.S.C. 40301(e), 
40305), 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.
    (b) Any party to a proceeding conducted under this section who 
desires to utilize the prehearing discovery procedures provided by 
subpart L of this part must commence doing so at the time it files its 
initial pleading, i.e., complaint, answer, or petition for leave to 
intervene. Discovery matters accompanying complaints must be filed with 
the Secretary of the Commission for service pursuant to Sec. 502.113. 
Answers or objections to discovery requests must be subject to the 
normal provisions set forth in subpart L.
    (c) Exceptions to the decision of the presiding officer, filed 
pursuant to Sec. 502.227, must be filed and served no later than 15 
days after date of service of the initial decision. Replies thereto must 
be filed and served no later than 15 days after date of service of 
exceptions. In the absence of exceptions, the decision of the presiding 
officer must be final within 30 days from the date of service, unless 
within that period, a determination to review is made in accordance with 
the procedures outlined in Sec. 502.227. [Rule 77.]



Sec. 502.78  Brief of an amicus curiae.

    (a) A brief of an amicus curiae may be filed only by leave of the 
Commission or the presiding officer granted on motion with notice to the 
parties, or at the request of the Commission or the presiding officer, 
except that leave must not be required when the brief is presented by 
the United States or any agency or officer of the United States. The 
brief may be conditionally filed with the motion for leave. A brief of 
an amicus curiae must be limited to questions of law or policy.
    (b) A motion for leave to file an amicus brief must identify the 
interest of the applicant and must state the reasons why such a brief is 
desirable.
    (c) Except as otherwise permitted by the Commission or the presiding 
officer, an amicus curiae must file its brief no later than 7 days after 
the initial brief of the party it supports is received at the 
Commission. An amicus curiae that is not supporting either party must 
file its brief no later than 7 days after the initial brief of the first 
party filing a brief is received at the

[[Page 43]]

Commission. The Commission or the presiding officer must grant leave for 
a later filing only for cause shown, in which event the period within 
which an opposing party may answer must be specified.
    (d) A motion of an amicus curiae to participate in oral argument 
will be granted only in accordance with the requirements of Sec. 
502.241. [Rule 78.]



Sec. 502.79  Consolidation of proceedings.

    The Commission or the Chief Administrative Law Judge (or designee) 
may order two or more proceedings which involve substantially the same 
issues consolidated and heard together.

[78 FR 45071, July 26, 2013]



               Subpart F_Settlement; Prehearing Procedure



Sec. 502.91  Opportunity for informal settlement.

    (a) Parties are encouraged to make use of all the procedures of this 
part which are designed to simplify or avoid formal litigation, and to 
assist the parties in reaching settlements whenever it appears that a 
particular procedure would be helpful.
    (b) Where time, the nature of the proceeding, and the public 
interest permit, all interested parties shall have the opportunity for 
the submission and consideration of facts, argument, offers of 
settlement, or proposal of adjustment, without prejudice to the rights 
of the parties.
    (c) No stipulation, offer, or proposal shall be admissible in 
evidence over the objection of any party in any hearing on the matter. 
[Rule 91.]
    (d) As soon as practicable after the commencement of any proceeding, 
the presiding judge shall direct the parties or their representatives to 
consider the use of alternative dispute resolution, including but not 
limited to mediation, and may direct the parties or their 
representatives to consult with the Federal Maritime Commission 
Alternative Dispute Resolution Specialist about the feasibility of 
alternative dispute resolution.
    (e) Any party may request that a mediator or other neutral be 
appointed to assist the parties in reaching a settlement. If such a 
request or suggestion is made and is not opposed, the presiding judge 
will appoint a mediator or other neutral who is acceptable to all 
parties, coordinating with the Federal Maritime Commission Alternative 
Dispute Resolution Specialist. The mediator or other neutral shall 
convene and conduct one or more mediation or other sessions with the 
parties and shall inform the presiding judge, within the time prescribed 
by the presiding judge, whether the dispute resolution proceeding 
resulted in a resolution or not, and may make recommendations as to 
future proceedings. If settlement is reached, it shall be submitted to 
the presiding judge who shall issue an appropriate decision or ruling. 
All such dispute resolution proceedings shall be subject to the 
provisions of subpart U.
    (f) Any party may request that a settlement judge be appointed to 
assist the parties in reaching a settlement. If such a request or 
suggestion is made and is not opposed, the presiding judge will advise 
the Chief Administrative Law Judge who may appoint a settlement judge 
who is acceptable to all parties. The settlement judge shall convene and 
preside over conferences and settlement negotiations and shall report to 
the presiding judge within the time prescribed by the Chief 
Administrative Law Judge, on the results of settlement discussions with 
appropriate recommendations as to future proceedings. If settlement is 
reached, it shall be submitted to the presiding judge who shall issue an 
appropriate decision or ruling. [Rule 91].

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 
FR 7808, Feb. 17, 1999; 66 FR 43513, Aug. 20, 2001]



Sec. 502.92  [Reserved]



Sec. 502.94  Prehearing conference.

    (a)(1) Prior to any hearing, the Commission or presiding officer may 
direct all interested parties, by written notice, to attend one or more 
prehearing conferences for the purpose of considering any settlement 
under Sec. 502.91, formulating the issues in the proceeding and 
determining other matters to aid

[[Page 44]]

in its disposition. In addition to any offers of settlement or proposals 
of adjustment, there may be considered the following:
    (i) Simplification of the issues;
    (ii) The necessity or desirability of amendments to the pleadings;
    (iii) The possibility of obtaining admissions of fact and of 
documents which will avoid unnecessary proof;
    (iv) Limitation on the number of witnesses;
    (v) The procedure at the hearing;
    (vi) The distribution to the parties prior to the hearing of written 
testimony and exhibits;
    (vii) Consolidation of the examination of witnesses by counsel;
    (viii) Such other matters as may aid in the disposition of the 
proceeding.
    (2) The presiding officer may require, prior to the hearing, 
exchange of exhibits and any other material which may expedite the 
hearing. He or she shall assume the responsibility of accomplishing the 
purposes of the notice of prehearing conference so far as this may be 
possible without prejudice to the rights of any party.
    (3) The presiding officer shall rule upon all matters presented for 
decision, orally upon the record when feasible, or by subsequent ruling 
in writing. If a party determines that a ruling made orally does not 
cover fully the issue presented, or is unclear, such party may petition 
for a further ruling thereon within ten (10) days after receipt of the 
transcript.
    (b) In any proceeding under the rules in this part, the presiding 
officer may call the parties together for an informal conference prior 
to the taking of testimony, or may recess the hearing for such a 
conference, with a view to carrying out the purposes of this section. 
[Rule 94.]
    (c) At any prehearing conference, consideration shall be given to 
whether the use of alternative dispute resolution would be appropriate 
or useful for the disposition of the proceeding whether or not there has 
been previous consideration of such use.

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 
FR 7808, Feb. 17, 1999; 66 FR 43513, Aug. 20, 2001]



Sec. 502.95  Prehearing statements.

    (a) Unless waiver is granted by the presiding officer, it shall be 
the duty of all parties to a proceeding to prepare a statement or 
statements at a time and in the manner to be established by the 
presiding officer provided that there has been reasonable opportunity 
for discovery. To the extent possible, joint statements should be 
prepared.
    (b) A prehearing statement shall state the name of the party or 
parties on whose behalf it is presented and briefly set forth the 
following matters, unless otherwise ordered by the presiding officer:
    (1) Issues involved in the proceeding.
    (2) Facts stipulated pursuant to the procedures together with a 
statement that the party or parties have communicated or conferred in a 
good faith effort to reach stipulation to the fullest extent possible.
    (3) Facts in dispute.
    (4) Witnesses and exhibits by which disputed facts will be 
litigated.
    (5) A brief statement of applicable law.
    (6) The conclusion to be drawn.
    (7) Suggested time and location of hearing and estimated time 
required for presentation of the party's or parties' case.
    (8) Any appropriate comments, suggestions or information which might 
assist the parties in preparing for the hearing or otherwise aid in the 
disposition of the proceeding.
    (c) The presiding officer may, for good cause shown, permit a party 
to introduce facts or argue points of law outside the scope of the facts 
and law outlined in the prehearing statement. Failure to file a 
prehearing statement, unless waiver has been granted by the presiding 
officer, may result in dismissal of a party from the proceeding, 
dismissal of a complaint, judgment against respondents, or imposition of 
such other sanctions as may be appropriate under the circumstances.
    (d) Following the submission of prehearing statements, the presiding 
officer may, upon motion or otherwise, convene a prehearing conference 
for the purpose of further narrowing issues and limiting the scope of 
the hearing if, in his or her opinion, the prehearing statements 
indicate lack of dispute of

[[Page 45]]

material fact not previously acknowledged by the parties or lack of 
legitimate need for cross-examination and is authorized to issue 
appropriate orders consistent with the purposes stated in this section. 
[Rule 95.]



         Sec. Exhibit No. 1 to Subpart F of Part 502 [Reserved]



                             Subpart G_Time



Sec. 502.101  Computation.

    In computing any period of time under the rules in this part, the 
time begins with the day following the act, event, or default, and 
includes the last day of the period, unless it is a Saturday, Sunday, or 
national legal holiday, in which event the period runs until the end of 
the next day which is not a Saturday, Sunday, or national legal holiday. 
When the period of time prescribed or allowed is less than seven (7) 
days, intermediate Saturdays, Sundays, or national legal holidays shall 
be excluded from the computation. [Rule 101.]



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 
relation to briefs, exceptions, and replies to exceptions, such motions 
shall conform to the further provisions of Sec. Sec. 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.]

[64 FR 7808, Feb. 17, 1999]



Sec. 502.103  Reduction of time to file documents.

    Except as otherwise provided by law and for good cause, the 
Commission, with respect to matters pending before it, and the presiding 
officer, with respect to matters pending before him or her, may reduce 
any time limit prescribed in the rules in this part. [Rule 103.]



Sec. 502.104  Postponement of hearing.

    Motions for postponement of any hearing date shall set forth the 
reasons for the motion, and shall conform to the requirements of subpart 
H of this part, except as to service if they show that parties have 
received such actual notice of motion. Such motions will be granted only 
if found necessary to prevent substantial delay, expense, detriment to 
the public interest or undue prejudice to a party. 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. 
Replies to such motions shall conform to the requirements of Sec. 
502.74. [Rule 104.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7809, Feb. 17, 1999]



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 Sec. Sec. 502.102 and 502.104 
as to replies and may rule ex parte on such requests. [Rule 105.]

[64 FR 7809, Feb. 17, 1999]



           Subpart H_Form, Execution, and Service of Documents



Sec. Sec. 502.111-502.112  [Reserved]



Sec. 502.113  Service by the Commission.

    (a) Complaints filed pursuant to Sec. 502.62, (including any 
accompanying

[[Page 46]]

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.]

[64 FR 7809, Feb. 17, 1999]



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.
    (b) Service on all prior participants shall be shown when submitting 
comments or replies beyond the initial round, or when submitting post-
decisional pleadings and replies such as petitions for reconsideration, 
or for stay under rule 261 or to reopen under rule 230 in all general 
notice proceedings, including those involving disposition of petitions 
for rulemaking (rule 51), petitions for declaratory order (rule 68), 
petitions general (rule 69), notices of proposed rulemaking (rule 52), 
proceedings under section 19 of the Merchant Marine Act, 1920, (46 
U.S.C. 42101) (part 550), and proceedings under section 13(b)(6) of the 
Shipping Act of 1984 (46 U.S.C. 41108(d)) (part 560). A list of all 
participants may be obtained from the Secretary of the Commission.

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28400, July 11, 1990; 61 
FR 66617, Dec. 18, 1996; 64 FR 7809, Feb. 17, 1999; 74 FR 50716, Oct. 1, 
2009; 76 FR 10262, Feb. 24, 2011]



Sec. 502.115  Service on attorney or other representative.

    When a party has appeared by attorney or other representative, 
service upon each attorney or other representative of record will be 
deemed service upon the party, except that, if two or more attorneys of 
record are partners or associates of the same firm, only one of them 
need be served. [Rule 115.]



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.]

[64 FR 7809, Feb. 17, 1999]



Sec. 502.117  Certificate of service.

    The original of every document filed with the Commission and 
required to be served upon all parties to a proceeding shall be 
accompanied by a certificate of service signed by the party making 
service, stating that such service has been made upon each party to the 
proceeding. Certificates of service may be in substantially the 
following form:

                         Certificate of Service

    I hereby certify that I have this day served the foregoing document 
upon [all parties of

[[Page 47]]

record or name of person(s)] by [mailing, delivering to courier or 
delivering in person] a copy to each such person.

    Dated at, ------ this ------ day of ------ 19--.

 (Signature)____________________________________________________________

 (For)__________________________________________________________________
[Rule 117.]



Sec. 502.118  Copies of documents for use of the Commission.

    (a)-(b)(3) [Reserved]
    (4) One copy of each exhibit shall be furnished to the official 
reporter, to each of the parties present at the hearing and to the 
Presiding Officer unless he or she directs otherwise. If submitted other 
than at a hearing, the ``reporter's'' copy of an exhibit shall be 
furnished to the administrative law judge for later inclusion in the 
record if and when admitted.
    (5) Copies of prepared testimony submitted pursuant to Sec. 502.157 
are governed by the requirements for exhibits in paragraph (b)(4) of 
this section. [Rule 118.]

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28400, July 11, 1990; 61 
FR 66617, Dec. 18, 1996; 64 FR 7809, Feb. 17, 1999; 76 FR 10262, Feb. 
24, 2011]



                           Subpart I_Subpoenas



Sec. 502.131  Requests; issuance.

    Subpoenas for the attendance of witnesses or the production of 
evidence shall be issued upon request of any party, without notice to 
any other party. Requests for subpoenas must be submitted in writing to 
the Office of Administrative Law Judges. The party requesting the 
subpoena shall tender an original and one copy of such subpoena. Where 
it appears that the subpoena sought may be unreasonable, oppressive, 
excessive in scope, or unduly burdensome, the administrative law judge 
may in his or her discretion, as a condition precedent to the issuance 
of the subpoena, require the person seeking the subpoena to show the 
general relevance and reasonable scope of the testimony or other 
evidence sought. [Rule 131.]

[76 FR 10262, Feb. 24, 2011]



Sec. 502.132  Motions to quash or modify.

    (a) Except when issued at a hearing, or in connection with the 
taking of a deposition, within ten (10) days after service of a subpoena 
for attendance of a witness or a subpoena for production of evidence, 
but in any event at or before the time specified in the subpoena for 
compliance therewith, the person to whom the subpoena is directed may, 
by motion with notice to the party requesting the subpoena, petition the 
presiding officer to quash or modify the subpoena.
    (b) If served at the hearing, the person to whom the subpoena is 
directed may, by oral application at the hearing, within a reasonable 
time fixed by the presiding officer, petition the presiding officer to 
revoke or modify the subpoena.
    (c) If served in connection with the taking of a deposition pursuant 
to Sec. 502.203 unless otherwise agreed to by all parties or otherwise 
ordered by the presiding officer, the party who has requested the 
subpoena shall arrange that it be served at least twenty (20) days prior 
to the date specified in the subpoena for compliance therewith, the 
person to whom the subpoena is directed may move to quash or modify the 
subpoena within ten (10) days after service of the subpoena, and a reply 
to such motion shall be served within five (5) days thereafter. [Rule 
132.]

[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011]



Sec. 502.133  Attendance and mileage fees.

    Witnesses summoned by subpoena to a hearing or deposition are 
entitled to the 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.]

[64 FR 7809, Feb. 17, 1999, as amended at 76 FR 10262, Feb. 24, 2011]



Sec. 502.134  Service of subpoenas.

    If service of a subpoena is made by a United States marshal, or his 
or her deputy, or an employee of the Commission, such service shall be 
evidenced by his or her return thereon. If made by any other person, 
such person shall make affidavit thereto, describing the

[[Page 48]]

manner in which service is made, and return such affidavit on or with 
the original subpoena. In case of failure to make service, the reasons 
for the failure shall be stated on the original subpoena. In making 
service, the original subpoena shall be exhibited to the person served, 
shall be read to him or her if he or she is unable to read, and a copy 
thereof shall be left with him or her. The original subpoena, bearing or 
accompanied by required return, affidavit, or statement, shall be 
returned without delay to the Commission, or if so directed on the 
subpoena, to the presiding officer before whom the person named in the 
subpoena is required to appear. [Rule 134.]

[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011]



Sec. 502.135  Subpoena of Commission staff personnel, documents or things.

    (a) A subpoena for the attendance of Commission staff personnel or 
for the production of documentary materials in the possession of the 
Commission shall be served upon the Secretary. If the subpoena is 
returnable at hearing, a motion to quash may be filed within five (5) 
days of service and attendance shall not be required until the presiding 
officer rules on said motion. If the subpoena is served in connection 
with prehearing depositions, the procedure to be followed with respect 
to motions to quash and replies thereto will correspond to the 
procedures established with respect to motions and replies in Sec. 
502.132(c).
    (b) The General Counsel shall designate an attorney to represent any 
Commission staff personnel subpoenaed under this section. The attorney 
so designated shall not thereafter participate in the Commission's 
decision-making process concerning any issue in the proceeding.
    (c) Rulings of the presiding officer issued under Sec. 502.135(a) 
shall become final rulings of the Commission unless an appeal is filed 
within ten (10) days after date of issuance of such rulings or unless 
the Commission, on its own motion, reverses, modifies, or stays such 
rulings within twenty (20) days of their issuance. Replies to appeals 
may be filed within ten (10) days. No ruling of the presiding officer 
shall be effective until twenty (20) days from date of issuance unless 
the Commission otherwise directs. [Rule 135.]

[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011]



Sec. 502.136  Enforcement.

    In the event of failure to comply with any subpoena or order issued 
in connection therewith, the Commission may seek enforcement as provided 
in Sec. 502.210(b). [Rule 136.]

[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011]



            Subpart J_Hearings; Presiding Officers; Evidence



Sec. 502.141  Hearings not required by statute.

    The Commission may call informal public hearings, not required by 
statute, to be conducted under the rules in this part where applicable, 
for the purpose of rulemaking or to obtain information necessary or 
helpful in the determination of its policies or the carrying out of its 
duties, and may require the attendance of witnesses and the production 
of evidence to the extent permitted by law. [Rule 141.]



Sec. 502.142  Hearings required by statute.

    In complaint and answer cases, investigations on the Commission's 
own motion, and in other rulemaking and adjudication proceedings in 
which a hearing is required by statute, formal hearings shall be 
conducted pursuant to 5 U.S.C. 554. [Rule 142.]



Sec. 502.143  Notice of nature of hearing, jurisdiction and issues.

    Persons entitled to notice of hearings, except those notified by 
complaint served under Sec. 502.113, will be duly and timely informed 
of (a) the nature of the proceeding, (b) the legal authority and 
jurisdiction under which the proceeding is conducted, and (c) the terms, 
substance, and issues involved, or the matters of fact and law asserted, 
as the case may be. Such notice shall be published in the Federal 
Register unless all persons subject thereto are named and either are 
personally served

[[Page 49]]

or otherwise have actual notice thereof in accordance with law. [Rule 
143.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 64 
FR 7810, Feb. 17, 1999]



Sec. 502.144  Notice of time and place of hearing; postponement of hearing.

    (a) Notice of hearing will designate the time and place thereof, the 
person or persons who will preside, and the kind of decision to be 
issued. The date or place of a hearing for which notice has been issued 
may be changed when warranted. Reasonable notice will be given to the 
parties or their representatives of the time and place of the change 
thereof, due regard being had for the public interest and the 
convenience and necessity of the parties or their representatives. 
Notice may be served by mail or telegraph. 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.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7810, Feb. 17, 1999; 64 
FR 23551, May 3, 1999]



Sec. Sec. 502.145-502.149  [Reserved]



Sec. 502.150  Further evidence required by presiding officer during 
hearing.

    At any time during the hearing, the presiding officer may call for 
further evidence upon any issue, and require such evidence where 
available to be presented by the party or parties concerned, either at 
the hearing or adjournment thereof. [Rule 150.]



Sec. 502.151  Exceptions to rulings of presiding officer unnecessary.

    Formal exceptions to rulings of the presiding officer are 
unnecessary. It is sufficient that a party, at the time the ruling of 
the presiding officer is made or sought, makes known the action which it 
desires the presiding officer to take or its objection to an action 
taken, and its grounds therefor. [Rule 151.]



Sec. 502.152  Offer of proof.

    An offer of proof made in connection with an objection taken to any 
ruling of the presiding officer rejecting or excluding proffered oral 
testimony shall consist of a statement of the substance of the evidence 
which counsel contends would be adduced by such testimony; and, if the 
excluded evidence consists of evidence in documentary or written form or 
of reference to documents or records, a copy of such evidence shall be 
marked for identification and shall constitute the offer of proof. [Rule 
152.]



Sec. 502.153  Appeal from ruling of presiding officer other than orders
of dismissal in whole or in part.

    (a) Rulings of the presiding officer may not be appealed prior to or 
during the course of the hearing, or subsequent thereto, if the 
proceeding is still before him or her, except where the presiding 
officer shall find it necessary to allow an appeal to the Commission to 
prevent substantial delay, expense, or detriment to the public interest, 
or undue prejudice to a party.
    (b) Any party seeking to appeal must file a motion for leave to 
appeal no later than fifteen (15) days after written service or oral 
notice of the ruling in question, unless the presiding officer, for good 
cause shown, enlarges or shortens the time. Any such motion shall 
contain not only the grounds for leave to appeal but the appeal itself.
    (c) Replies to the motion for leave to appeal and the appeal may be 
filed within fifteen (15) days after date of service thereof, unless the 
presiding officer, for good cause shown, enlarges or shortens the time. 
If the motion is granted, the presiding officer shall certify the appeal 
to the Commission.
    (d) Unless otherwise provided, the certification of the appeal shall 
not operate as a stay of the proceeding before the presiding officer.
    (e) The provisions of Sec. 502.10 shall not apply to this section. 
[Rule 153.]



Sec. 502.154  Rights of parties as to presentation of evidence.

    Every party shall have the right to present its case or defense by 
oral or documentary evidence, to submit rebuttal evidence, and to 
conduct such cross-examination as may be required for a full and true 
disclosure of the facts. The presiding officer shall, however, have the 
right and duty to limit the introduction of evidence and the examination 
and cross-examination of

[[Page 50]]

witnesses when in his or her judgment, such evidence or examination is 
cumulative or is productive of undue delay in the conduct of the 
hearing. [Rule 154.]



Sec. 502.155  Burden of proof.

    In all cases, as prescribed by the Administrative Procedure Act, 5 
U.S.C. 556(d), the burden of proof shall be on the proponent of the rule 
or order. [Rule 155.]

[61 FR 66617, Dec. 18, 1996]



Sec. 502.156  Evidence admissible.

    In any proceeding under the rules in this part, all evidence which 
is relevant, material, reliable and probative, and not unduly 
repetitious or cumulative, shall be admissible. All other evidence shall 
be excluded. Unless inconsistent with the requirements of the 
Administrative Procedure Act and these Rules, the Federal Rules of 
Evidence, Public Law 93-595, effective July 1, 1975, will also be 
applicable. [Rule 156.]



Sec. 502.157  Written evidence.

    (a) The use of written statements in lieu of oral testimony shall be 
resorted to where the presiding officer in his or her discretion rules 
that such procedure is appropriate. The statements shall be numbered in 
paragraphs, and each party in its rebuttal shall be required to list the 
paragraphs to which it objects, giving an indication of its reasons for 
objecting. Statistical exhibits shall contain a short commentary 
explaining the conclusions which the offeror draws from the data. Any 
portion of such testimony which is argumentative shall be excluded. 
Where written statements are used, copies of the statement and any 
rebuttal statement shall be furnished to all parties, as shall copies of 
exhibits. The presiding officer shall fix respective dates for the 
exchange of such written rebuttal statements and exhibits in advance of 
the hearing to enable study by the parties of such testimony. 
Thereafter, the parties shall endeavor to stipulate as many of the facts 
set forth in the written testimony as they may be able to agree upon. 
Oral examination of witnesses shall thereafter be confined to facts 
which remain in controversy, and a reading of the written statements at 
the hearing will be dispensed with unless the presiding officer 
otherwise directs.
    (b) Where a formal hearing is held in a rulemaking proceeding, 
interested persons will be afforded an opportunity to participate 
through submission of relevant, material, reliable and probative written 
evidence properly verified, except that such evidence submitted by 
persons not present at the hearing will not be made a part of the record 
if objected to by any party on the ground that the person who submits 
the evidence is not present for cross-examination. [Rule 157.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.158  Documents containing matter not material.

    Where written matter offered in evidence is embraced in a document 
containing other matter which is not intended to be offered in evidence, 
the offering party shall present the original document to all parties at 
the hearing for their inspection, and shall offer a true copy of the 
matter which is to be introduced, unless the presiding officer 
determines that the matter is short enough to be read into the record. 
Opposing parties shall be afforded an opportunity to introduce in 
evidence, in like manner, other portions of the original document which 
are material and relevant. [Rule 158.]



Sec. 502.159  [Reserved]



Sec. 502.160  Records in other proceedings.

    When any portion of the record before the Commission in any 
proceeding other than the one being heard is offered in evidence, a true 
copy of such portion shall be presented for the record in the form of an 
exhibit unless the parties represented at the hearing stipulate upon the 
record that such portion may be incorporated by reference. [Rule 160.]



Sec. 502.161  Commission's files.

    Where any matter contained in a tariff, report, or other document on 
file

[[Page 51]]

with the Commission is offered in evidence, such document need not be 
produced or marked for identification, but the matter so offered shall 
be specified in its particularity, giving tariff number and page number 
of tariff, report, or document in such manner as to be readily 
identified, and may be received in evidence by reference, subject to 
comparison with the original document on file. [Rule 161.]



Sec. 502.162  Stipulations.

    The parties may, by stipulation, agree upon any facts involved in 
the proceeding and include them in the record with the consent of the 
presiding officer. It is desirable that facts be thus agreed upon 
whenever practicable. Written stipulations shall be subscribed and shall 
be served upon all parties of record unless presented at the hearing or 
prehearing conference. A stipulation may be proposed even if not 
subscribed by all parties without prejudice to any nonsubscribing 
party's right to cross-examine and offer rebuttal evidence. [Rule 162.]



Sec. 502.163  Receipt of documents after hearing.

    Documents or other writings to be submitted for the record after the 
close of the hearing will not be received in evidence except upon 
permission of the presiding officer. Such documents or other writings 
when submitted shall be accompanied by a statement that copies have been 
served upon all parties, and shall be received, except for good cause 
shown, not later than ten (10) days after the close of the hearing and 
not less than (10) days prior to the date set for filing briefs. Exhibit 
numbers will not be assigned until such documents are actually received 
and incorporated in the record. [Rule 163.]



Sec. 502.164  Oral argument at hearings.

    Oral argument at the close of testimony may be ordered by the 
presiding officer in his or her discretion. [Rule 164.]



Sec. 502.165  Official transcript.

    (a) The Commission will designate the official reporter for all 
hearings. The official transcript of testimony taken, together with any 
exhibits and any briefs or memoranda of law filed therewith, shall be 
filed with the Commission. Transcripts of testimony will be available in 
any proceeding under the rules in this part, and will be supplied by the 
official reporter to the parties and to the public, except when required 
for good cause to be held confidential, at rates not to exceed the 
maximum rates fixed by contract between the Commission and the reporter.
    (b)(1) Section 11 of the Federal Advisory Committee Act provides 
that, except where prohibited by contractual agreements entered into 
prior to the effective date of this Act, agencies and advisory 
committees shall make available to any person, at actual cost of 
duplication, copies of transcripts of agency proceedings or advisory 
committee meetings. As used in this section, ``agency proceeding'' means 
any proceeding as defined in 5 U.S.C. 551(12).
    (2) The Office of Management and Budget has interpreted this 
provision as being applicable to proceedings before the Commission and 
its administrative law judges. (Guidelines, 38 FR 12851, May 16, 1973.)
    (3) The Commission interprets section 11 and the OMB guidelines as 
follows:
    (i) Future contracts between the Commission and the successfully 
bidding recording firm will provide that any party to a Commission 
proceeding or other interested person (hereinafter included within the 
meaning of ``party'') shall be able to obtain a copy of the transcript 
of the proceeding in which it is involved at the actual cost of 
duplication of the original transcript, which includes a reasonable 
amount for overhead and profit, except where it requests delivery of 
copies in a shorter period of time than is required for delivery by the 
Commission.
    (ii) The Commission will bear the full expense of transcribing all 
of its administrative proceedings where it requests regular delivery 
service (as set forth in the Contract). In cases where the Commission 
requests daily delivery of transcript copies (as set forth in the 
Contract), any party may receive daily delivery service at the actual 
cost of duplication.

[[Page 52]]

    (iii)(A) Where the Commission does not request daily copy service, 
any party requesting such service must bear the incremental cost of 
transcription above the regular copy transcription cost borne by the 
Commission, in addition to the actual cost of duplication, except that 
where the party applies for and properly shows that the furnishing of 
daily copy is indispensable to the protection of a vital right or 
interest in achieving a fair hearing, the presiding officer in the 
proceeding in which the application is made shall order that daily copy 
service be provided the applying party at the actual cost of 
duplication, with the full cost of transcription being borne by the 
Commission.
    (B) In the event a request for daily copy is denied by the presiding 
officer, the requesting party, in order to obtain daily copy, must pay 
the cost of transcription over and above that borne by the Commission, 
i.e., the incremental cost between that paid by the Commission when it 
requests regular copy and when it requests daily copy.
    (C) The decision of the presiding officer in this situation is 
interpreted as falling within the scope of the functions and powers of 
the presiding officer, as defined in Sec. 502.147(a). [Rule 165.]



Sec. 502.166  Corrections of transcript.

    Motions made at the hearing to correct the record will be acted upon 
by the presiding officer. Motions made after the hearing to correct the 
record shall be filed with the presiding officer within twenty-five (25) 
days after the last day of hearing or any session thereof, unless 
otherwise directed by the presiding officer, and shall be served on all 
parties. Such motions may be in the form of a letter. If no objections 
are received within ten (10) days after date of service, the transcript 
will, upon approval of the presiding officer, be changed to reflect such 
corrections. If objections are received, the motion will be acted upon 
with due consideration of the stenographic record of the hearing. [Rule 
166.]



Sec. 502.167  Objection to public disclosure of information.

    Upon objection to public disclosure of any information sought to be 
elicited during a hearing, the presiding officer may in his or her 
discretion order that the witness shall disclose such information only 
in the presence of those designated and sworn to secrecy by the 
presiding officer. The transcript of testimony shall be held 
confidential. Copies of said transcript need be served only upon the 
parties to whose representatives the information has been disclosed and 
upon such other parties as the presiding officer may designate. This 
rule is subject to the proviso that any information given pursuant 
thereto, may be used by the presiding officer or the Commission if 
deemed necessary to a correct decision in the proceeding. [Rule 167.]

[55 FR 28400, July 11, 1990]



Sec. 502.168  Copies of data or evidence.

    Every person compelled to submit data or evidence shall be entitled 
to retain or, on payment of proper costs, procure a copy of transcript 
thereof. [Rule 168.]



Sec. 502.169  Record of decision.

    The transcript of testimony and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the exclusive 
record for decision. [Rule 169.]



                      Subpart K_Shortened Procedure



Sec. 502.181  Selection of cases for shortened procedure; consent 
required.

    By consent of the parties and with approval of the Commission or 
presiding officer, a complaint proceeding may be conducted under 
shortened procedure without oral hearing, except that a hearing may be 
ordered by the presiding officer at the request of any party or in his 
or her discretion. [Rule 181.]



Sec. 502.182  Complaint and memorandum of facts and arguments and 
filing fee.

    A complaint filed with the Commission under this subpart shall have 
attached a memorandum of the facts,

[[Page 53]]

subscribed and verified according to Sec. 502.112, and of arguments 
separately stated, upon which it relies. The original of each complaint 
with memorandum shall be accompanied by copies for the Commission's use. 
The complaint shall be accompanied by remittance of a $221 filing fee. 
[Rule 182.]

[49 FR 44369, Nov. 6, 1984, as amended at 59 FR 59170, Nov. 16, 1994; 63 
FR 50535, Sept. 22, 1998; 67 FR 39859, June 11, 2002; 70 FR 10329, Mar. 
3, 2005]



Sec. 502.183  Respondent's answering memorandum.

    Within twenty-five (25) days after date of service of the complaint, 
unless a shorter period is fixed, each respondent shall, if it consents 
to the shortened procedure provided in this subpart, serve upon 
complainant pursuant to subpart H of this part an answering memorandum 
of the facts, subscribed and verified according to Sec. 502.112, and of 
arguments, separately stated, upon which it relies. The original of the 
answering memorandum shall be accompanied by a certificate of service as 
provided in Sec. 502.114 and shall be accompanied by copies for the 
Commission's use. If the respondent does not consent to the proceeding 
being conducted under the shortened procedure provided in this subpart, 
the matter will be governed by subpart E of this part and the respondent 
shall file an answer under Sec. 502.64. [Rule 183.]



Sec. 502.184  Complainant's memorandum in reply.

    Within fifteen (15) days after the date of service of the answering 
memorandum prescribed in Sec. 502.183, unless a shorter period is 
fixed, each complainant may file a memorandum in reply, subscribed and 
verified according to Sec. 502.112, served as provided in Sec. 
502.114, and accompanied by copies for the Commission's use. This will 
close the record for decision unless the presiding officer determines 
that the record is insufficient and orders the submission of additional 
evidentiary materials. [Rule 184.]



Sec. 502.185  Service of memoranda upon and by interveners.

    Service of all memoranda shall be made upon any interveners. 
Interveners shall file and serve memoranda in conformity with the 
provisions relating to the parties on whose behalf they intervene. [Rule 
185.]



Sec. 502.186  Contents of memoranda.

    The memorandum should contain concise arguments and fact, the same 
as would be offered if a formal hearing were held and briefs filed. If 
reparation is sought, paid freight bills should accompany complainant's 
original memorandum. [Rule 186.]



Sec. 502.187  Procedure after filing of memoranda.

    An initial, recommended, or tentative decision will be served upon 
the parties in the same manner as is provided under Sec. 502.225. 
Thereafter, the procedure will be the same as that in respect to 
proceedings after formal hearing. [Rule 187.]



                   Subpart L_Disclosures and Discovery

    Source: 77 FR 61529, Oct. 10, 2012, unless otherwise noted.



Sec. 502.201  Duty to disclose; general provisions governing discovery.

    (a) Applicability. Unless otherwise stated in subpart S, T, or any 
other subpart of this part, the procedures described in this subpart are 
available in all adjudicatory proceedings under the Shipping Act of 
1984.
    (b) Initial disclosures. Except as otherwise stipulated or ordered 
by the Commission or presiding officer, and except as provided in this 
subpart related to disclosure of expert testimony, all parties must, 
within 7 days of service of a respondent's answer to the complaint or 
Order of Investigation and Hearing and without awaiting a discovery 
request, provide to each other:
    (1) The name and, if known, the address and telephone number of each 
individual likely to have discoverable information that the disclosing 
party may use to support its claims or defenses, unless the use would be 
solely for impeachment;
    (2) A copy, or a description by category and location, of all 
documents, electronically stored information, and tangible things that 
the disclosing

[[Page 54]]

party has in its possession, custody, or control and may use to support 
its claims or defenses, unless the use would be solely for impeachment;
    (3) An estimate of any damages claimed by the disclosing party who 
must also make available for inspection and copying the documents or 
other evidentiary material, unless privileged or protected from 
disclosure, on which the estimate is based, including materials bearing 
on the nature and extent of injuries suffered.
    (c) For parties served or joined later. A party that is first served 
or otherwise joined after the answer is made must make the initial 
disclosures within 5 days after an order of intervention is granted, 
unless a different time is set by stipulation or order of presiding 
officer. All parties must also produce to the late-joined party any 
initial disclosures previously made.
    (d) Disclosure of expert testimony. (1) In general. A party must 
disclose to the other parties the identity of any witness it may use in 
the proceeding to present evidence as an expert.
    (2) Witnesses who are required to provide a written report. Unless 
otherwise stipulated or ordered by the presiding officer, if the witness 
is one retained or specially employed to provide expert testimony in the 
proceeding or one whose duties as the party's employee regularly involve 
giving expert testimony, the disclosure must be accompanied by a written 
report, prepared and signed by the witness. The report must contain:
    (i) A complete statement of all opinions the witness will express 
and the basis and reasons for them;
    (ii) The facts or data considered by the witness in forming them;
    (iii) Any exhibits that will be used to summarize or support them;
    (iv) The witness's qualifications, including a list of all 
publications authored in the previous 10 years;
    (v) A list of all other proceedings or cases in which, during the 
previous 4 years, the witness testified as an expert in a trial, an 
administrative proceeding, or by deposition; and
    (vi) A statement of the compensation to be paid for the study and 
testimony in the proceeding.
    (3) Witnesses who are not required to provide a written report. 
Unless otherwise stipulated or ordered by the presiding officer, if the 
witness is not required to provide a written report under paragraph 
(d)(2) of this section, the disclosure must state:
    (i) The subject matter on which the witness is expected to present 
evidence as an expert; and
    (ii) Summary of the facts and opinions to which the witness is 
expected to testify.
    (4) Time to disclose expert testimony. The time for disclosure of 
expert testimony must be addressed by the parties when they confer as 
provided in paragraph (h) of this section and, if applicable, must be 
included in the proposed discovery schedule submitted to the presiding 
officer.
    (e) Scope of discovery and limits. (1) Unless otherwise limited by 
the presiding officer, or as otherwise provided in this subpart, the 
scope of discovery is as follows: Parties may obtain discovery regarding 
any nonprivileged matter that is relevant to any party's claim or 
defense--including the existence, description, nature, custody, 
condition, and location of any documents or other tangible things and 
the identity and location of persons who know of any discoverable 
matter. For good cause, the presiding officer may order discovery of any 
matter relevant to the subject matter involved in the action. Relevant 
information need not be admissible at hearing if the discovery appears 
reasonably calculated to lead to the discovery of admissible evidence.
    (2) Limitations on frequency and extent. (i) Specific limitations on 
electronically stored information. A party need not provide discovery of 
electronically stored information from sources that the party identifies 
as not reasonably accessible because of undue burden or cost. On motion 
to compel discovery or for a protective order, the party from whom 
discovery is sought must show that the information is not reasonably 
accessible because of undue burden or cost. If that showing is made, the 
presiding officer may nonetheless order discovery from such sources if 
the requesting party shows good cause. The presiding officer may specify 
conditions for the discovery.

[[Page 55]]

    (ii) When required. On motion or on its own, the presiding officer 
may limit the frequency or extent of discovery otherwise allowed by 
these rules if the presiding officer determines that:
    (A) The discovery sought is unreasonably cumulative or duplicative, 
or can be obtained from some other source that is more convenient, less 
burdensome, or less expensive;
    (B) The party seeking discovery has had ample opportunity to obtain 
the information by discovery in the action; or
    (C) The burden or expense of the proposed discovery outweighs its 
likely benefit, considering the needs of the proceeding, the amount in 
controversy, the parties' resources, the importance of the issues at 
stake in the action, and the importance of the discovery in resolving 
the issues.
    (f) Scope of discovery and limits--experts. (1) A party may depose 
any person who has been identified as an expert whose opinions may be 
presented in a proceeding. If a report is required of the witness, the 
deposition may be conducted only after the report is provided.
    (2) Drafts of any report or disclosure required by these rules are 
not discoverable regardless of the form in which the draft is recorded.
    (3) Communications between the party's attorney and any expert 
witness required to provide a report are not discoverable regardless of 
the form of communications, except to the extent that the communications 
relate to compensation for the expert's study or testimony; identify 
facts or data that the party's attorney provided and that the expert 
considered in forming the opinions to be expressed; or identify 
assumptions that the party's attorney provided and that the expert 
relied on in forming the opinions to be expressed.
    (4) A party may not by interrogatories or deposition discover facts 
known or opinions held by an expert who has been retained or specially 
employed by another party in anticipation of litigation or to prepare 
for a proceeding and who is not expected to be presented as a witness; 
provided, however, that the presiding officer may permit such discovery 
and may impose such conditions as deemed appropriate upon a showing of 
exceptional circumstances under which it is impracticable for the party 
to obtain facts or opinions on the same subject by other means.
    (g) Completion of discovery. Discovery must be completed within 150 
days of the service of a respondent's answer to the complaint or Order 
of Investigation and Hearing.
    (h) Duty of the parties to confer. In all proceedings in which the 
procedures of this subpart are used, it is the duty of the parties to 
confer within 15 days after receipt of a respondent's answer to a 
complaint or Order of Investigation and Hearing in order to: establish a 
schedule for the completion of discovery, including disclosures and 
discovery related to experts, within the 150-day period prescribed in 
paragraph (g) of this section; resolve to the fullest extent possible 
disputes relating to discovery matters; and expedite, limit, or 
eliminate discovery by use of admissions, stipulations and other 
techniques. The parties must submit the schedule to the presiding 
officer not later than 5 days after the conference. Nothing in this rule 
should be construed to preclude the parties from conducting discovery 
and conferring at an earlier date.
    (i)(1) Conferences by order of the presiding officer. The presiding 
officer may at any time order the parties or their attorneys to 
participate in a conference at which the presiding officer may direct 
the proper use of the procedures of this subpart or make such orders as 
may be necessary to resolve disputes with respect to discovery and to 
prevent delay or undue inconvenience.
    (2) Resolution of disputes. After making every reasonable effort to 
resolve discovery disputes, a party may request a conference or rulings 
from the presiding officer on such disputes. If necessary to prevent 
undue delay or otherwise facilitate conclusion of the proceeding, the 
presiding officer may order a hearing to commence before the completion 
of discovery.
    (j) Protective orders. (1) In general. A party or any person from 
whom discovery is sought may move for a protective order. The motion 
must include a certification that the movant has in

[[Page 56]]

good faith conferred or attempted to confer with other affected parties 
in an effort to resolve the dispute without Commission or presiding 
officer action. The Commission or presiding officer may, for good cause, 
issue an order to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (i) Forbidding the disclosure or discovery;
    (ii) Specifying terms, including time and place, for the disclosure 
or discovery;
    (iii) Prescribing a discovery method other than the one selected by 
the party seeking discovery;
    (iv) Forbidding inquiry into certain matters, or limiting the scope 
of disclosure or discovery to certain matters;
    (v) Designating the persons who may be present while the discovery 
is conducted;
    (vi) Requiring that a deposition be sealed and opened only on 
Commission or presiding officer order;
    (vii) Requiring that a trade secret or other confidential research, 
development, or commercial information not be disclosed or be disclosed 
only in a specified way; or
    (viii) Requiring that the parties simultaneously file specified 
documents or information in sealed envelopes, to be opened as the 
Commission or presiding officer directs.
    (2) Ordering discovery. If a motion for a protective order is denied 
in whole or in part, the Commission or presiding officer may, on just 
terms, order that any party or person provide or permit discovery.
    (k) Supplementing responses. A party who has made a disclosure under 
paragraph (b) or (d) of this section, or who has responded to an 
interrogatory, request for production, or request for admission, must 
supplement or correct its disclosure or response:
    (1) In a timely manner if the party learns that in some material 
respect the disclosure or response is incomplete or incorrect, and if 
the additional or corrective information has not otherwise been made 
known to the other parties during the discovery process or in written 
communication; or
    (2) As ordered by the presiding officer.
    (l) Stipulations. Unless the presiding officer orders otherwise, the 
parties may stipulate that other procedures governing or limiting 
discovery be modified, but a stipulation extending the time for any form 
of discovery must have presiding officer's approval if it would 
interfere with the time set for completing discovery, for adjudicating a 
motion, or for hearing. [Rule 201.]

[49 FR 44369, Nov. 6, 1984, as amended at 78 FR 45071, July 26, 2013]



Sec. 502.202  Persons before whom depositions may be taken.

    (a) Within the United States. (1) In general. Within the United 
States or a territory or insular possession subject to United States 
jurisdiction, a deposition must be taken before:
    (i) An officer authorized to administer oaths either by federal law 
or by the law in the place of examination; or
    (ii) A person appointed by the Commission or the presiding officer 
to administer oaths and take testimony.
    (b) In a foreign country. (1) In general. A deposition may be taken 
in a foreign country:
    (i) Under an applicable treaty or convention;
    (ii) under a letter of request, whether or not captioned a ``letter 
rogatory'';
    (iii) On notice, before a person authorized to administer oaths 
either by federal law or by the law in the place of examination; or
    (iv) Before a person authorized by the Commission or the presiding 
officer to administer any necessary oath and take testimony.
    (2) Issuing a letter of request or an authorization. A letter of 
request, an authorization, or both may be issued:
    (i) On appropriate terms after an application and notice of it; and
    (ii) Without a showing that taking the deposition in another manner 
is impracticable or inconvenient.
    (3) Form of a request, notice, or authorization. When a letter of 
request or any other device is used according to a treaty or convention, 
it must be captioned in the form prescribed by that

[[Page 57]]

treaty or convention. A letter of request may be addressed ``To the 
Appropriate Authority in [name of country].'' A deposition notice or an 
authorization must designate by name or descriptive title the person 
before whom the deposition is to be taken.
    (4) Letter of request--admitting evidence. Evidence obtained in 
response to a letter of request need not be excluded merely because it 
is not a verbatim transcript, because the testimony was not taken under 
oath, or because of any similar departure from the requirements for 
depositions taken within the United States.
    (c) Disqualification. A deposition must not be taken before a person 
who is any party's relative, employee, or attorney; who is related to or 
employed by any party's attorney; or who is financially interested in 
the action. [Rule 202.]



Sec. 502.203  Depositions by oral examination.

    (a) When a deposition may be taken. (1) Without leave. A party may, 
by oral questions, depose any person, including a party, without leave 
of the presiding officer except as provided in Sec. 502.203(a)(2). The 
deponent's attendance may be compelled by subpoena under subpart I of 
this part.
    (2) With leave. A party must obtain leave of the presiding officer, 
if the parties have not stipulated to the deposition and:
    (i) The deposition would result in more than 20 depositions being 
taken under this rule or Sec. 502.204 by any party; or
    (ii) The deponent has already been deposed in the case.
    (b) Notice of the deposition; other formal requirements. (1) Notice 
in general. A party who wants to depose a person by oral questions must 
give reasonable written notice to every other party. The notice must 
state the time and place of the deposition and, if known, the deponent's 
name and address. If the name is unknown, the notice must provide a 
general description sufficient to identify the person or the particular 
class or group to which the person belongs.
    (2) Producing documents. If a subpoena duces tecum is to be served 
on the deponent, the materials designated for production, as set out in 
the subpoena, must be listed in the notice or in an attachment. The 
notice to a party deponent may be accompanied by a request under Sec. 
502.206 to produce documents and tangible things at the deposition.
    (3) Method of recording. (i) Method stated in the notice. The party 
who notices the deposition must state in the notice the method for 
recording the testimony. Unless the presiding officer orders otherwise, 
testimony may be recorded by audio, audiovisual, or stenographic means. 
The noticing party bears the recording costs. Any party may arrange to 
transcribe a deposition.
    (ii) Additional method. With prior notice to the deponent and other 
parties, any party may designate another method for recording the 
testimony in addition to that specified in the original notice. That 
party bears the expense of the additional record or transcript unless 
the presiding officer orders otherwise.
    (4) By remote means. The parties may stipulate, or the presiding 
officer may on motion order, that a deposition be taken by telephone or 
other remote means.
    (5) Officer's duties. (i) Before the deposition. Unless the parties 
stipulate otherwise, a deposition must be conducted before an officer 
appointed or designated under Sec. 502.202. The officer must begin the 
deposition with an on-the-record statement that includes:
    (A) The officer's name and business address;
    (B) The date, time, and place of the deposition;
    (C) The deponent's name;
    (D) The officer's administration of the oath or affirmation to the 
deponent; and
    (E) The identity of all persons present.
    (ii) Conducting the deposition; avoiding distortion. If the 
deposition is recorded nonstenographically, the officer must repeat the 
items in Sec. 502.203(b)(5)(i)(A) through (C) at the beginning of each 
unit of the recording medium. The deponent's and attorneys' appearance 
or demeanor must not be distorted through recording techniques.
    (iii) After the deposition. At the end of a deposition, the officer 
must state on

[[Page 58]]

the record that the deposition is complete and must set out any 
stipulations made by the attorneys about custody of the transcript or 
recording and of the exhibits, or about any other pertinent matters.
    (6) Notice or subpoena directed to an organization. In its notice or 
subpoena, a party may name as the deponent a public or private 
corporation, a partnership, an association, a governmental agency, or 
other entity and must describe with reasonable particularity the matters 
for examination. The named organization must then designate one or more 
officers, directors, or managing representatives, or designate other 
persons who consent to testify on its behalf; and it may set out the 
matters on which each person designated will testify. A subpoena must 
advise a nonparty organization of its duty to make this designation. The 
persons designated must testify about information known or reasonably 
available to the organization. This paragraph (6) does not preclude a 
deposition by any other procedure allowed by these rules.
    (c) Examination and cross-examination; record of the examination; 
objections; written questions. (1) Examination and cross-examination. 
The examination and cross-examination of a deponent proceed as they 
would at hearing under the provisions of Sec. 502.154. After putting 
the deponent under oath or affirmation, the officer must record the 
testimony by the method designated under Sec. 502.203(b)(3). The 
testimony must be recorded by the officer personally or by a person 
acting in the presence and under the direction of the officer.
    (2) Objections. An objection at the time of the examination, whether 
to evidence, to a party's conduct, to the officer's qualifications, to 
the manner of taking the deposition, or to any other aspect of the 
deposition, must be noted on the record, but the examination still 
proceeds; the testimony is taken subject to any objection. An objection 
must be stated concisely in a nonargumentative and nonsuggestive manner. 
A person may instruct a deponent not to answer only when necessary to 
preserve a privilege, to enforce a limitation ordered by the presiding 
officer, or to present a motion under Sec. 502.203(d)(2).
    (3) Participating through written questions. Instead of 
participating in the oral examination, a party may serve written 
questions in a sealed envelope on the party noticing the deposition, who 
must deliver them to the officer. The officer must ask the deponent 
those questions and record the answers verbatim.
    (d) Duration; sanction; motion to terminate or limit. (1) Duration. 
Unless otherwise stipulated or ordered by the presiding officer, a 
deposition is limited to 1 day of 7 hours. The presiding officer must 
allow additional time consistent with Sec. 502.201(e)(2) if needed to 
fairly examine the deponent or if the deponent, another person, or any 
other circumstance impedes or delays the examination.
    (2) Motion to terminate or limit. (i) Grounds. At any time during a 
deposition, the deponent or a party may move to terminate or limit it on 
the ground that it is being conducted in bad faith or in a manner that 
unreasonably annoys, embarrasses, or oppresses the deponent or party. 
The motion may be filed with the presiding officer. If the objecting 
deponent or party so demands, the deposition must be suspended for the 
time necessary to obtain an order.
    (ii) Order. The presiding officer may order that the deposition be 
terminated or may limit its scope and manner as provided in Sec. 
502.201(j). If terminated, the deposition may be resumed only by order 
of the Commission or presiding officer.
    (e) Review by the witness; changes. (1) Review; statement of 
changes. On request by the deponent or a party before the deposition is 
completed, the deponent must be allowed 15 days after being notified by 
the officer that the transcript or recording is available in which:
    (i) To review the transcript or recording; and
    (ii) If there are changes in form or substance, to sign a statement 
listing the changes and the reasons for making them.
    (2) Changes indicated in the officer's certificate. The officer must 
note in the certificate prescribed by Sec. 502.203(f)(1) whether a 
review was requested and, if

[[Page 59]]

so, must attach any changes the deponent makes during the 15-day period.
    (f) Certification and delivery; exhibits; copies of the transcript 
or recording. (1) Certification and delivery. The officer must certify 
in writing that the witness was duly sworn and that the deposition, 
transcript or recording accurately records the witness's testimony. The 
certificate must accompany the record of the deposition. Unless the 
presiding officer orders otherwise, the officer must seal the deposition 
in an envelope or package bearing the title of the action and marked 
``Deposition of [witness's name]'' and must promptly send it to the 
attorney who arranged for the transcript or recording. The attorney must 
store it under conditions that will protect it against loss, 
destruction, tampering, or deterioration.
    (2) Documents and tangible things. (i) Originals and copies. 
Documents and tangible things produced for inspection during a 
deposition must, on a party's request, be marked for identification and 
attached to the deposition. Any party may inspect and copy them. But if 
the person who produced them wants to keep the originals, the person 
may:
    (A) Offer copies to be marked, attached to the deposition, and then 
used as originals, after giving all parties a fair opportunity to verify 
the copies by comparing them with the originals; or
    (B) Give all parties a fair opportunity to inspect and copy the 
originals after they are marked, in which event the originals may be 
used as if attached to the deposition.
    (ii) Order regarding the originals. Any party may move for an order 
that the originals be attached to the deposition pending final 
disposition of the case.
    (3) Copies of the transcript or recording. Unless otherwise 
stipulated or ordered by the presiding officer, the officer must retain 
the stenographic notes of a deposition taken stenographically or a copy 
of the recording of a deposition taken by another method. When paid 
reasonable charges, the officer must furnish a copy of the transcript or 
recording to any party or the deponent. [Rule 203.]



Sec. 502.204  Depositions by written questions.

    (a) When a deposition may be taken. (1) Without leave. A party may, 
by written questions, depose any person, including a party, without 
leave of the presiding officer except as provided in paragraph (a)(2) of 
this section. The deponent's attendance may be compelled by subpoena 
under subpart I of this part.
    (2) With leave. A party must obtain leave of the presiding officer, 
if the parties have not stipulated to the deposition and:
    (i) The deposition would result in more than 20 depositions being 
taken under this rule or Sec. 502.203 by any party;
    (ii) The deponent has already been deposed in the case.
    (3) Service; required notice. A party who wants to depose a person 
by written questions must serve them on every other party, with a notice 
stating, if known, the deponent's name and address. If the name is 
unknown, the notice must provide a general description sufficient to 
identify the person or the particular class or group to which the person 
belongs. The notice must also state the name or descriptive title and 
the address of the officer before whom the deposition will be taken.
    (4) Questions directed to an organization. A public or private 
corporation, a partnership, an association, or a governmental agency may 
be deposed by written questions in accordance with Sec. 502.203(b)(6).
    (5) Questions from other parties. Any questions to the deponent from 
other parties must be served on all parties as follows: Cross-questions, 
within 14 days after being served with the notice and direct questions; 
redirect questions, within 7 days after being served with cross-
questions; and recross-questions, within 7 days after being served with 
redirect questions. The presiding officer may, for good cause, extend or 
shorten these times.
    (b) Delivery to the officer; officer's duties. The party who noticed 
the deposition must deliver to the officer before whom the deposition 
will be taken a copy of all the questions served and of the notice. The 
officer must promptly proceed to:

[[Page 60]]

    (1) Take the deponent's testimony in response to the questions;
    (2) Prepare and certify the deposition; and
    (3) Send it to the party, attaching a copy of the questions and of 
the notice.
    (c) Notice of completion or filing. (1) Completion. The party who 
noticed the deposition must notify all other parties when it is 
completed.
    (2) Filing. A party who files the deposition must promptly notify 
all other parties of the filing. [Rule 204.]



Sec. 502.205  Interrogatories to parties.

    (a) In general. (1) Number. Unless otherwise stipulated or ordered 
by the presiding officer, a party may serve on any other party no more 
than 50 written interrogatories, including all discrete subparts. Leave 
to serve additional interrogatories may be granted to the extent 
consistent with Sec. 502.201(e)(2).
    (2) Scope. An interrogatory may relate to any matter that may be 
inquired into under Sec. 502.201(e) and (f). An interrogatory is not 
objectionable merely because it asks for an opinion or contention that 
relates to fact or the application of law to fact, but the presiding 
officer may order that the interrogatory need not be answered until 
designated discovery is complete, or until a prehearing conference or 
some other time.
    (b) Answers and objections. (1) Responding party. The 
interrogatories must be answered:
    (i) By the party to whom they are directed; or
    (ii) If that party is a public or private corporation, a 
partnership, an association, or a governmental agency, by any officer or 
representative, who must furnish the information available to the party.
    (2) Time to respond. The responding party must serve its answers and 
any objections within 30 days after being served with the 
interrogatories. A shorter or longer time may be stipulated to as 
provided in Sec. 502.201(l) of this subpart or be ordered by the 
presiding officer.
    (3) Answering each interrogatory. Each interrogatory must, to the 
extent it is not objected to, be answered separately and fully in 
writing under oath.
    (4) Objections. The grounds for objecting to an interrogatory must 
be stated with specificity. Any ground not stated in a timely objection 
is waived unless the presiding officer, for good cause, excuses the 
failure.
    (5) Signature. The person who makes the answers must sign them, and 
the attorney who objects must sign any objections.
    (c) Use. An answer to an interrogatory may be used to the extent 
allowed by the rules in this part.
    (d) Option to produce business records. If the answer to an 
interrogatory may be determined by examining, auditing, compiling, 
abstracting, or summarizing a party's business records (including 
electronically stored information), and if the burden of deriving or 
ascertaining the answer will be substantially the same for either party, 
the responding party may answer by:
    (1) Specifying the records that must be reviewed, in sufficient 
detail to enable the interrogating party to locate and identify them as 
readily as the responding party could; and
    (2) Giving the interrogating party a reasonable opportunity to 
examine and audit the records and to make copies, compilations, 
abstracts, or summaries. [Rule 205.]



Sec. 502.206  Producing documents, electronically stored information,
and tangible things, or entering onto land, for inspection and other 

purposes.

    (a) In general. A party may serve on any other party a request 
within the scope of Sec. 502.201(e) and (f):
    (1) To produce and permit the requesting party or its representative 
to inspect, copy, test, or sample the following items in the responding 
party's possession, custody, or control:
    (i) Any designated documents or electronically stored information, 
including writings, drawings, graphs, charts, photographs, sound 
recordings, images, and other data or data compilations, stored in any 
medium from which information can be obtained either directly or, if 
necessary, after translation by the responding party into a reasonably 
usable form; or
    (ii) Any designated tangible things; or

[[Page 61]]

    (2) To permit entry onto designated land or other property possessed 
or controlled by the responding party, so that the requesting party may 
inspect, measure, survey, photograph, test, or sample the property or 
any designated object or operation on it.
    (b) Procedure. (1) Contents of the request. The request:
    (i) Must describe with reasonable particularity each item or 
category of items to be inspected;
    (ii) Must specify a reasonable time, place, and manner for the 
inspection and for performing the related acts; and
    (iii) May specify the form or forms in which electronically stored 
information is to be produced.
    (2) Responses and objections. (i) Time to respond. The party to whom 
the request is directed must respond in writing within 30 days after 
being served. A shorter or longer time may be stipulated to as provided 
in Sec. 502.201(l) of this subpart or be ordered by the presiding 
officer.
    (ii) Responding to each item. For each item or category, the 
response must either state that inspection and related activities will 
be permitted as requested or state an objection to the request, 
including the reasons.
    (iii) Objections. An objection to part of a request must specify the 
part and permit inspection of the rest.
    (iv) Responding to a request for production of electronically stored 
information. The response may state an objection to a requested form for 
producing electronically stored information. If the responding party 
objects to a requested form, or if no form was specified in the request, 
the party must state the form or forms it intends to use.
    (v) Producing the documents or electronically stored information. 
Unless otherwise stipulated or ordered by the presiding officer, these 
procedures apply to producing documents or electronically stored 
information:
    (A) A party must produce documents as they are kept in the usual 
course of business or must organize and label them to correspond to the 
categories in the request;
    (B) If a request does not specify a form for producing 
electronically stored information, a party must produce it in a form or 
forms in which it is ordinarily maintained or in a reasonably usable 
form or forms; and
    (C) A party need not produce the same electronically stored 
information in more than one form.
    (c) Nonparties. By subpoena under subpart I of this part, a nonparty 
may be compelled to produce documents and tangible things or to permit 
an inspection. [Rule 206.]



Sec. 502.207  Requests for admission.

    (a) Scope and procedure. (1) Scope. A party may serve on any other 
party a written request to admit, for the purposes of the pending action 
only, the truth of any nonprivileged relevant matters relating to facts, 
the application of law to fact, or opinions about either, and the 
genuineness of any described documents.
    (2) Form; copies of documents. Each matter must be separately 
stated. A request to admit the genuineness of a document must be 
accompanied by a copy of the document unless it is, or has been, 
otherwise furnished or made available for inspection and copying.
    (3) Time to respond; effect of failure to respond. A matter is 
admitted unless, within 30 days after being served, the party to whom 
the request is directed serves on the requesting party a written answer 
or objection addressed to the matter and signed by the party or its 
attorney. A shorter or longer time for responding may be stipulated to 
as provided in Sec. 502.201(l) of this subpart or be ordered by the 
presiding officer.
    (4) Answer. If a matter is not admitted, the answer must 
specifically deny it or state in detail why the answering party cannot 
truthfully admit or deny it. A denial must fairly respond to the 
substance of the matter; and when good faith requires that a party 
qualify an answer or deny only a part of a matter, the answer must 
specify the part admitted and qualify or deny the rest. The answering 
party may assert lack of knowledge or information as a reason for 
failing to admit or deny only if the party states that it has made 
reasonable inquiry and that the information it knows or can readily 
obtain is insufficient to enable it to admit or deny.

[[Page 62]]

    (5) Objections. The grounds for objecting to a request must be 
stated. A party may not object solely on the ground that the request 
presents a genuine issue for adjudication.
    (6) Motion regarding the sufficiency of an answer or objection. The 
requesting party may move for a determination of the sufficiency of an 
answer or objection. Unless the presiding officer finds an objection 
justified, the presiding officer must order that an answer be served. On 
finding that an answer does not comply with this rule, the presiding 
officer may order either that the matter is admitted or that an amended 
answer be served. The presiding officer may defer a decision until a 
prehearing conference or a specified time prior to hearing.
    (b) Effect of admission; withdrawal or amendment of admission. A 
matter admitted under this rule is conclusively established unless the 
presiding officer, on motion, permits the admission to be withdrawn or 
amended. The presiding officer may permit withdrawal or amendment if it 
would promote the presentation of the merits of the action and if the 
presiding officer is not persuaded that it would prejudice the 
requesting party in maintaining or defending the action on the merits. 
An admission under this rule is not an admission for any other purpose 
and cannot be used against the party in any other proceeding. [Rule 
207.]



Sec. 502.208  Use of discovery procedures directed to Commission staff
personnel.

    (a) Discovery procedures described in Sec. Sec. 502.202 through 
502.207, directed to Commission staff personnel must be permitted and 
must be governed by the procedures set forth in those sections except as 
modified by paragraphs (b) and (c) of this section. All notices to take 
depositions, written interrogatories, requests for production of 
documents and other things, requests for admissions, and any motions in 
connection with the foregoing, must be served on the Secretary of the 
Commission.
    (b) The General Counsel must designate an attorney to represent any 
Commission staff personnel to whom any discovery requests or motions are 
directed. The attorney so designated must not thereafter participate in 
the Commission's decision-making process concerning any issue in the 
proceeding.
    (c) Rulings of the presiding officer issued under paragraph (a) of 
this section must become final rulings of the Commission unless an 
appeal is filed within 10 days after date of issuance of such rulings or 
unless the Commission on its own motion reverses, modifies, or stays 
such rulings within 20 days of their issuance. Replies to appeals may be 
filed within 10 days. No motion for leave to appeal is necessary in such 
instances and no ruling of the presiding officer must be effective until 
20 days from date of issuance unless the Commission otherwise directs. 
[Rule 208.]



Sec. 502.209  Use of depositions at hearings.

    (a) Using depositions. (1) In general. At a hearing, all or part of 
a deposition may be used against a party on these conditions:
    (i) The party was present or represented at the taking of the 
deposition or had reasonable notice of it;
    (ii) It is used to the extent it would be admissible if the deponent 
were present and testifying; and
    (iii) The use is allowed by Sec. 502.209(a)(2) through (7).
    (2) Impeachment and other uses. Any party may use a deposition to 
contradict or impeach the testimony given by the deponent as a witness, 
or for any other purpose allowed by Sec. 502.156 of subpart J of this 
part.
    (3) Deposition of party, representative, or designee. An adverse 
party may use for any purpose the deposition of a party or anyone who, 
when deposed, was the party's officer, director, managing 
representative, or designee under Sec. 502.203(b)(6) or Sec. 
502.204(a)(4).
    (4) Unavailable witness. A party may use for any purpose the 
deposition of a witness, whether or not a party, if the Commission or 
presiding officer finds:
    (i) That the witness is dead;
    (ii) That the witness cannot attend or testify because of age, 
illness, infirmity, or imprisonment;
    (iii) That the party offering the deposition could not procure the 
witness's attendance by subpoena; or

[[Page 63]]

    (iv) On motion and notice, that exceptional circumstances make it 
desirable, in the interest of justice and with due regard to the 
importance of live testimony at a hearing, to permit the deposition to 
be used.
    (5) Using part of a deposition. If a party offers in evidence only 
part of a deposition, an adverse party may require the offeror to 
introduce other parts that in fairness should be considered with the 
part introduced, and any party may itself introduce any other parts.
    (6) Substituting a party. Substituting a party does not affect the 
right to use a deposition previously taken.
    (7) Deposition taken in an earlier action. A deposition lawfully 
taken and, if required, filed in any Federal or State court action may 
be used in a later action involving the same subject matter between the 
same parties, or their representatives or successors in interest, to the 
same extent as if taken in the later action. A deposition previously 
taken may also be used as allowed by Sec. 502.156 of subpart J of this 
part.
    (b) Objections to admissibility. Subject to Sec. 502.202(b) and 
Sec. 502.209(d)(3), an objection may be made at a hearing to the 
admission of any deposition testimony that would be inadmissible if the 
witness were present and testifying.
    (c) Form of presentation. Unless the presiding officer orders 
otherwise, a party must provide a transcript of any deposition testimony 
the party offers, but may provide the presiding officer with the 
testimony in nontranscript form as well.
    (d) Waiver of objections. (1) To the notice. An objection to an 
error or irregularity in a deposition notice is waived unless promptly 
served in writing on the party giving the notice.
    (2) To the officer's qualification. An objection based on 
qualification of the officer before whom a deposition is to be taken is 
waived if not made:
    (i) Before the deposition begins; or
    (ii) Promptly after the basis for disqualification becomes known or, 
with reasonable diligence, could have been known.
    (3) To the taking of the deposition. (i) Objection to competence, 
relevance, or materiality. An objection to a deponent's competence, or 
to the competence, relevance, or materiality of testimony, is not waived 
by a failure to make the objection before or during the deposition, 
unless the ground for it might have been corrected at that time.
    (ii) Objection to an error or irregularity. An objection to an error 
or irregularity at an oral examination is waived if:
    (A) It relates to the manner of taking the deposition, the form of a 
question or answer, the oath or affirmation, a party's conduct, or other 
matters that might have been corrected at that time; and
    (B) It is not timely made during the deposition.
    (iii) Objection to a written question. An objection to the form of a 
written question under Sec. 502.204 of this subpart is waived if not 
served in writing on the party submitting the question within the time 
for serving responsive questions or, if the question is a recross-
question, within 7 days after being served with it.
    (4) To completing and returning the deposition. An objection to how 
the officer transcribed the testimony, or prepared, signed, certified, 
sealed, endorsed, sent, or otherwise dealt with the deposition, is 
waived unless a motion to suppress is made promptly after the error or 
irregularity becomes known or, with reasonable diligence, could have 
been known. [Rule 209.]



Sec. 502.210  Motions to compel initial disclosures or compliance with
discovery requests; failure to comply with order to make disclosure or

answer or produce documents; sanctions; enforcement.

    (a) Motion for order to compel initial disclosures or compliance 
with discovery requests. (1) A party may file a motion pursuant to Sec. 
502.69 for an order compelling compliance with the requirement for 
initial disclosures provided in Sec. 502.201 or with its discovery 
requests as provided in this subpart, if a deponent fails to answer a 
question asked at a deposition or by written questions; a corporation or 
other entity fails to make a designation of an individual who will 
testify on its behalf; a party fails to answer an interrogatory; or a 
party fails to respond that inspection

[[Page 64]]

will be permitted, or fails to permit inspection, as requested under 
Sec. 502.206 of this subpart. For purposes of this section, a failure 
to make a disclosure, answer, or respond includes an evasive or 
incomplete disclosure, answer, or response.
    (2) A motion to compel must include:
    (i) A certification that the moving party has conferred in good 
faith or attempted to confer with the party failing to make initial 
disclosure or respond to discovery requests as provided in this subpart 
in an effort to obtain compliance without the necessity of a motion;
    (ii) A copy of the discovery requests that have not been answered or 
for which evasive or incomplete responses have been given. If the motion 
is limited to specific discovery requests, only those requests are to be 
included;
    (iii) If a disclosure has been made or an answer or response has 
been given, a copy of the disclosure, answer, or response in its 
entirety;
    (iv) A copy of the certificate of service that accompanied the 
discovery request; and
    (v) A request for relief and supporting argument, if any.
    (3) A party may file a response to the motion within 7 days of the 
service date of the motion. Unless there is a dispute with respect to 
the accuracy of the versions of the discovery requests, responses 
thereto, or the disclosures submitted by the moving party, the response 
must not include duplicative copies of them.
    (4) A reply to a response is not allowed unless requested by the 
presiding officer, or upon a showing of extraordinary circumstances.
    (b) Failure to comply with order compelling disclosures or 
discovery. If a party or a party's officer or authorized representative 
fails or refuses to obey an order requiring it to make disclosures or to 
respond to discovery requests, the presiding officer upon his or her own 
initiative or upon motion of a party may make such orders in regard to 
the failure or refusal as are just. A motion must include a 
certification that the moving party has conferred in good faith or 
attempted to confer with the disobedient party in an effort to obtain 
compliance without the necessity of a motion. An order of the presiding 
officer may:
    (1) Direct that the matters included in the order or any other 
designated facts must be taken to be established for the purposes of the 
action as the party making the motion claims;
    (2) Prohibit the disobedient party from supporting or opposing 
designated claims or defenses, or from introducing designated matters in 
evidence; or
    (3) Strike pleadings in whole or in part; staying further 
proceedings until the order is obeyed; or dismissing the action or 
proceeding or any party thereto, or rendering a decision by default 
against the disobedient party.
    (c) Enforcement of orders and subpoenas. In the event of refusal to 
obey an order or failure to comply with a subpoena, the Attorney General 
at the request of the Commission, or any party injured thereby may seek 
enforcement by a United States district court having jurisdiction over 
the parties. Any action with respect to enforcement of subpoenas or 
orders relating to depositions, written interrogatories, or other 
discovery matters must be taken within 20 days of the date of refusal to 
obey or failure to comply. A private party must advise the Commission 5 
days (excluding Saturdays, Sundays and legal holidays) before applying 
to the court of its intent to seek enforcement of such subpoenas and 
discovery orders.
    (d) Persons and documents located in a foreign country. Orders of 
the presiding officer directed to persons or documents located in a 
foreign country must become final orders of the Commission unless an 
appeal to the Commission is filed within 10 days after date of issuance 
of such orders or unless the Commission on its own motion reverses, 
modifies, or stays such rulings within 20 days of their issuance. 
Replies to appeals may be filed within 10 days. No motion for leave to 
appeal is necessary in such instances and no orders of the presiding 
officer must be effective until 20 days from date of issuance unless the 
Commission otherwise directs. [Rule 210.]

[[Page 65]]



     Subpart M_Briefs; Requests for Findings; Decisions; Exceptions



Sec. 502.221  Briefs; requests for findings.

    (a) The presiding officer shall fix the time and manner of filing 
briefs and any enlargement of time. The period of time allowed shall be 
the same for all parties unless the presiding officer, for good cause 
shown, directs otherwise.
    (b) Briefs shall be served upon all parties pursuant to subpart H of 
this part.
    (c) In investigations instituted on the Commission's own motion, the 
presiding officer may require the Bureau of Enforcement to file a 
request for findings of fact and conclusions within a reasonable time 
prior to the filing of briefs. Service of the request shall be in 
accordance with the provisions of subpart H of this part.
    (d) Unless otherwise ordered by the presiding officer, opening or 
initial briefs shall contain the following matters in separately 
captioned sections: (1) Introductory section describing the nature and 
background of the case, (2) proposed findings of fact in serially 
numbered paragraphs with reference to exhibit numbers and pages of the 
transcript, (3) argument based upon principles of law with appropriate 
citations of the authorities relied upon, and (4) conclusions.
    (e) All briefs shall contain a subject index or table of contents 
with page references and a list of authorities cited.
    (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.]

[49 FR 44369, Nov. 6, 1984, as amended at 61 FR 51233, Oct. 1, 1996; 64 
FR 7810, Feb. 17, 1999]



Sec. 502.222  Requests for enlargement of time for filing briefs.

    Requests for enlargement of time within which to file briefs shall 
conform to the requirements of Sec. 502.102. Except for good cause 
shown, such requests shall be filed and served pursuant to subpart H of 
this part not later than five (5) days before the expiration of the time 
fixed for the filing of the briefs. [Rule 222.]



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.]

[64 FR 7810, Feb. 17, 1999]



Sec. 502.224  Separation of functions.

    The separation of functions as required by 5 U.S.C. 554(d) shall be 
observed in proceedings under subparts A to Q inclusive, of this part. 
[Rule 224.]



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.]

[64 FR 7810, Feb. 17, 1999]

[[Page 66]]



Sec. 502.226  Decision based on official notice; public documents.

    (a) Official notice may be taken of such matters as might be 
judicially noticed by the courts, or of technical or scientific facts 
within the general knowledge of the Commission as an expert body, 
provided, that where a decision or part thereof rests on the official 
notice of a material fact not appearing in the evidence in the record, 
the fact of official notice shall be so stated in the decision, and any 
party, upon timely request, shall be afforded an opportunity to show the 
contrary.
    (b) Whenever there is offered in evidence (in whole or in part) a 
public document, such as an official report, decision, opinion, or 
published scientific or economic statistical data issued by any of the 
executive departments (or their subdivisions), legislative agencies or 
committees, or administrative agencies of the Federal Government 
(including Government-owned corporations), or a similar document issued 
by a state or its agencies, and such document (or part thereof) has been 
shown by the offeror to be reasonably available to the public, such 
document need not be produced or marked for identification, but may be 
offered in evidence as a public document by specifying the document or 
relevant part thereof. [Rule 226.]



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)(1) Within twenty-two (22) days after date of service of the 
initial decision, unless a shorter period is fixed under Sec. 502.103, 
any party may file a memorandum excepting to any conclusions, findings, 
or statements contained in such decision, and a brief in support of such 
memorandum. Such exceptions and brief shall constitute one document, 
shall indicate with particularity alleged errors, shall indicate 
transcript page and exhibit number when referring to the record, and 
shall be served on all parties pursuant to subpart H of this part.
    (2) Any adverse party may file and serve a reply to such exceptions 
within twenty-two (22) days after the date of service thereof, which 
shall contain appropriate transcript and exhibit references.
    (3) Whenever the officer who presided at the reception of the 
evidence, or other qualified officer, makes an initial decision, such 
decision shall become the decision of the Commission thirty (30) days 
after date of service thereof (and the Secretary shall so notify the 
parties), unless within such 30-day period, or greater time as enlarged 
by the Commission for good cause shown, request for review is made in 
exceptions filed or a determination to review is made by the Commission 
on its own initiative.
    (4) A decision or order of dismissal by an administrative law judge 
shall only be considered final for purposes of judicial review if the 
party has first sought review by the Commission pursuant to this 
section.
    (5) Upon the filing of exceptions to, or review of, an initial 
decision, such decision shall become inoperative until the Commission 
determines the matter.
    (6) Where exceptions are filed to, or the Commission reviews, an 
initial decision, the Commission, except as it may limit the issues upon 
notice or by rule, will have all the powers which it would have in 
making the initial decision. Whenever the Commission shall determine to 
review an initial decision on its own initiative, notice of such 
intention shall be served upon the parties.
    (7) The time periods for filing exceptions and replies to 
exceptions, prescribed by this section, shall not apply to proceedings 
conducted under Sec. 502.75.
    (b)(1) If an administrative law judge has granted a motion for 
dismissal of the proceeding in whole or in part, any party desiring to 
appeal must file such appeal no later than twenty-two (22) days after 
service of the ruling on the motion in question.
    (2) Any adverse party may file and serve a reply to an appeal under 
this paragraph within twenty-two (22) days after the appeal is served.
    (3) The denial of a petition to intervene or withdrawal of a grant 
of intervention shall be deemed to be a dismissal within the meaning of 
this paragraph.

[[Page 67]]

    (c) Whenever an administrative law judge orders dismissal of a 
proceeding in whole or in part, such order, in the absence of appeal, 
shall become the order of the Commission thirty (30) days after date of 
service of such order (and the Secretary shall so notify the parties), 
unless within such 30-day period the Commission decides to review such 
order on its own motion, in which case notice of such intention shall be 
served upon the parties.
    (d) The Commission shall not, on its own initiative, review any 
initial decision or order of dismissal unless such review is requested 
by an individual Commissioner. Any such request must be transmitted to 
the Secretary within thirty (30) days after date of service of the 
decision or order. Such request shall be sufficient to bring the matter 
before the Commission for review.
    (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.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27211, May 7, 1993; 61 
FR 66617, Dec. 18, 1996; 64 FR 7810, Feb. 17, 1999]



Sec. 502.228  Request for enlargement of time for filing exceptions and
replies thereto.

    Requests for enlargement of time within which to file exceptions, 
and briefs in support thereof, or replies to exceptions shall conform to 
the applicable provisions of Sec. 502.102. Requests for extensions of 
these periods will be granted only under exceptional circumstances duly 
demonstrated in the request. Except for good cause shown, such requests 
shall be filed and served not later than five (5) days before the 
expiration of the time fixed for the filing of such documents. Any 
enlargement of time granted will automatically extend by the same period 
the date for the filing of notice or review by the Commission. [Rule 
228.]



Sec. 502.229  Certification of record by presiding or other officer.

    The presiding or other officer shall certify and transmit the entire 
record to the Commission when (a) exceptions are filed or the time 
therefor has expired, (b) notice is given by the Commission that the 
initial decision will be reviewed on its own initiative, or (c) the 
Commission requires the case to be certified to it for initial decision. 
[Rule 229.]



Sec. 502.230  Reopening by presiding officer or Commission.

    (a) Motion to reopen. At any time after the conclusion of a hearing 
in a proceeding, but before issuance by the presiding officer of a 
recommended or initial decision, any party to the proceeding may file 
with the presiding officer a motion to reopen the proceeding for the 
purpose of receiving additional evidence. A motion to reopen shall be 
served in conformity with the requirements of subpart H and shall set 
forth the grounds requiring reopening of the proceeding, including 
material changes of fact or of law alleged to have occurred since the 
conclusion of the hearing.
    (b) Reply. Within ten (10) days following service of a motion to 
reopen, any party may reply to such motion.
    (c) Reopening by presiding officer. At any time prior to filing his 
or her decision, the presiding officer upon his or her own motion may 
reopen a proceeding for the reception of further evidence.
    (d) Reopening by the Commission. Where a decision has been issued by 
the presiding officer or where a decision by the presiding officer has 
been omitted, but before issuance of a Commission decision, the 
Commission may, after petition and reply in conformity with paragraphs 
(a) and (b) of this section, or upon its own motion, reopen a proceeding 
for the purpose of taking further evidence.
    (e) Remand by the Commission. Nothing contained in this rule shall 
preclude the Commission from remanding a proceeding to the presiding 
officer for the taking of additional evidence or determining points of 
law. [Rule 230.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]

[[Page 68]]



         Subpart N_Oral Argument; Submission for Final Decision



Sec. 502.241  Oral argument.

    (a) The Commission may hear oral argument either on its own motion 
or upon the written request of a party. If oral argument before the 
Commission is desired on exceptions to an initial or recommended 
decision, or on a motion, petition, or application, a request therefor 
shall be made in writing. Any party may make such a request irrespective 
of its filing exceptions under Sec. 502.227. If a brief on exceptions 
is filed, the request for oral argument shall be incorporated in such 
brief. Requests for oral argument on any motion, petition, or 
application shall be made in the motion, petition, or application, or in 
the reply thereto. If the Commission determines to hear oral argument, a 
notice will be issued setting forth the order of presentation and the 
amount of time allotted to each party.
    (b)(1) Requests for oral argument will be granted or denied in the 
discretion of the Commission.
    (2) Parties requesting oral argument shall set forth the specific 
issues they propose to address at oral argument.
    (c) Those who appear before the Commission for oral argument shall 
confine their argument to points of controlling importance raised on 
exceptions or replies thereto. Where the facts of a case are adequately 
and accurately dealt with in the initial or recommended decision, 
parties should, as far as possible, address themselves in argument to 
the conclusions.
    (d) Effort should be made by parties taking the same position to 
agree in advance of the argument upon those persons who are to present 
their side of the case, and the names of such persons and the amount of 
time requested should be received by the Commission not later than ten 
(10) days before the date set for the argument. The fewer the number of 
persons making the argument the more effectively can the parties' 
interests be presented in the time allotted. [Rule 241.]

[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4144, Feb. 10, 1987]



Sec. 502.242  Submission to Commission for final decision.

    A proceeding will be deemed submitted to the Commission for final 
decision as follows: (a) If oral argument is had, the date of completion 
thereof, or if memoranda on points of law are permitted to be filed 
after argument, the last date of such filing; (b) if oral argument is 
not had, the last date when exceptions or replies thereto are filed, or 
if exceptions are not filed, the expiration date for such exceptions; 
(c) in the case of an initial decision, the date of notice of the 
Commission's intention to review the decision, if such notice is given. 
[Rule 242.]



Sec. 502.243  Participation of absent Commissioner.

    Any Commissioner who is not present at oral argument and who is 
otherwise authorized to participate in a decision shall participate in 
making that decision after reading the transcript of oral argument 
unless he or she files in writing an election not to participate. [Rule 
243.]



                          Subpart O_Reparation



Sec. 502.251  Proof on award of reparation.

    If many shipments or points of origin or destination are involved in 
a proceeding in which reparation is sought (See Sec. 502.63), the 
Commission will determine in its decision the issues as to violations, 
injury to complainant, and right to reparation. If complainant is found 
entitled to reparation, the parties thereafter will be given an 
opportunity to agree or make proof respecting the shipments and 
pecuniary amount of reparation due before the order of the Commission 
awarding reparation is entered. In such cases, freight bills and other 
exhibits bearing on the details of all shipments, and the amount of 
reparation on each, need not be produced at the original hearing unless 
called for or needed to develop other pertinent facts. [Rule 251.]



Sec. 502.252  Reparation statements.

    When the Commission finds that reparation is due, but that the 
amount cannot be ascertained upon the record

[[Page 69]]

before it, the complainant shall immediately prepare a statement in 
accordance with the approved reparation statement in Exhibit No. 1 to 
this subpart, showing details of the shipments on which reparation is 
claimed. This statement shall not include any shipments not covered by 
the findings of the Commission. Complainant shall forward the statement, 
together with the paid freight bills on the shipments, or true copies 
thereof, to the respondent or other person who collected the charges for 
checking and certification as to accuracy. Statements so prepared and 
certified shall be filed with the Commission for consideration in 
determining the amount of reparation due. Disputes concerning the 
accuracy of amounts may be assigned for conference by the Commission, or 
in its discretion referred for further hearing. [Rule 252.]



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 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.]

[64 FR 7810, Feb. 17, 1999]



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 (46 U.S.C. 41301-41302, 41305-41307(a)). For 
purposes of this section, ``attorney's fees'' includes the fair market 
value of the services of any person permitted to appear and practice 
before the Commission in accordance with subpart B of this part, and may 
include compensation for services rendered the complainant in a related 
proceeding in Federal court that is useful and necessary to the 
determination of a reparations award in the complaint proceeding.
    (b) Content of petitions. Petitions for attorney's fees under this 
section shall specify the number of hours claimed by each person 
representing the complainant at each identifiable stage of the 
proceeding, and shall be supported by evidence of the reasonableness of 
hours claimed and the customary fees charged by attorneys and associated 
legal representative in the community where the petitioner practices. 
Requests for additional compensation must be supported by evidence that 
the customary fees for the hours reasonably expended on the case would 
result in an unreasonable fee award.
    (c) Filing of petition. (1) Petitions for attorney's fees shall be 
filed within 30 days of a final reparation award:
    (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
    (ii) With the Commission, if exceptions were filed to, or the 
Commission reviewed, the presiding officer's reparation award decision 
pursuant to Sec. 502.227 of this part.
    (2) For purposes of this section, a reparation award shall be 
considered final after a decision disposing of the merits of a complaint 
is issued and the time

[[Page 70]]

for the filing of court appeals has run or after a court appeal has 
terminated.
    (d) Replies to petitions. Within 20 days of filing of the petition, 
a reply to the petition may be filed by the respondent, addressing the 
reasonableness of any aspect of the petitioner's claim. A respondent may 
also suggest adjustments to the claim under the criteria stated in 
paragraph (b) of this section.
    (e) Ruling on petitions. Upon consideration of a petition and any 
reply thereto, the Commission or the presiding officer shall issue an 
order stating the total amount of attorney's fees awarded. The order 
shall specify the hours and rate of compensation found awardable and 
shall explain the basis for any additional adjustments. An award order 
shall be served within 60 days of the date of the filing of the reply to 
the petition or expiration of the reply period; except that in cases 
involving a substantial dispute of facts critical to the award 
determination, the Commission or presiding officer may hold a hearing on 
such issues and extend the time for issuing a fee award order by an 
additional 30 days. The Commission or the presiding officer may adopt a 
stipulated settlement of attorney's fees.
    (f) In cases where the presiding officer issues an award order, 
appeal of that order and Commission review of that order in the absence 
of appeal shall be governed by the procedures of Sec. 502.227 of this 
part. [Rule 254.]

[52 FR 6331, Mar. 3, 1987, as amended at 58 FR 27211, May 7, 1993; 64 FR 
7811, Feb. 17, 1999; 74 FR 50716, Oct. 1, 2009]

[[Page 71]]

   Exhibit No. 1 to Subpart O [Sec. 502.252] of Part 502--Reparation 
               Statement To Be Filed Pursuant to Rule 252

                 Claim of -------------------- under the decision of the Federal Maritime Commission in Docket No. --------------------.
--------------------------------------------------------------------------------------------------------------------------------------------------------
          Date of                                                                                      As charged       Should be
          delivery    Date                       Port                                               --------------------------------             Charges
Date of  or tender   charges   Vessel   Voyage    of    Destination   Route  Commodity   Weight or                                   Reparation  paid by
  B/L        of       paid               No.    origin      port                        measurement   Rate   Amount   Rate   Amount                 *
          delivery
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 *Here insert name of person paying charges in the first instance, and state whether as consignor, consignee, or in what other capacity.


Total amount of reparation $----------------------------------------.
 
  The undersigned hereby certifies that this statement has been checked against the records of this company
   and found correct.
 
  Date ----------------------------------------.
 
---------------------------------------- Steamship Company, Collecting Carrier Respondent,
 
By ----------------------------------------, Auditor
 
By ----------------------------------------, Claimant
 
----------------------------------------, Attorney
 
(address and date)
 


[[Page 72]]



                Subpart P_Reconsideration of Proceedings



Sec. 502.261  Petitions for reconsideration and stay.

    (a) Within thirty (30) days after issuance of a final decision or 
order by the Commission, any party may file a petition for 
reconsideration. Such petition shall be limited to 25 pages in length 
and shall be served in conformity with the requirements of subpart H of 
this part. A petition will be subject to summary rejection unless it:
    (1) Specifies that there has been a change in material fact or in 
applicable law, which change has occurred after issuance of the decision 
or order;
    (2) Identifies a substantive error in material fact contained in the 
decision or order; or
    (3) Addresses a finding, conclusion or other matter upon which the 
party has not previously had the opportunity to comment or which was not 
addressed in the briefs or arguments of any party. Petitions which 
merely elaborate upon or repeat arguments made prior to the decision or 
order will not be received. A petition shall be verified if verification 
of the original pleading is required and shall not operate as a stay of 
any rule or order of the Commission.
    (b) A petition for stay of a Commission order which directs the 
discontinuance of statutory violations will not be received.
    (c) The provisions of this section are not applicable to decisions 
issued pursuant to subpart S of this part. [Rule 261.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27211, May 7, 1993]



Sec. 502.262  Reply to petition for reconsideration or stay.

    Any party may file a reply in opposition to a petition for 
reconsideration or stay within fifteen (15) days after the date of 
service of the petition in accordance with Sec. 502.74. The reply shall 
be limited to 25 pages in length and shall be served in conformity with 
subpart H of this part. [Rule 262.]

[58 FR 27211, May 7, 1993]



              Subpart Q_Refund or Waiver of Freight Charges

    Source: 64 FR 7811, Feb. 17, 1999, unless otherwise noted.



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

[[Page 73]]

must also make a similar service and certification with respect to the 
common carrier.
    (5) Applications must be accompanied by remittance of a $77 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 either forward an 
application to the Office of Consumer Affairs and Dispute Resolution 
Services, for assignment to a Special Dockets Officer, or assign an 
application to 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.]

[64 FR 7811, Feb. 17, 1999, as amended at 65 FR 81759, Dec. 27, 2000; 67 
FR 39859, June 11, 2002; 70 FR 7669, Feb. 15, 2005; 70 FR 10329, Mar. 3, 
2005; 70 FR 44867, Aug. 4, 2005]



    Sec. Exhibit No. 1 to Subpart Q [Sec. 502.271(d)] of Part 502--
  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 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

[[Page 74]]

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.



                Subpart R_Nonadjudicatory Investigations



Sec. 502.281  Investigational policy.

    The Commission has extensive regulatory duties under the various 
acts it is charged with administering. The conduct of investigations is 
essential to the proper exercise of the Commission's regulatory duties. 
It is the purpose of this subpart to establish procedures for the 
conduct of such investigations which will insure protection of the 
public interest in the proper and effective administration of the law. 
The Commission encourages voluntary cooperation in its investigations 
where such can be effected without delay or without prejudice to the 
public interest. The Commission may, in any matter under investigation, 
invoke any or all of the compulsory processes authorized by law. [Rule 
281.]



Sec. 502.282  Initiation of investigations.

    Commission inquiries and nonadjudicatory investigations are 
originated by the Commission upon its own motion when in its discretion 
the Commission determines that information is required for the purposes 
of rulemaking or is necessary or helpful in the determination of its 
policies or the carrying out of its duties, including whether to 
institute formal proceedings directed toward determining whether any of 
the laws which the Commission administers have been violated. [Rule 
282.]



Sec. 502.283  Order of investigation.

    When the Commission has determined that an investigation is 
necessary, an Order of Investigation shall be issued. [Rule 283.]



Sec. 502.284  By whom conducted.

    Investigations are conducted by Commission representatives 
designated and duly authorized for the purpose. (See Sec. 502.25.) Such 
representatives are authorized to exercise the duties of their office in 
accordance with the laws of the United States and the regulations of the 
Commission, including the resort to all compulsory processes authorized 
by law, and the administration of oaths and affirmances in any matters 
under investigation by the Commission. [Rule 284.]



Sec. 502.285  Investigational hearings.

    (a) Investigational hearings, as distinguished from hearings in 
adjudicatory proceedings, may be conducted in the course of any 
investigation undertaken by the Commission, including inquiries 
initiated for the purpose of determining whether or not a person is 
complying with an order of the Commission.
    (b) Investigational hearings may be held before the Commission, one 
or more of its members, or a duly designated representative, for the 
purpose of hearing the testimony of witnesses

[[Page 75]]

and receiving documents and other data relating to any subject under 
investigation. Such hearings shall be stenographically reported and a 
transcript thereof shall be made a part of the record of investigation. 
[Rule 285.]



Sec. 502.286  Compulsory process.

    The Commission, or its designated representative may issue orders or 
subpoenas directing the person named therein to appear before a 
designated representative at a designated time and place to testify or 
to produce documentary evidence relating to any matter under 
investigation, or both. Such orders and subpoenas shall be served in the 
manner provided in Sec. 502.134. [Rule 286.]

[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011]



Sec. 502.287  Depositions.

    The Commission, or its duly authorized representative, may order 
testimony to be taken by deposition in any investigation at any stage of 
such investigation. Such depositions may be taken before any person 
designated by the Commission having the power to administer oaths. Such 
testimony shall be reduced to writing by the person taking the 
deposition or under his or her direction, and shall then be subscribed 
by the deponent. Any person may be compelled to appear and be deposed 
and to produce evidence in the same manner as witnesses may be compelled 
to appear and testify and produce documentary evidence as provided in 
Sec. 502.131. [Rule 287.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.288  Reports.

    The Commission may issue an order requiring a person to file a 
report or answers in writing to specific questions relating to any 
matter under investigation. [Rule 288.]



Sec. 502.289  Noncompliance with investigational process.

    In case of failure to comply with Commission investigational 
processes, appropriate action may be initiated by the Commission, 
including actions for enforcement by the Commission or the Attorney 
General and forfeiture of penalties or criminal actions by the Attorney 
General. [Rule 289.]



Sec. 502.290  Rights of witness.

    Any person required to testify or to submit documentary evidence 
shall be entitled to retain or, on payment of lawfully prescribed cost, 
procure a copy of any document produced by such person and of his or her 
own testimony as stenographically reported or, in the depositions, as 
reduced to writing by or under the direction of the person taking the 
deposition. Any party compelled to testify or to produce documentary 
evidence may be accompanied and advised by counsel, but counsel may not, 
as a matter or right, otherwise participate in the investigation. [Rule 
290.]



Sec. 502.291  Nonpublic proceedings.

    Unless otherwise ordered by the Commission, all investigatory 
proceedings shall be nonpublic. [Rule 291.]



      Subpart S_Informal Procedure for Adjudication of Small Claims



Sec. 502.301  Statement of policy.

    (a) Section 11(a) of the Shipping Act of 1984 (46 U.S.C. 41301(a)) 
permits any person to file a complaint with the Commission claiming a 
violation occurring in connection with the foreign commerce of the 
United States and to seek reparation for any injury caused by that 
violation.
    (b) With the consent of both parties, claims filed under this 
subpart in the amount of $50,000 or less will be decided by a Settlement 
Officer appointed by the Federal Maritime Commission Alternative Dispute 
Resolution Specialist, without the necessity of formal proceedings under 
the rules of this part. Authority to issue decisions under this subpart 
is delegated to the appointed Settlement Officer.
    (c) Determination of claims under this subpart shall be 
administratively final and conclusive. [Rule 301.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7812, Feb. 17, 1999; 66 
FR 43513, Aug. 20, 2001; 74 FR 50716, Oct. 1, 2009]

[[Page 76]]



Sec. 502.302  Limitations of actions.

    (a) Claims alleging violations of the Shipping Act of 1984 must be 
filed within three years from the time the cause of action accrues.
    (b) A claim is deemed filed on the date it is received by the 
Commission. [Rule 302.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7812, Feb. 17, 1999]



Sec. 502.303  [Reserved]



Sec. 502.304  Procedure and filing fee.

    (a) A sworn claim under this subpart shall be filed in the form 
prescribed in Exhibit No. 1 to this subpart. Three (3) copies of this 
claim must be filed, together with the same number of copies of such 
supporting documents as may be deemed necessary to establish the claim. 
Copies of tariff pages need not be filed; reference to such tariffs or 
to pertinent parts thereof will be sufficient. Supporting documents may 
consist of affidavits, correspondence, bills of lading, paid freight 
bills, export declarations, dock or wharf receipts, or of such other 
documents as, in the judgment of the claimant, tend to establish the 
claim. The Settlement Officer may, if deemed necessary, request 
additional documents or information from claimants. Claimant may attach 
a memorandum, brief or other document containing discussion, argument, 
or legal authority in support of its claim. If a claim filed under this 
subpart involves any shipment which has been the subject of a previous 
claim filed with the Commission, formally or informally, full reference 
to such previous claim must be given.
    (b) Claims under this subpart shall be addressed to the Office of 
the Secretary, Federal Maritime Commission, Washington, DC 20573. Such 
claims shall be accompanied by remittance of a $67 filing fee.
    (c) Each claim under this subpart will be acknowledged with a 
reference to the Informal Docket Number assigned. The number shall 
consist of a numeral(s) followed by capital ``I'' in parentheses. All 
further correspondence pertaining to such claims must refer to the 
assigned Informal Docket Number. If the documents filed fail to 
establish a claim for which relief may be granted, the parties affected 
will be so notified in writing. The claimant may thereafter, but only if 
the period of limitation has not run, resubmit its claim with such 
additional proof as may be necessary to establish the claim. In the 
event a complaint has been amended because it failed to state a claim 
upon which relief may be granted, it will be considered as a new 
complaint.
    (d) A copy of each claim filed under this subpart, with attachments, 
shall be served by the Settlement Officer on the respondent involved.
    (e) Within twenty-five (25) days from the date of service of the 
claim, the respondent shall serve upon the claimant and file with the 
Commission its response to the claim, together with an indication, in 
the form prescribed in Exhibit No. 2 to this subpart, as to whether the 
informal procedure provided in this subpart is consented to. Failure of 
the respondent to indicate refusal or consent in its response will be 
conclusively deemed to indicate such consent. The response shall consist 
of documents, arguments, legal authorities, or precedents, or any other 
matters considered by the respondent to be a defense to the claim. The 
Settlement Officer may request the respondent to furnish such further 
documents or information as deemed necessary, or he or she may require 
the claimant to reply to the defenses raised by the respondent.
    (f) If the respondent refuses to consent to the claim being 
informally adjudicated pursuant to this subpart, the claim will be 
considered a complaint under Sec. 502.311 and will be adjudicated under 
subpart T of this part.
    (g) Both parties shall promptly be served with the Settlement 
Officer's decision which shall state the basis upon which the decision 
was made. Where appropriate, the Settlement Officer may require that the 
respondent publish notice in its tariff of the substance of the 
decision. This decision shall be final, unless, within thirty (30) days 
from the date of service of the decision, the Commission exercises its 
discretionary right to review the decision. The Commission shall not, on 
its own initiative, review any decision or order of dismissal unless 
such review is

[[Page 77]]

requested by an individual Commissioner. Any such request must be 
transmitted to the Secretary within thirty (30) days after date of 
service of the decision or order. Such request shall be sufficient to 
bring the matter before the Commission for review.
    (h) Within thirty (30) days after service of a final decision by a 
Settlement Officer, any party may file a petition for reconsideration. 
Such petition shall be directed to the Settlement Officer and shall act 
as a stay of the review period prescribed in paragraph (g) of this 
section. A petition will be subject to summary rejection unless it: (1) 
Specifies that there has been a change in material fact or in applicable 
law, which change has occurred after issuance of the decision or order; 
(2) identifies a substantive error in material fact contained in the 
decision or order; (3) addresses a material matter in the Settlement 
Officer's decision upon which the petitioner has not previously had the 
opportunity to comment. Petitions which merely elaborate upon or repeat 
arguments made prior to the decision or order will not be received. Upon 
issuance of a decision or order on reconsideration by the Settlement 
Officer, the review period prescribed in paragraph (g) of this section 
will recommence. [Rule 304.]

[49 FR 44369, Nov. 6, 1984, as amended at 59 FR 59170, Nov. 16, 1994; 67 
FR 39859, June 11, 2002; 70 FR 10329, Mar. 3, 2005]



Sec. 502.305  Applicability of other rules of this part.

    (a) Except otherwise specifically provided in this subpart or in 
paragraph (b) of this section, the sections in subparts A through Q, 
inclusive, of this part do not apply to situations covered by this 
subpart.
    (b) The following sections in subparts A through Q of this part 
apply to situations covered by this subpart: Sec. Sec. 502.2(a) 
(Requirement for filing); 502.2(f)(1) (Email transmission of filings); 
502.2(i) (Continuing obligation to provide contact information); 502.7 
(Documents in foreign languages); 502.21-502.23 (Appearance, Authority 
for representation, Notice of appearance; substitution and withdrawal of 
representative); 502.43 (Substitution of parties); 502.101 
(Computation); 502.117 (Certificate of service); 502.253 (Interest in 
reparation proceedings); and 502.254 (Attorney's fees in reparation 
proceedings). [Rule 305.]

[76 FR 10262, Feb. 24, 2011]



 Sec. Exhibit No. 1 to Subpart S [Sec. 502.304(a)] of Part 502--Small 
     Claim Form for Informal Adjudication and Information Checklist

              Federal Maritime Commission, Washington, DC.

    Informal Docket No.------

________________________________________________________________________

(Claimant)
    vs.
________________________________________________________________________

(Respondent)

    I. The claimant is [state in this paragraph whether claimant is an 
association, corporation, firm or partnership, and if a firm or 
partnership, the names of the individuals composing the same. State the 
nature and principal place of business.]
    II. The respondent named above is [state in this paragraph whether 
respondent is an association, corporation, firm or partnership, and if a 
firm or partnership, the names of the individuals composing the same. 
State the nature and principal place of business.]
    III. That [state in this and subsequent paragraphs to be lettered A, 
B, etc., the matters that gave rise to the claim. Name specifically each 
rate, charge, classification, regulation or practice which is 
challenged. Refer to tariffs, tariff items or rules, or agreement 
numbers, if known. If claim is based on the fact that a firm is a common 
carrier, state where it is engaged in transportation by water and which 
statute(s) it is subject to under the jurisdiction of the Federal 
Maritime Commission].
    IV. If claim is for overcharges, state commodity, weight and cube, 
origin, destination, bill of lading description, bill of lading number 
and date, rate and/or charges assessed, date of delivery, date of 
payment, by whom paid, rate or charge claimed to be correct and amount 
claimed as overcharges. [Specify tariff item for rate or charge claimed 
to be proper].
    V. State section of statute claimed to have been violated. (Not 
required if claim is for overcharges).
    VI. State how claimant was injured and amount of damages requested.
    VII. The undersigned authorizes the Settlement Officer to determine 
the above-stated claim pursuant to the informal procedure outlined in 
subpart S (46 CFR 502.301-502.305) of the Commission's informal 
procedure for adjudication of small claims subject to discretionary 
Commission review.

[[Page 78]]

    Attach memorandum or brief in support of claim. Also attach bill of 
lading, copies of correspondence or other documents in support of claim.
________________________________________________________________________

(Date)
________________________________________________________________________

(Claimant's signature)
________________________________________________________________________

(Claimant's address)
________________________________________________________________________

(Signature of agent or attorney)
________________________________________________________________________

(Agent's or attorney's address)

                              Verification

    State of ------, County of ------, ss: ------, being first duly 
sworn on oath deposes and says that he or she is
________________________________________________________________________

The claimant [or if a firm, association, or corporation, state the 
capacity of the affiant] and is the person who signed the foregoing 
claim, that he or she has read the foregoing and that the facts set 
forth without qualification are true and that the facts stated therein 
upon information received from others, affiant believes to be true.

________________________________________________________________________

Subscribed and sworn to before me, a notary public in and for the State 
of ------, County of ------, this ---- day of ------ 19--. (Seal)

________________________________________________________________________

                             (Notary Public)

 My Commission expires,_________________________________________________

           Information To Assist in Filing Informal Complaints

    Informal Docket procedures are limited to claims of $50,000 or less 
and are appropriate only in instances when an evidentiary hearing on 
disputed facts is not necessary. Where, however, a respondent elects not 
to consent to the informal procedures [See Exhibit No. 2 to subpart S], 
the claim will be adjudicated by an administrative law judge under 
subpart T of Part 502.
    Under the Shipping Act of 1984 [for foreign commerce], the claim 
must be filed within three (3) years from the time the cause of action 
accrues and may be brought against any person alleged to have violated 
the 1984 Act to the injury of claimant.
    A violation of a specific section of a particular shipping statute 
must be alleged.
    The format of Exhibit No. 1 must be followed and a verification must 
be included. (See Sec. Sec. 502.21-502.32, 502.112, and 502.304.) An 
original and two (2) copies of the claim and all attachments, including 
a brief in support of the claim, must be submitted.

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 55 
FR 28400, July 11, 1990; 64 FR 7812, Feb. 17, 1999; 76 FR 10262, Feb. 
24, 2011]



    Sec. Exhibit No. 2 to Subpart S [Sec. 502.304(e)] of Part 502--
           Respondent's Consent Form for Informal Adjudication

              Federal Maritime Commission, Washington, DC.

                       Informal Docket No. ------

                         Respondent's Affidavit

    I authorize the Settlement Officer to determine the above-numbered 
claim in accordance with subpart S (46 CFR 502) of the Commission's 
informal procedure for adjudication of small claims subject to 
discretionary Commission Review.

 (Date)_________________________________________________________________

 (Signed)_______________________________________________________________

 (Capacity)_____________________________________________________________

                              Verification

    State of ----------------------, County of --------------------, ss: 
------------, being first duly sworn on oath deposes and says that he or 
she is ------------------, (Title or Position) and is the person who 
signed the foregoing and agrees without qualification to its truth.

________________________________________________________________________
    Subscribed and sworn to before me, a notary public in and for the 
State of ----------------, County of ----------------, this ------------ 
day of --------------------, 19----.
(Seal)

________________________________________________________________________

(Notary Public)

 My Commission expires._________________________________________________

               Certificate of Service [See Sec. 502.320]



       Subpart T_Formal Procedure for Adjudication of Small Claims



Sec. 502.311  Applicability.

    In the event the respondent elects not to consent to determination 
of the claim under subpart S of this part, it shall be adjudicated by 
the administrative law judges of the Commission under procedures set 
forth in this subpart, if timely filed under Sec. 502.302. The 
previously assigned Docket Number shall be used except that it shall now

[[Page 79]]

be followed by capital ``F'' instead of ``I'' in parentheses (See Sec. 
502.304(c)). The complaint shall consist of the documents submitted by 
the claimant under subpart S of this part. [Rule 311.]



Sec. 502.312  Answer to complaint.

    The respondent shall file with the Commission an answer within 
twenty-five (25) days of service of the complaint and shall serve a copy 
of said answer upon complainant. The answer shall admit or deny each 
matter set forth in the complaint. Matters not specifically denied will 
be deemed admitted. Where matters are urged in defense, the answer shall 
be accompanied by appropriate affidavits, other documents, and 
memoranda. [Rule 312.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.313  Reply of complainant.

    Complainant may, within twenty (20) days of service of the answer 
filed by respondent, file with the Commission and serve upon the 
respondent a reply memorandum accompanied by appropriate affidavits and 
supporting documents. [Rule 313.]



Sec. 502.314  Additional information.

    The administrative law judge may require the submission of 
additional affidavits, documents, or memoranda from complainant or 
respondent. [Rule 314.]



Sec. 502.315  Request for oral hearing.

    In the usual course of disposition of complaints filed under this 
subpart, no oral hearing will be held, but, the administrative law 
judge, in his or her discretion, may order such hearing. A request for 
oral hearing may be incorporated in the answer or in complainant's reply 
to the answer. Requests for oral hearing will not be entertained unless 
they set forth in detail the reasons why the filing of affidavits or 
other documents will not permit the fair and expeditious disposition of 
the claim, and the precise nature of the facts sought to be proved at 
such oral hearing. The administrative law judge shall rule upon a 
request for oral hearing within ten (10) days of its receipt. In the 
event an oral hearing is ordered, it will be held in accordance with the 
rules applicable to other formal proceedings, as set forth in subparts A 
through Q of this part. [Rule 315.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.316  Intervention.

    Intervention will ordinarily not be permitted. [Rule 316.]



Sec. 502.317  Oral argument.

    No oral argument will be held unless otherwise directed by the 
administrative law judge. [Rule 317.]



Sec. 502.318  Decision.

    (a) The decision of the administrative law judge shall be final, 
unless, within twenty-two (22) days from the date of service of the 
decision, either party requests review of the decision by the 
Commission, asserting as grounds therefor that a material finding of 
fact or a necessary legal conclusion is erroneous or that prejudicial 
error has occurred, or unless, within thirty (30) days from the date of 
service of the decision, the Commission exercises its discretionary 
right to review the decision. The Commission shall not, on its own 
initiative, review any decision or order of dismissal unless such review 
is requested by an individual Commissioner. Any such request must be 
transmitted to the Secretary within thirty (30) days after date of 
service of the decision or order. Such request shall be sufficient to 
bring the matter before the Commission for review. [Rule 318.]
    (b) If the complainant is awarded reparations pursuant to section 11 
of the Shipping Act of 1984 (46 U.S.C. 41301-41302, 41305-41307(a)), 
attorney's fees shall also be awarded in accordance with Sec. 502.254 
of this part. [Rule 318.]

[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 6332, Mar. 3, 1987; 74 
FR 50717, Oct. 1, 2009]



Sec. 502.319  Date of service and computation of time.

    The date of service of documents served by the Commission shall be 
that which is shown in the service stamp thereon. The date of service of 
documents served by parties shall be the date when the matter served is 
mailed or delivered in person, as the case may

[[Page 80]]

be. When the period of time prescribed or allowed is ten (10) days or 
less, intermediate Saturdays, Sundays, and holidays shall be excluded 
from the computation. [Rule 319.]



Sec. 502.320  Service.

    All claims, resubmitted claims, petitions to intervene and rulings 
thereon, notices of oral hearings, notices of oral arguments (if 
necessary), decisions of the administrative law judge, notices of 
review, and Commission decisions shall be served by the administrative 
law judge or the Commission. All other pleadings, documents and filings 
shall, when tendered to the Commission, evidence service upon all 
parties to the proceeding. Such certificate shall be in substantially 
the following form:

                         Certificate of Service

    I hereby certify that I have this day served the foregoing document 
upon all parties of record in this proceeding by [mailing, delivering to 
courier, or delivering in person], a copy to each such person in 
sufficient time to reach such person on the date the document is due to 
be filed with the Commission.

    Dated at -------------------- this ---------------- day of --------
----------, 19----.

 (Signature)____________________________________________________________

 (For)__________________________________________________________________

[Rule 320.]



Sec. 502.321  Applicability of other rules of this part.

    (a) Except otherwise specifically provided in this subpart or in 
paragraph (b) of this section, the sections in subparts A through Q, 
inclusive, of this part do not apply to situations covered by this 
subpart.
    (b) The following sections in subparts A through Q apply to 
situations covered by this subpart: Sec. Sec. 502.2(a) (Requirement for 
filing); 502.2(f)(1) (E-mail transmission of filings); 502.2(i) 
(Continuing obligation to provide contact information); 502.7 (Documents 
in foreign languages); 502.21-502.23 (Appearance, Authority for 
representation, Notice of appearance; substitution and withdrawal of 
representative); 502.43 (Substitution of parties); 502.253 (Interest in 
reparation proceedings); and 502.254 (Attorney's fees in reparation 
proceedings). [Rule 321.]

[76 FR 10262, Feb. 24, 2011]



                Subpart U_Alternative Dispute Resolution

    Source: 66 FR 43513, Aug. 20, 2001, unless otherwise noted.



Sec. 502.401  Policy.

    It is the policy of the Federal Maritime Commission to use 
alternative means of dispute resolution to the fullest extent compatible 
with the law and the agency's mission and resources. The Commission will 
consider using ADR in all areas including workplace issues, formal and 
informal adjudication, issuance of regulations, enforcement and 
compliance, issuing and revoking licenses and permits, contract award 
and administration, litigation brought by or against the Commission, and 
other interactions with the public and the regulated community. The 
Commission will provide learning and development opportunities for its 
employees to develop their ability to use conflict resolution skills, 
instill knowledge of the theory and practice of ADR, and to facilitate 
appropriate use of ADR. To this end, all parties to matters under this 
part are required to consider use of a wide range of alternative means 
to resolve disputes at an early stage. Parties are encouraged to pursue 
use of alternative means through the Commission's Office of Consumer 
Affairs and Dispute Resolution Services in lieu of or prior to 
initiating a Commission proceeding. All employees and persons who 
interact with the Commission are encouraged to identify opportunities 
for collaborative, consensual approaches to dispute resolution or 
rulemaking.

[66 FR 43513, Aug. 20, 2001, as amended at 70 FR 7669, Feb. 15, 2005; 70 
FR 44867, Aug. 4, 2005]



Sec. 502.402  Definitions.

    (a) Alternative means of dispute resolution means any procedure that 
is used

[[Page 81]]

to resolve issues in controversy, including, but not limited to, 
conciliation, facilitation, mediation, factfinding, minitrials, 
arbitration, and use of ombuds, or any combination thereof;
    (b) Award means any decision by an arbitrator resolving the issues 
in controversy;
    (c) Dispute resolution communication means any oral or written 
communication prepared for the purposes of a dispute resolution 
proceeding, including any memoranda, notes or work product of the 
neutral, parties or nonparty participant; except that a written 
agreement to enter into a dispute resolution proceeding, or final 
written agreement or arbitral award reached as a result of a dispute 
resolution proceeding, is not a dispute resolution communication;
    (d) Dispute resolution proceeding means any process in which an 
alternative means of dispute resolution is used to resolve an issue in 
controversy in which a neutral is appointed and specified parties 
participate;
    (e) In confidence means, with respect to information, that the 
information is provided--
    (1) With the expressed intent of the source that it not be 
disclosed; or
    (2) Under circumstances that would create the reasonable expectation 
on behalf of the source that the information will not be disclosed;
    (f) Issue in controversy means an issue which is material to a 
decision concerning a program of the Commission, and with which there is 
disagreement--
    (1) Between the Commission and persons who would be substantially 
affected by the decision; or
    (2) Between persons who would be substantially affected by the 
decision;
    (g) Neutral means an individual who, with respect to an issue in 
controversy, functions specifically to aid the parties in resolving the 
controversy; and
    (h) Person has the same meaning as in 5 U.S.C. 551(2).



Sec. 502.403  General authority.

    (a) The Commission intends to consider using a dispute resolution 
proceeding for the resolution of an issue in controversy, if the parties 
agree to a dispute resolution proceeding.
    (b) The Commission will consider not using a dispute resolution 
proceeding if--
    (1) A definitive or authoritative resolution of the matter is 
required for precedential value, and such a proceeding is not likely to 
be accepted generally as an authoritative precedent;
    (2) The matter involves or may bear upon significant questions of 
Government policy that require additional procedures before a final 
resolution may be made, and such a proceeding would not likely serve to 
develop a recommended policy for the agency;
    (3) Maintaining established policies is of special importance, so 
that variations among individual decisions are not increased and such a 
proceeding would not likely reach consistent results among individual 
decisions;
    (4) The matter significantly affects persons or organizations who 
are not parties to the proceeding;
    (5) A full public record of the proceeding is important, and a 
dispute resolution proceeding cannot provide such a record; and
    (6) The Commission must maintain continuing jurisdiction over the 
matter with authority to alter the disposition of the matter in the 
light of changed circumstances, and a dispute resolution proceeding 
would interfere with the Commission's fulfilling that requirement.
    (c) Alternative means of dispute resolution authorized under this 
subpart are voluntary procedures which supplement rather than limit 
other available agency dispute resolution techniques.



Sec. 502.404  Neutrals.

    (a) A neutral may be a permanent or temporary officer or employee of 
the Federal Government or any other individual who is acceptable to the 
parties to a dispute resolution proceeding. A neutral shall have no 
official, financial, or personal conflict of interest with respect to 
the issues in controversy, unless such interest is fully disclosed in 
writing to all parties and all parties agree that the neutral may serve.
    (b) A neutral who serves as a conciliator, facilitator, or mediator 
serves at the will of the parties.

[[Page 82]]

    (c) With consent of the parties, the Federal Maritime Commission 
Dispute Resolution Specialist will seek to provide a neutral in dispute 
resolution proceedings through Commission staff, arrangements with other 
agencies, or on a contractual basis.
    (d) Fees. Should the parties choose a neutral other than an official 
or employee of the Commission, fees and expenses shall be borne by the 
parties as the parties shall agree.



Sec. 502.405  Confidentiality.

    (a) Except as provided in paragraphs (d) and (e) of this section, a 
neutral in a dispute resolution proceeding shall not voluntarily 
disclose or through discovery or compulsory process be required to 
disclose any dispute resolution communication or any communication 
provided in confidence to the neutral, unless--
    (1) All parties to the dispute resolution proceeding and the neutral 
consent in writing, and, if the dispute resolution communication was 
provided by a nonparty participant, that participant also consents in 
writing;
    (2) The dispute resolution communication has already been made 
public;
    (3) The dispute resolution communication is required by statute to 
be made public, but a neutral should make such communication public only 
if no other person is reasonably available to disclose the 
communication; or
    (4) A court determines that such testimony or disclosure is 
necessary to--
    (i) Prevent a manifest injustice;
    (ii) Help establish a violation of law; or
    (iii) Prevent harm to the public health or safety, of sufficient 
magnitude in the particular case to outweigh the integrity of dispute 
resolution proceedings in general by reducing the confidence of parties 
in future cases that their communications will remain confidential.
    (b) A party to a dispute resolution proceeding shall not voluntarily 
disclose or through discovery or compulsory process be required to 
disclose any dispute resolution communication, unless--
    (1) The communication was prepared by the party seeking disclosure;
    (2) All parties to the dispute resolution proceeding consent in 
writing;
    (3) The dispute resolution communication has already been made 
public;
    (4) The dispute resolution communication is required by statute to 
be made public;
    (5) A court determines that such testimony or disclosure is 
necessary to--
    (i) Prevent a manifest injustice;
    (ii) Help establish a violation of law; or
    (iii) Prevent harm to the public health and safety, of sufficient 
magnitude in the particular case to outweigh the integrity of dispute 
resolution proceedings in general by reducing the confidence of parties 
in future cases that their communications will remain confidential;
    (6) The dispute resolution communication is relevant to determining 
the existence or meaning of an agreement or award that resulted from the 
dispute resolution proceeding or to the enforcement of such an agreement 
or award; or
    (7) Except for dispute resolution communications generated by the 
neutral, the dispute resolution communication was provided to or was 
available to all parties to the dispute resolution proceeding.
    (c) Any dispute resolution communication that is disclosed in 
violation of paragraph (a) or (b) of this section shall not be 
admissible in any proceeding relating to the issues in controversy with 
respect to which the communication was made.
    (d) (1) The parties may agree between or amongst themselves to 
alternative confidential procedures for disclosures by a neutral, and 
shall inform the neutral before commencement of the dispute resolution 
proceeding of any modifications to the provisions of paragraph (a) of 
this section that will govern the confidentiality of the dispute 
resolution proceeding, in accordance with the guidance on 
confidentiality in federal proceedings published by the Interagency ADR 
Working Group and adopted by the ADR Council (http://www.financenet.gov/
financenet/fed/iadrwg/confid.pdf). If the parties do not so inform the 
neutral, paragraph (a) of this section shall apply.

[[Page 83]]

    (2) To qualify for the exemption under paragraph (j) of this 
section, an alternative confidential procedure under this subsection may 
not provide for less disclosure than the confidential procedures 
otherwise provided under this section.
    (e) If a demand for disclosure, by way of discovery request or other 
legal process, is made upon a neutral regarding a dispute resolution 
communication, the neutral shall make reasonable efforts to notify the 
parties and any affected nonparty participants of the demand. Any party 
or affected nonparty participant who receives such notice and within 15 
calendar days does not offer to defend a refusal of the neutral to 
disclose the requested information shall have waived any objection to 
such disclosure.
    (f) Nothing in this section shall prevent the discovery or 
admissibility of any evidence that is otherwise discoverable, merely 
because the evidence was presented in the course of a dispute resolution 
proceeding.
    (g) Paragraphs (a) and (b) of this section shall have no effect on 
the information and data that are necessary to document an agreement 
reached or order issued pursuant to a dispute resolution proceeding.
    (h) Paragraphs (a) and (b) of this section shall not prevent the 
gathering of information for research or educational purposes, in 
cooperation with other agencies, governmental entities, or dispute 
resolution programs, so long as the parties and the specific issues in 
controversy are not identifiable.
    (i) Paragraphs (a) and (b) of this section shall not prevent use of 
a dispute resolution communication to resolve a dispute between the 
neutral in a dispute resolution proceeding and a party to or participant 
in such proceeding, so long as such dispute resolution communication is 
disclosed only to the extent necessary to resolve such dispute.
    (j) A dispute resolution communication which is between a neutral 
and a party and which may not be disclosed under this section shall also 
be exempt from disclosure under 5 U.S.C. 552(b)(3).



Sec. 502.406  Arbitration.

    (a)(1) Arbitration may be used as an alternative means of dispute 
resolution whenever all parties consent, except that arbitration may not 
be used when the Commission or one of its components is a party. Consent 
may be obtained either before or after an issue in controversy has 
arisen. A party may agree to--
    (i) Submit only certain issues in controversy to arbitration; or
    (ii) Arbitration on the condition that the award must be within a 
range of possible outcomes.
    (2) The arbitration agreement that sets forth the subject matter 
submitted to the arbitrator shall be in writing. Each such arbitration 
agreement shall specify a maximum award that may be issued by the 
arbitrator and may specify other conditions limiting the range of 
possible outcomes.
    (b) With the concurrence of the Federal Maritime Commission Dispute 
Resolution Specialist, binding arbitration may be used to resolve any 
and all disputes that could be the subject of a Commission 
administrative proceeding before an Administrative Law Judge. The 
Federal Maritime Commission Dispute Resolution Specialist may withhold 
such concurrence after considering the factors specified in Sec. 
502.403, should the Commission's General Counsel object to use of 
binding arbitration.
    (c)(1) The Federal Maritime Commission Dispute Resolution Specialist 
will appoint an arbitrator of the parties' choosing for an arbitration 
proceeding.
    (2) A Commission officer or employee selected as an arbitrator by 
the parties and appointed by the Federal Maritime Commission Dispute 
Resolution Specialist shall have authority to settle an issue in 
controversy through binding arbitration pursuant to the arbitration 
agreement; provided, however, that decisions by arbitrators shall not 
have precedential value with respect to decisions by Administrative Law 
Judges or the Commission. Administrative Law Judges may be appointed as 
arbitrators with the concurrence of the Chief Administrative Law Judge.
    (d) The arbitrator shall be a neutral who meets the criteria of 5 
U.S.C. 573.



Sec. 502.407  Authority of the arbitrator.

    An arbitrator to whom a dispute is referred may--

[[Page 84]]

    (a) Regulate the course of and conduct arbitral hearings;
    (b) Administer oaths and affirmations;
    (c) Compel the attendance of witnesses and production of evidence at 
the hearing under the provisions of 9 U.S.C. 7 only to the extent the 
Commission is otherwise authorized by law to do so; and
    (d) Make awards.



Sec. 502.408  Conduct of arbitration proceedings.

    (a) The arbitrator shall set a time and place for the hearing on the 
dispute and shall notify the parties not less than five days before the 
hearing.
    (b) Any party wishing a record of the hearing shall--
    (1) Be responsible for the preparation of such record;
    (2) Notify the other parties and the arbitrator of the preparation 
of such record;
    (3) Furnish copies to all identified parties and the arbitrator; and
    (4) Pay all costs for such record, unless the parties agree 
otherwise or the arbitrator determines that the costs should be 
apportioned.
    (c)(1) The parties to the arbitration are entitled to be heard, to 
present evidence material to the controversy, and to cross-examine 
witnesses appearing at the hearing.
    (2) The arbitrator may, with the consent of the parties, conduct all 
or part of the hearing by telephone, television, computer, or other 
electronic means, if each party has an opportunity to participate.
    (3) The hearing shall be conducted expeditiously and in an informal 
manner.
    (4) The arbitrator may receive any oral or documentary evidence, 
except that irrelevant, immaterial, unduly repetitious, or privileged 
evidence may be excluded by the arbitrator.
    (5) The arbitrator shall interpret and apply relevant statutory and 
regulatory requirements, legal precedents, and policy directives.
    (d) The provisions of Sec. 502.11 regarding ex parte communications 
apply to all arbitration proceedings. No interested person shall make or 
knowingly cause to be made to the arbitrator an unauthorized ex parte 
communication relevant to the merits of the proceeding, unless the 
parties agree otherwise. If a communication is made in violation of this 
subsection, the arbitrator shall ensure that a memorandum of the 
communication is prepared and made a part of the record, and that an 
opportunity for rebuttal is allowed. Upon receipt of a communication 
made in violation of this subsection, the arbitrator may, to the extent 
consistent with the interests of justice and the policies underlying 
this subchapter, require the offending party to show cause why the claim 
of such party should not be resolved against such party as a result of 
the improper conduct.
    (e) The arbitrator shall make an award within 30 days after the 
close of the hearing, or the date of the filing of any briefs authorized 
by the arbitrator, whichever date is later, unless the parties agree to 
some other time limit.



Sec. 502.409  Arbitration awards.

    (a)(1) The award in an arbitration proceeding under this subchapter 
shall include a brief, informal discussion of the factual and legal 
basis for the award, but formal findings of fact or conclusions of law 
shall not be required.
    (2) Exceptions to or an appeal of an arbitrator's decision may not 
be filed with the Commission.
    (b) An award entered in an arbitration proceeding may not serve as 
an estoppel in any other proceeding for any issue that was resolved in 
the proceeding. Such an award also may not be used as precedent or 
otherwise be considered in any factually unrelated proceeding.



Sec. 502.410  Representation of parties.

    (a) The provisions of Sec. 502.21 apply to the representation of 
parties in dispute resolution proceedings, as do the provisions of Sec. 
502.27 regarding the representation of parties by nonattorneys.
    (b) A neutral in a dispute resolution proceeding may require 
participants to demonstrate authority to enter into a binding agreement 
reached by means of a dispute resolution proceeding.

[[Page 85]]



Sec. 502.411  Mediation and other alternative means of dispute resolution.

    (a) Parties are encouraged to utilize mediation or other forms of 
alternative dispute resolution in all formal proceedings. The Commission 
also encourages those with disputes to pursue mediation in lieu of, or 
prior to, the initiation of a Commission proceeding.
    (b) Any party may request, at any time, that a mediator or other 
neutral be appointed to assist the parties in reaching a settlement. If 
such a request is made in a proceeding assigned to an Administrative Law 
Judge, the provisions of Sec. 502.91 apply. For all other matters, 
alternative dispute resolution services may be requested directly from 
the Federal Maritime Commission Alternative Dispute Resolution 
Specialist, who may serve as the neutral if the parties agree or who 
will arrange for the appointment of a neutral acceptable to all parties.
    (c) The neutral shall convene and conduct mediation or other 
appropriate dispute resolution proceedings with the parties.
    (d) Ex parte Communications. Except with respect to arbitration, the 
provisions of Sec. 502.11 do not apply to dispute resolution 
proceedings, and mediators are expressly authorized to conduct private 
sessions with parties.



     Subpart V_Implementation of the Equal Access to Justice Act in 
                         Commission Proceedings

    Source: 52 FR 28264, July 29, 1987, unless otherwise noted.



Sec. 502.501  General provisions.

    (a) Purpose. The Equal Access to Justice Act, 5 U.S.C. 504 
(``EAJA''), provides for the award of attorney fees and other expenses 
to eligible individuals and entities who are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
the Federal Maritime Commission (``the Commission''). An eligible party 
may receive an award when it prevails over an agency, unless the 
agency's position was substantially justified or special circumstances 
make an award unjust. The rules in this subpart describe the parties 
eligible for awards and the proceedings that are covered. They also 
explain how to apply for awards, and the procedures and standards that 
the Commission will use to make them.
    (b) When EAJA applies. EAJA applies to any adversary adjudication:
    (1) Pending or commenced before the Commission on or after August 5, 
1985;
    (2) Commenced on or after October 1, 1984, and finally disposed of 
before August 5, 1985, provided that an application for fees and 
expenses, as described in Sec. 502.502 of this subpart, has been filed 
with the Commission within 30 days after August 5, 1985; or
    (3) Pending on or commenced on or after October 1, 1981, in which an 
application for fees and other expenses was timely filed and was 
dismissed for lack of jurisdiction.
    (c) Proceedings covered. (1)(i) EAJA applies to adversary 
adjudications conducted by the Commission under this part. These are 
adjudications under 5 U.S.C. 554 in which the position of this or any 
other agency of the United States, or any component of any agency, is 
presented by an attorney or other representative who enters an 
appearance and participates in the proceeding.
    (ii) Any proceeding in which the Commission may prescribe a lawful 
present or future rate is not covered by the Act.
    (iii) Proceedings to grant or renew licenses are also excluded, but 
proceedings to modify, suspend, or revoke licenses are covered if they 
are otherwise ``adversary adjudications.''
    (2) The Commission's failure to identify a type of proceeding as an 
adversary adjudication shall not preclude the filing of an application 
by a party who believes the proceeding is covered by the EAJA; whether 
the proceeding is covered will then be an issue for resolution in 
proceedings on the application.
    (3) If a proceeding includes both matters covered by EAJA and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.
    (d) Eligibility of applicants. (1) To be eligible for an award of 
attorney fees and other expenses under EAJA, the applicant must be a 
party to the adversary adjudication for which it seeks an

[[Page 86]]

award. The term ``party'' is defined in 5 U.S.C. 551(3). The applicant 
must show that it meets all conditions of eligibility set out in this 
section and Sec. 502.502.
    (2) The types of eligible applicants are:
    (i) An individual with a net worth of not more than $2 million;
    (ii) The sole owner of an unincorporated business who has a net 
worth of not more than $7 million, including both personal and business 
interests, and not more than 500 employees;
    (iii) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (iv) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (v) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of not more than $7 million 
and not more than 500 employees.
    (vi) For purposes of paragraph (e)(3) of this section, a small 
entity as defined in 5 U.S.C. 601.
    (3) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was initiated.
    (4) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (5) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (6) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interests of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interests, will be considered an affiliate for purposes of this 
subpart, unless the adjudicative officer determines that such treatment 
would be unjust and contrary to the purposes of EAJA in light of the 
actual relationship between the affiliated entities. In addition, the 
adjudicative officer may determine that financial relationships of the 
applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (7) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.
    (e) Standards for awards. (1) A prevailing applicant may receive an 
award for fees and expenses incurred in connection with a proceeding or 
in a significant and discrete substantive portion of the proceeding, 
unless the position of the agency over which the applicant has prevailed 
was substantially justified. The position of the agency includes, in 
addition to the position taken by the agency in the adversary 
adjudication, the action or failure to act by the agency upon which the 
adversary adjudication is based. The burden of proof that an award 
should not be made to an eligible prevailing applicant is on agency 
counsel.
    (2) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding or if special circumstances 
make the award sought unjust.
    (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.

[[Page 87]]

    (f) Allowable fees and expenses. (1) Awards will be based on rates 
customarily charged by the persons engaged in the business of acting as 
attorneys, agents and expert witnesses, even if the services were made 
available without charge or at a reduced rate to the applicant.
    (2) No award for the fee of an attorney or agent under this subpart 
may exceed $125 per hour. No award to compensate an expert witness may 
exceed the highest rate at which the Commission pays expert witnesses. 
However, an award may also include the reasonable expenses of the 
attorney, agent, or witness as a separate item, if the attorney, agent 
or witness ordinarily charges clients separately for such expenses.
    (3) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the adjudicative officer shall 
consider the following:
    (i) If the attorney, agent or witness is in private practice, his or 
her customary fees for similar services, or, if an employee of the 
applicant, the fully allocated costs of the services;
    (ii) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (iii) The time actually spent in the representation of the 
applicant;
    (iv) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (v) Such other factors as may bear on the value of the services 
provided.
    (4) The reasonable cost of any study, analysis, engineering report, 
test project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the services does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of applicant's case.
    (g) Awards against other agencies. If an applicant is entitled to an 
award because it prevails over another agency of the United States that 
participates in a proceeding before the Commission and takes a position 
that is not substantially justified, the award or an appropriate portion 
of the award shall be made against that agency. [Rule 501.]

[52 FR 28264, July 29, 1987, as amended at 64 FR 7812, Feb. 17, 1999]



Sec. 502.502  Information required from applicants.

    (a) Contents of petition. (1) An application for an award of fees 
and expenses under EAJA shall be by petition under Sec. 502.69 of this 
part, shall clearly indicate that the application is made under EAJA, 
and shall identify the applicant and the proceeding (including docket 
number) for which an award is sought. The application shall show that 
the applicant has prevailed and identify the position of an agency or 
agencies that the applicant alleges was not substantially justified. 
Unless the applicant is an individual, the application shall also state 
the number of employees of the applicant and describe briefly the type 
and purpose of its organization or business.
    (2) The petition shall also include a statement that the applicant's 
net worth does not exceed $2 million (if an individual) or $7 million 
(for all other applicants, including their affiliates). However, an 
applicant may omit this statement if:
    (i) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (ii) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (3) The petition shall state the amount of fees and expenses for 
which an award is sought.
    (4) The petition may also include any other matters that the 
applicant wishes the Commission to consider in determining whether and 
in what amount an award should be made.
    (5) The petition shall be signed by the applicant or an authorized 
officer or attorney of the applicant. It shall also contain or be 
accompanied by a written

[[Page 88]]

verification under oath or under penalty of perjury that the information 
provided in the application is true and correct.
    (b) Net worth exhibit. (1) Each applicant except a qualified tax-
exempt organization or cooperative association must provide with its 
petition a detailed exhibit showing the net worth of the applicant and 
any affiliates (as defined in Sec. 502.501(d)(6) of this subpart) when 
the proceeding was initiated. The exhibit may be in any form convenient 
to the applicant that provides full disclosure of the applicant's and 
its affiliates' assets and liabilities and is sufficient to determine 
whether the applicant qualifies under the standards in this subpart. The 
adjudicative officer may require an applicant to file additional 
information to determine its eligibility for an award.
    (2) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the adjudicative officer in a 
sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the 
information would adversely affect the applicant, and why disclosure is 
not required in the public interest. The material in question shall be 
served on counsel representing the agency against which the applicant 
seeks an award, but need not be served on any other party to the 
proceeding. If the adjudicative officer finds that the information 
should not be withheld from disclosure, it shall be placed in the public 
record of the proceeding. Otherwise, any request to inspect or copy the 
exhibit shall be disposed of in accordance with the Commission's 
established procedures under the Freedom of Information Act under 
Sec. Sec. 503.31-503.43 of this chapter.
    (c) Documentation of fees and expenses. The petition shall be 
accompanied by full documentation of the fees and expenses, including 
the cost of any study, analysis, engineering report, test, project or 
similar matter, for which an award is sought. A separate itemized 
statement shall be submitted for each professional firm or individual 
whose services are covered by the application, showing the hours spent 
in connection with the proceeding by each individual, a description of 
the specific services performed, the rates at which each fee has been 
computed, any expenses for which reinbursement is sought, the total 
amount claimed, and the total amount paid or payable by the applicant or 
by any other person or entity for the services provided. The 
adjudicative officer may require the applicant to provide vouchers, 
receipts, or other substantiation for any expenses claimed.
    (d) When a petition may be filed. (1) A petition may be filed 
whenever the applicant has prevailed in the proceeding or in a 
significant and discrete substantive portion of the proceeding, but in 
no case later than 30 days after the Commission's final disposition of 
the proceeding.
    (2) For purposes of this subpart, final disposition means the date 
on which a decision or order disposing of the merits of the proceeding 
or any other complete resolution of the proceeding, such as a settlement 
or voluntary dismissal, becomes final and unappealable, both within the 
Commission and to the courts.
    (3) If review or reconsideration is sought or taken of a decision as 
to which an applicant believes it has prevailed, proceedings for the 
award of fees shall be stayed pending final disposition of the 
underlying controversy. When the United States appeals the underlying 
merits of an adversary adjudication to a court, no decision on an 
application for fees and other expenses in connection with that 
adversary adjudication shall be made until a final and unreviewable 
decision is rendered by the court on the appeal or until the underlying 
merits of the case have

[[Page 89]]

been finally determined pursuant to the appeal. [Rule 502.]

[52 FR 28264, July 29, 1987, as amended at 64 FR 7812, Feb. 17, 1999]



Sec. 502.503  Procedures for considering petitions.

    (a) Filing and service of documents. (1) Any petition for an award 
or other pleading or document related to a petition shall be filed and 
served on all parties to the proceeding in the same manner as other 
pleadings in the proceeding, except as provided in Sec. 502.502(b)(2) 
(confidential financial information).
    (2) The petition and all other pleadings or documents related to the 
petition will be referred to an Administrative Law Judge to initially 
decide the matter as adjudicative officer.
    (b) Reply to petition. (1) Within 30 days after service of a 
petition, counsel representing the agency against which an award is 
sought may file a reply to the petition. Unless counsel requests an 
extension of time for filing or files a statement of intent to negotiate 
under paragraph (b)(2) of this section, failure to file a reply within 
the 30-day period may be treated as a consent to the award requested.
    (2) If agency counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement of 
their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing a reply for an additional 30 days, and 
further extension may be granted by the adjudicative officer upon 
request by agency counsel and the applicant.
    (3) The reply shall explain in detail any objections to the award 
requested and identify the facts relied on in support of counsel's 
position. If the reply is based on any alleged facts not already in the 
record of the proceeding, agency counsel shall include with the reply 
either supporting affidavits or a request for further proceedings under 
paragraph (f) of this section.
    (c) Response to reply. Within 15 days after service of a reply, the 
applicant may file a response. If the response is based on any alleged 
facts not already in the record of the proceeding, the applicant shall 
include with the response either supporting affidavits or a request for 
further proceedings under paragraph (f) of this section.
    (d) Comments by other parties. Any party to a proceeding other than 
the applicant and agency counsel may file comments on an application 
within 30 days after it is served, or on a reply, within 15 days after 
it is served. A commenting party may not participate further in 
proceedings on the application unless the adjudicative officer 
determines that the public interest requires such participation in order 
to permit full exploration of matters raised in the comments.
    (e) Settlement. The applicant and agency counsel may agree on a 
proposed settlement of the award before final action on the application, 
either in connection with a settlement of the underlying proceeding, or 
after the underlying proceeding has been concluded in accordance with 
the rules of this subpart pertaining to settlement. If a prevailing 
party and agency counsel agree on a proposed settlement of an award 
before a petition is filed, the petition shall be filed with the 
proposed settlement.
    (f) Further proceedings. (1) Ordinarily, the determination of an 
award will be made on the basis of the written record. However, on 
request of either the applicant or agency counsel, or on his or her own 
initiative, the adjudicative officer may order further proceedings, such 
as an informal conference, oral argument, additional written submissions 
or, as to issues other than substantial justification (such as the 
applicant's eligibility or substantiation of fees and expenses), 
pertinent discovery or an evidentiary hearing. Such further proceedings 
shall be held only when necessary for full and fair resolution of the 
issues arising from the application, and shall be conducted as promptly 
as possible. Whether or not the position of the agency was substantially 
justified shall be determined on the basis of the administrative record, 
as a whole, which is made in the adversary adjudication for which fees 
and other expenses are sought.
    (2) A request that the adjudicative officer order further 
proceedings under this section shall specifically identify

[[Page 90]]

the information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.
    (g) Decision. The adjudicative officer shall serve an initial 
decision on the application within 60 days after completion of 
proceedings on the application. The decision shall include written 
findings and conclusions on the applicant's eligibility and status as a 
prevailing party, and an explanation of the reasons for any difference 
between the amount requested and the amount awarded. The decision shall 
also include, if at issue, findings on whether the agency's position was 
substantially justified, whether the applicant unduly protracted the 
proceedings, or whether special circumstances make an award unjust. If 
the applicant has sought an award against more than one agency, the 
decision shall allocate responsibility for payment of any award made 
among the agencies, and shall explain the reason for the allocation 
made.
    (h) Commission review. Either the applicant or agency counsel may 
seek review of the initial decision on the fee application, or the 
Commission may decide to review the decision on its own initiative, in 
accordance with Sec. 502.227 of this part. If neither the applicant nor 
agency counsel seeks review and the Commission does not take review on 
its own initiative, the initial decision on the application shall become 
a final decision of the Commission 30 days after it is issued. Whether 
to review a decision is a matter within the discretion of the 
Commission. If review is taken, the Commission will issue a final 
decision on the application or remand the application to the 
adjudicative officer for further proceedings.
    (i) Judicial review. Judicial review of final Commission decisions 
on awards may be sought as provided in 5 U.S.C. 504(c)(2).
    (j) Payment of award. (1)(i) An applicant seeking payment of an 
award shall submit to the comptroller or other disbursing officer of the 
paying agency a copy of the Commission's final decision granting the 
award, accompanied by a certification that the applicant will not seek 
review of the decision in the United States courts.
    (ii) The agency will pay the amount awarded to the applicant within 
60 days.
    (2) Where the Federal Maritime Commission is the paying agency, the 
application for payment of award shall be submitted to: Office of Budget 
and Financial Management, Federal Maritime Commission, Washington, DC 
20573. [Rule 503.]

[52 FR 28264, July 29, 1987, as amended at 64 FR 7812, Feb. 17, 1999]



Subpart W_Compromise, Assessment, Mitigation, Settlement, and Collection 
                           of Civil Penalties

    Source: 49 FR 44418, Nov. 6, 1984, unless otherwise noted. 
Redesignated at 58 FR 27211, May 7, 1993.



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 (46 U.S.C. 42101-42109), 
section 13 of the Shipping Act of 1984 (46 U.S.C. 41107-41109), and 
sections 2(c) and 3(c) of Pub. L. 89-777 (46 U.S.C. 44104) 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.]

[64 FR 7812, Feb. 17, 1999, as amended at 74 FR 50717, Oct. 1, 2009]



Sec. 502.602  Definitions.

    For the purposes of this subpart:
    (a) Assessment means the imposition of a civil penalty by order of 
the Commission after a formal docketed proceeding.
    (b) Commission means the Federal Maritime Commission.
    (c) Compromise means the process whereby a civil penalty for a 
violation is agreed upon by the respondent and

[[Page 91]]

the Commission outside of a formal, docketed proceeding.
    (d) Mitigation means the reduction, in whole or in part, of the 
amount of a civil penalty.
    (e) Person includes individuals, corporations, partnerships, and 
associations existing under or authorized by the laws of the United 
States or of a foreign country.
    (f) Respondent means any person charged with a violation.
    (g) Settlement means the process whereby a civil penalty or other 
disposition of the case for a violation is agreed to in a formal, 
docketed proceeding instituted by order of the Commission.
    (h) Violation includes any violation of sections 19(f)(4), 19(g)(4) 
and 19(k) of the Merchant Marine Act, 1920 (46 U.S.C. 42104(a), 
42104(d), and 42108); any provision of the Shipping Act of 1984 (46 
U.S.C. 40101-41309); sections 2 and 3 of Pub. L. 89-777 (46 U.S.C. 
44101-44106); 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.
    (i) Words in the plural form shall include the singular and vice 
versa; and words importing the masculine gender shall include the 
feminine and vice versa. The terms ``includes'' and ``including'' do not 
exclude matters not listed but which are in the same general class. The 
word ``and'' includes ``or'', except where specifically stated or where 
the context requires otherwise. [Rule 602.]

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 64 FR 7812, Feb. 17, 1999; 74 FR 50717, Oct. 1, 2009]



Sec. 502.603  Assessment of civil penalties: Procedure; criteria for
determining amount; limitations; relation to compromise.

    (a) Procedure for assessment of penalty. The Commission may assess a 
civil penalty only after notice and opportunity for hearing. Civil 
penalty assessment proceedings, including settlement negotiations, shall 
be governed by the Commission's Rules of Practice and Procedure in this 
part. All settlements must be approved by the Presiding Officer. The 
full text of any settlement must be included in the final order of the 
Commission.
    (b) Criteria for determining amount of penalty. In determining the 
amount of any penalties assessed, the Commission shall take into account 
the nature, circumstances, extent and gravity of the violation committed 
and the policies for deterrence and future compliance with the 
Commission's rules and regulations and the applicable statutes. The 
Commission shall also consider the respondent's degree of culpability, 
history of prior offenses, ability to pay and such other matters as 
justice requires.
    (c) Limitations; relation to compromise. When the Commission, in its 
discretion, determines that policy, justice or other circumstances 
warrant, a civil penalty assessment proceeding may be instituted at any 
time for any violation which occurred within five years prior to the 
issuance of the order of investigation. Such proceeding may also be 
instituted at any time after the initiation of informal compromise 
procedures, except where a compromise agreement for the same violations 
under the compromise procedures has become effective under Sec. 
502.604(e). [Rule 603.]

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 64 FR 7812, Feb. 17, 1999]



Sec. 502.604  Compromise of penalties: Relation to assessment
proceedings.

    (a) Scope. Except in pending civil penalty assessment proceedings 
provided for in Sec. 502.603, the Commission, when it has reason to 
believe a violation has occurred, may invoke the informal compromise 
procedures of this section.
    (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 
respondent, by registered or certified mail, or by other means 
reasonably calculated to give notice. The NDL will describe specific 
violation(s) on which the claim is

[[Page 92]]

based, including the particular facts, dates and other elements 
necessary for the respondent to identify the specific conduct 
constituting the alleged violation; the amount of the penalty demanded; 
the availability of alternative dispute resolution, including mediation, 
through the Commission's Office of Consumer Affairs and Dispute 
Resolution Services; and the names of Commission personnel with whom the 
demand may be discussed, if the person desires to compromise the 
penalty. The NDL also will state the deadlines for the institution and 
completion of compromise negotiations and the consequences of failure to 
compromise.
    (c) Request for compromise. Any person receiving a NDL provided for 
in paragraph (b) of this section may, within the time specified, deny 
the violation, or submit matters explaining, mitigating or showing 
extenuating circumstances, as well as make voluntary disclosures of 
information and documents.
    (d) Criteria for compromise. In addition to the factors set forth in 
Sec. 502.603(b), in compromising a penalty claim, the Commission may 
consider litigative probabilities, the cost of collecting the claim and 
enforcement policy.
    (e) Disposition of claims in compromise procedures. (1) When a 
penalty is compromised and the respondent agrees to settle for that 
amount, a compromise agreement shall be executed. (One example of such 
compromise agreement is set forth as appendix A to this subpart.) This 
agreement, after reciting the nature of the claim, will include a 
statement evidencing the respondent's agreement to the compromise of the 
Commission's penalty claim for the amount set forth in the agreement and 
will also embody an approval and acceptance provision which is to be 
signed by the appropriate Commission official. Upon compromise of the 
penalty in the agreed amount, a duplicate original of the executed 
agreement shall be furnished to the respondent.
    (2) Upon completion of the compromise, the Commission may issue a 
public notice thereof, the terms and language of which are not subject 
to negotiation.
    (f) Relation to assessment proceedings. Except by order of the 
Commission, no compromise procedure shall be initiated or continued 
after institution of a Commission assessment proceeding directed to the 
same violations. Any offer of compromise submitted by the respondent 
pursuant to this section shall be deemed to have been furnished by the 
respondent without prejudice and shall not be used against the 
respondent in any proceeding.
    (g) Delegation of compromise authority. The Director, Bureau of 
Enforcement, is delegated authority to issue NDLs and compromise civil 
penalties as set forth in this subpart, provided, however, that approval 
of the Managing Director is obtained prior to issuance of each NDL and 
provided further that compromise agreements shall not be effective 
unless approved by the Managing Director, whose signature evidencing 
approval shall appear on compromise agreements, in addition to that of 
the Director of the Bureau of Enforcement. The Director, Bureau of 
Enforcement, has the authority to negotiate the terms of compromise 
agreements.

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 61 FR 51233, Oct. 1, 1996; 64 FR 7812, 7813, Feb. 17, 1999; 
75 FR 29455, May 26, 2010]



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.
    (b) All checks or other instruments submitted in payment of claims 
shall be made payable to the Federal Maritime Commission.
    (c) Default in payment. Where a respondent fails or refuses to pay a 
penalty properly assessed under Sec. 502.603, or compromised and agreed 
to under Sec. 502.604, appropriate collection efforts will be made by 
the Commission, including, but not limited to referral to the Department 
of Justice for collection. Where such defaulting respondent is a 
licensed freight forwarder, such default also may be grounds for 
revocation or suspension of the respondent's license, after notice and 
opportunity for hearing, unless such notice and

[[Page 93]]

hearing have been waived by the respondent in writing. [Rule 605.]

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 64 FR 7813, Feb. 17, 1999]



    Sec. Appendix A to Subpart W of Part 502--Example of Compromise 
                Agreement To Be Used Under 46 CFR 502.604

                          Compromise Agreement

                          FMC File No. --------

    This Agreement is entered into between:
    (1) the Federal Maritime Commission, hereinafter referred to as 
Commission, and
    (2) ----------------, hereinafter referred to as Respondent.
    Whereas, the Commission is considering the institution of an 
assessment proceeding against Respondent for the recovery of civil 
penalties provided under the [appropriate statute], for alleged 
violations of section --------;
    Whereas, this course of action is the result of practices believed 
by the Commission to have been engaged in by Respondent, to wit:
    [General description of practices and dates or time period involved]
    Whereas, the Commission has authority under the Shipping Act of 1984 
to compromise and collect civil penalties; and,
    Whereas, Respondent has terminated the practices which are the basis 
for the allegations of violation set forth herein, and has instituted 
and indicated its willingness to maintain measures designed to eliminate 
these practices by Respondent, its officers, directors or employees.
    Now Therefore, in consideration of the premises herein, and in 
compromise of all civil penalties arising from the alleged violations, 
Respondent and the Commission hereby agree upon the following terms and 
conditions of compromise and settlement:
    1. Respondent shall make a monetary payment to the Commission 
herewith, by bank cashier's check, in the total amount of $--------.
    2. Upon acceptance in writing of this Agreement by the Director of 
the Bureau of Enforcement of the Commission, this instrument shall 
forever bar the commencement or institution of any assessment proceeding 
or other claim for recovery of civil penalties from the Respondent 
arising from the alleged violations set forth above.
    3. It is expressly understood and agreed that this Agreement is not, 
and is not to be construed as, an admission by Respondent to the alleged 
violations set forth above.

(Respondent's Name)

 By:____________________________________________________________________
 Title:_________________________________________________________________
 Date:__________________________________________________________________

                         Approval and Acceptance

    The above terms, conditions and consideration are hereby approved 
and accepted:

    By the Federal Maritime Commission:

Director, Bureau of Enforcement

 Date:__________________________________________________________________

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 61 FR 51233, Oct. 1, 1996; 65 FR 81759, Dec. 27, 2000]



                    Subpart X_Paperwork Reduction Act



Sec. 502.991  OMB control numbers assigned pursuant to the Paperwork
Reduction Act.

    This section displays the control numbers assigned to information 
collection requirements of the Commission in this part by the Office of 
Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 
1980, Pub. L. 96-511. The Commission intends that this section comply 
with the Act, which requires that agencies display a current control 
number assigned by the Director of OMB for each agency information 
collection requirement:

------------------------------------------------------------------------
                                                            Current OMB
                         Section                            control no.
------------------------------------------------------------------------
502.27 (Form FMC.12)....................................       3072-0001
------------------------------------------------------------------------


[49 FR 44369, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993]



PART 503_PUBLIC INFORMATION--Table of Contents



                            Subpart A_General

Sec.
503.1 Statement of policy.

              Subpart B_Publication in the Federal Register

503.11 Materials to be published.
503.12 Effect of nonpublication.
503.13 Incorporation by reference.

Subpart C_Records, Information and Materials Generally Available to the 
     Public Without Resort to Freedom of Information Act Procedures

503.21 Mandatory public records.
503.22 Records available at the Office of the Secretary.

[[Page 94]]

503.23 Records available upon written request.
503.24 Information available via the internet.

   Subpart D_Requests for records under the Freedom of Information Act

503.31 Records available upon written request under the Freedom of 
          Information Act.
503.32 Procedures for responding to requests made under the Freedom of 
          Information Act.
503.33 Exceptions to availability of records.
503.34 Annual report of public information request activity.

                             Subpart E_Fees

503.41 Policy and services available.
503.42 Payment of fees and charges.
503.43 Fees for services.

                 Subpart F_Information Security Program

503.51 Definitions.
503.52 Senior agency official.
503.53 Oversight Committee.
503.54 Original classification.
503.55 Derivative classification.
503.56 General declassification and downgrading policy.
503.57 Mandatory review for declassification.
503.58 Appeals of denials of mandatory declassification review requests.
503.59 Safeguarding classified information.

   Subpart G_Access to Any Record of Identifiable Personal Information

503.60 Definitions.
503.61 Conditions of disclosure.
503.62 Accounting of disclosures.
503.63 Request for information.
503.64 Commission procedure on request for information.
503.65 Request for access to records.
503.66 Amendment of a record.
503.67 Appeals from denial of request for amendment of a record.
503.68 Exemptions.
503.69 Fees.

Subpart H_Public Observation of Federal Maritime Commission Meetings and 
     Public Access to Information Pertaining to Commission Meetings

503.70 Policy.
503.71 Definitions.
503.72 General rule--meetings.
503.73 Exceptions--meetings.
503.74 Procedures for closing a portion or portions of a meeting or a 
          portion or portions of a series of meetings on agency 
          initiated requests.
503.75 Procedures for closing a portion of a meeting on request 
          initiated by an interested person.
503.76 Effect of vote to close a portion or portions of a meeting or 
          series of meetings.
503.77 Responsibilities of the General Counsel of the agency upon a 
          request to close any portion of any meeting.
503.78 General rule--information pertaining to meeting.
503.79 Exceptions--information pertaining to meeting.
503.80 Procedures for withholding information pertaining to meeting.
503.81 Effect of vote to withhold information pertaining to meeting.
503.82 Public announcement of agency meeting.
503.83 Public announcement of changes in meeting.
503.84 [Reserved]
503.85 Agency recordkeeping requirements.
503.86 Public access to records.
503.87 Effect of provisions of this subpart on other subparts.

    Authority: 5 U.S.C. 552, 552a, 552b, 553; 31 U.S.C. 9701; E.O. 13526 
of January 5, 2010 (75 FR 707), sections 5.1(a) and (b).

    Source: 49 FR 44401, Nov. 6, 1984, unless otherwise noted.



                            Subpart A_General



Sec. 503.1  Statement of policy.

    (a) The Chairman of the Federal Maritime Commission is responsible 
for the effective administration of the provisions of Public Law 89-487, 
as amended. The Chairman shall carry out this responsibility through the 
program and the officials as hereinafter provided in this part.
    (b) In addition, the Chairman, pursuant to his responsibility, 
hereby directs that every effort be expended to facilitate the maximum 
expedited service to the public with respect to the obtaining of 
information and records. Accordingly, members of the public may make 
requests for information, records, decisions or submittals in accordance 
with the provisions of Sec. 503.31.

[[Page 95]]



              Subpart B_Publication in the Federal Register



Sec. 503.11  Materials to be published.

    The Commission shall separately state and concurrently publish the 
following materials in the Federal Register for the guidance of the 
public:
    (a) Descriptions of its central and field organization and the 
established places at which the officers from whom, and the methods 
whereby, the public may secure information, make submittals or requests, 
or obtain decisions.
    (b) Statements of the general course and method by which its 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available.
    (c) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations.
    (d) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability formulated and adopted by the agency.
    (e) Every amendment, revision, or repeal of the foregoing.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23547, May 3, 1999]



Sec. 503.12  Effect of nonpublication.

    Except to the extent that a person has actual and timely notice of 
the terms thereof, no person shall in any manner be required to resort 
to, or be adversely affected by any matter required to be published in 
the Federal Register and not so published.



Sec. 503.13  Incorporation by reference.

    For purposes of this subpart, matter which is reasonably available 
to the class of persons affected hereby shall be deemed published in the 
Federal Register when incorporated by reference therein with the 
approval of the Director of the Office of the Federal Register.

[49 FR 44401, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Subpart C_Records, Information and Materials Generally Available to the 
     Public Without Resort to Freedom of Information Act Procedures

    Source: 63 FR 53308, Oct. 5, 1998, unless otherwise noted.



Sec. 503.21  Mandatory public records.

    (a) The Commission, as required by the Freedom of Information Act, 5 
U.S.C. 552, shall make the following materials available for public 
inspection and copying:
    (1) Final opinions (including concurring and dissenting opinions) 
and all orders made in the adjudication of cases.
    (2) Those statements of policy and interpretations which have been 
adopted by the Commission.
    (3) Administrative staff manuals and instructions to staff that 
affect any member of the public.
    (4) Copies of all records, regardless of form or format, which have 
been released to any person pursuant to a Freedom of Information Act 
request, and which the Secretary determines have become or are likely to 
become the subject of subsequent requests for substantially the same 
records, and a general index of such records.
    (b) To prevent unwarranted invasion of personal privacy, the 
Secretary may delete identifying details when it makes available or 
publishes an opinion, statement of policy, interpretation, staff manual, 
instruction, or copies of records referred to in paragraph (a)(4) of 
this section. In each case, the justification for the deletion shall be 
explained fully in writing, and the extent of such deletion shall be 
indicated on that portion of the record which is made available or 
published, unless including that indication would harm an interest 
protected by an exemption in Sec. 503.33 under which the deletion is 
made. If technically feasible, the extent of the deletion shall be 
indicated at the place in the record where the deletion was made.
    (c) The Commission maintains and makes available for public 
inspection and copying a current index providing identifying information 
for the public

[[Page 96]]

as to any matter which is issued, adopted, or promulgated, and which is 
required by paragraph (a) of this section to be made available or 
published.
    (1) The index shall be available at the Office of the Secretary, 
Federal Maritime Commission, Washington, DC 20573. Publication of such 
indices has been determined by the Commission to be unnecessary and 
impracticable. The indices shall, nonetheless, be provided to any member 
of the public at a cost not in excess of the direct cost of duplication 
of any such index upon request therefor.
    (2) No final order, opinion, statement of policy, interpretation, or 
staff manual or instruction that affects any member of the public will 
be relied upon, used, or cited as precedent by the Commission against 
any private party unless:
    (i) It has been indexed and either made available or published as 
provided by this subpart; or
    (ii) That private party shall have actual and timely notice of the 
terms thereof.
    (d) Duplication of records may be subject to fees as prescribed in 
subpart E of this part.



Sec. 503.22  Records available at the Office of the Secretary

    (a) The following records will be made available for inspection and 
copying at the Office of the Secretary, Federal Maritime Commission, 800 
North Capitol St., NW, Washington, DC 20573, without the requirement of 
a written request. Access to requested records may be delayed if they 
have been sent to archives.
    (1) Proposed and final rules and regulations of the Commission 
including general substantive rules, statements of policy and 
interpretations, and rules of practice and procedure.
    (2) Reports of decisions (including concurring and dissenting 
opinions), orders and notices in all formal proceedings.
    (3) Official docket files in all formal proceedings including, but 
not limited to, orders, notices, pertinent correspondence, transcripts, 
exhibits, and briefs, except for materials which are the subject of a 
protective order. Copies of transcripts may only be available from the 
reporting company contracted by the Commission. Contact the Office of 
the Secretary for the name and address of this company.
    (4) News releases.
    (5) Approved summary minutes of Commission actions showing final 
votes, except for minutes of closed Commission meetings which are not 
available until the Commission publicly announces the results of such 
deliberations.
    (6) Annual reports of the Commission.
    (b) Certain fees may be assessed for duplication of records made 
available by this section as prescribed in subpart E of this part.

[63 FR 53308, Oct. 5, 1998, as amended at 64 FR 23547, May 3, 1999]



Sec. 503.23  Records available upon written request.

    (a) The following Commission records are generally available for 
inspection and copying, without resort to Freedom of Information Act 
procedures, upon request in writing addressed to the Office of the 
Secretary, Federal Maritime Commission, Washington, DC 20573:
    (1) Agreements filed and in effect pursuant to section 5 (46 U.S.C. 
40301(d)-(e), 40302-40303, 40305) and 6 (46 U.S.C. 40304, 40306, 
41307(b)-(d)) of the Shipping Act of 1984.
    (2) Agreements filed under section 5 of the Shipping Act of 1984 (46 
U.S.C. 40301(d)-(e), 40302-40303, 40305) which have been noticed in the 
Federal Register.
    (3) Tariff data filed in the Commission's ATFI system prior to May 
1, 1999.
    (4) List of licensed ocean freight forwarders.
    (b) Certain fees may be assessed for duplication of records made 
available by this section as prescribed in subpart E of this part.

[63 FR 53308, Oct. 5, 1998, as amended at 64 FR 23547, May 3, 1999; 74 
FR 50717, Oct. 1, 2009]



Sec. 503.24  Information available via the internet.

    (a) The Commission maintains an internet web site. The Commission 
home page may be found at http://www.fmc.gov.

[[Page 97]]

    (b) The following general information, records, and resources are 
accessible through the home page:
    (1) General descriptions of the functions, bureaus, and offices of 
the Commission, phone numbers and e-mail addresses for Commission 
officials, as well as locations of Area Representatives;
    (2) Information about filing complaints;
    (3) Commonly used forms;
    (4) A public information handbook describing the types of 
information available from the Commission and how to access such 
information;
    (5) A Freedom of Information Act Electronic Reading Room which 
contains:
    (i) Copies of final decisions in adjudicatory proceedings issued 
since November 1, 1996;
    (ii) Recently issued final rules and pending proposed rules;
    (iii) Access to statements of policy and interpretations as 
published in part 545 of this chapter; and
    (iv) Records created by the Commission since November 1, 1996, and 
made available under Sec. 503.21, paragraph (a)(4).
    (6) Commission regulations as codified in Title 46 of the Code of 
Federal Regulations;
    (7) News releases issued by the Commission;
    (8) Statements and remarks from the Chairman and Commissioners;
    (9) A connection to the Government Information Locator Service 
maintained by the Government Printing Office, which identifies 
Commission databases; and
    (10) Privacy Act information;
    (11) Lists of the location of all common carrier and conference 
tariffs and publicly available terminal schedules of marine terminal 
operators; and
    (12) A list of licensed ocean transportation intermediaries which 
have furnished the Commission with evidence of financial responsibility.
    (c) Comments or questions regarding the home page should be 
addressed via e-mail to webmaster@fmc.gov.

[63 FR 53308, Oct. 5, 1998, as amended at 64 FR 23547, May 3, 1999]



     Subpart D_Requests for Records Under the Freedom of Information

    Source: 63 FR 53310, Oct. 5, 1998, unless otherwise noted.



Sec. 503.31  Records available upon written request under the Freedom
of Information Act.

    (a) A member of the public may request permission to inspect, copy 
or be provided with any Commission records not described in subpart C of 
this part. Such a request must:
    (1) Reasonably describe the record or records sought;
    (2) Be submitted in writing to the Secretary, Federal Maritime 
Commission, Washington, DC 20573; and
    (3) Be clearly marked on the exterior with the letters ``FOIA''.
    (b) The Secretary shall evaluate each request in conjunction with 
the official having responsibility for the subject matter area and the 
General Counsel, and the Secretary shall determine whether or not to 
grant the request in accordance with the provisions of this subpart.
    (c) In making any record available to a person under this subpart, 
the Secretary shall provide the record in any form or format requested 
by the person if the record is readily reproducible by the Secretary in 
that form or format.
    (d) Certain fees may be assessed for processing of requests under 
this subpart as prescribed in subpart E of this part.



Sec. 503.32  Procedures for responding to requests made under the 
Freedom of Information Act.

    (a) Determination to grant or deny request. Upon request by any 
member of the public for documents, made in accordance with the rules of 
this part, the Commission's Secretary or his or her delegate in his or 
her absence, shall determine whether or not such request shall be 
granted.
    (1) Such determination shall be made by the Secretary within twenty 
(20) days (excluding Saturdays, Sundays and legal public holidays) after 
receipt of such request, except as provided in paragraph (c) of this 
section.
    (2) Upon granting a request the Secretary shall promptly make 
records

[[Page 98]]

available to the requestor. Upon denial of such a request the Secretary 
shall promptly notify the requestor of the determination, explain the 
reason for denial, give an estimate of the volume of matter denied, set 
forth the names and titles or positions of each person responsible for 
the denial of the request, and notify the party of its right to appeal 
that determination to the Chairman.
    (3)(i) Any party whose request for documents or other information 
pursuant to this part has been denied in whole or in part by the 
Secretary may appeal such determination. Any such appeal must:
    (A) Be addressed to: Chairman, Federal Maritime Commission, 
Washington, D.C. 20573-0001; and
    (B) Be filed not later than ten (10) working days following receipt 
of notification of denial or receipt of a part of the records requested.
    (ii) The Chairman or the Chairman's specific delegate in his or her 
absence, shall make a determination with respect to that appeal within 
twenty (20) days (excepting Saturdays, Sundays and legal public 
holidays) after receipt of such appeal, except as provided in paragraph 
(b) of this section.
    (iii) If, on appeal, the denial is upheld, either in whole or in 
part, the Chairman shall so notify the party submitting the appeal and 
shall notify such person of the provisions of 5 U.S.C. 552(a)(4) 
regarding judicial review of such determination upholding the denial. 
Notification shall also include the statement that the determination is 
that of the Chairman of the Federal Maritime Commission and the name of 
the Chairman.
    (b) Extension of time limits. (1) In unusual circumstances, as 
defined in paragraph (b)(2) of this section, the time limits prescribed 
with respect to initial actions in response to a FOIA request or actions 
on appeal may be extended by written notice from the Secretary of the 
Commission to the person making such request, setting forth the reasons 
for such extension and the date on which a determination is expected to 
be dispatched. No such notice shall specify a date that would result in 
an extension for more than ten (10) working days, except as provided in 
paragraph (b)(3) of this section.
    (2) As used in this paragraph, unusual circumstances means, but only 
to the extent reasonably necessary to the proper processing of the 
particular request:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject matter interest therein.
    (3) If the time limit is extended as prescribed under this section, 
and the request cannot be processed within the extended time limit, the 
Secretary shall notify the requestor, and either provide the requestor 
with an opportunity to limit the scope of the request so that it may be 
processed within the time limit, or provide the requestor an opportunity 
to arrange with the Secretary an alternative time frame for processing 
the request or a modified request.
    (c) Aggregation of requests. Certain requests by the same requestor, 
or by a group of requestors acting in concert, may be aggregated:
    (1) Upon the Secretary's reasonable belief that such requests 
actually constitute a single request, which if not aggregated would 
satisfy the unusual circumstances specified in paragraph (b)(2) of this 
section; and
    (2) If the requests involve clearly related matters.
    (d) Multitrack processing of requests. The Secretary may provide for 
multitrack processing of requests based on the amount of time or work 
involved in processing requests.
    (e) Expedited processing of requests. (1) The Secretary will provide 
for expedited processing of requests for records when:

[[Page 99]]

    (i) The person requesting the records can demonstrate a compelling 
need; or
    (ii) In other cases, in the Secretary's discretion.
    (2) The term compelling need means:
    (i) A failure to obtain requested records on an expedited basis 
under this paragraph could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual; or
    (ii) With respect to a request made by a person primarily engaged in 
disseminating information, urgency to inform the public concerning 
actual or alleged Federal Government activity.
    (3) A demonstration of compelling need by a person making a request 
for expedited processing must be made in the form of a statement 
describing the circumstances and certified by such person to be true and 
correct to the best of such person's knowledge and belief.
    (4) The Secretary shall determine whether to provide expedited 
processing, and provide notice of the determination to the person making 
the request, within ten (10) working days after the date of the request.
    (5) Appeal of the determination not to provide expedited processing 
should be sought in accordance with the provisions of paragraph 
(a)(3)(i) of Sec. 503.32, and will be considered expeditiously.
    (6) Any request granted expedited processing shall be processed as 
soon as practicable.



Sec. 503.33  Exceptions to availability of records.

    (a) Except as provided in paragraph (b) of this section, the 
following records may be withheld from disclosure:
    (1) Records specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and which are in fact properly classified pursuant to 
such Executive order. Records to which this provision applies shall be 
deemed by the Commission to have been properly classified. This 
exception may apply to records in the custody of the Commission which 
have been transmitted to the Commission by another agency which has 
designated the record as nonpublic under an Executive order.
    (2) Records related solely to the internal personnel rules and 
practices of the Commission.
    (3) Records specifically exempted from disclosure by statute, 
provided that such statute:
    (i) Requires that the matter be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (4) Trade secrets and commercial financial information obtained from 
a person and privileged or confidential.
    (5) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the Commission.
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such

[[Page 100]]

disclosure could reasonably be expected to risk circumvention of the 
law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (b) Nothing in this section authorizes withholding of information or 
limiting the availability of records to the public except as 
specifically stated in this part, nor shall this part be authority to 
withhold information from Congress.
    (c) Any reasonably segregable portion of a record shall be provided 
to any person requesting such record after deletion of the portions 
which are exempt under this part. The amount of information deleted 
shall be indicated on the released portion of the record, unless 
including that indication would harm an interest protected by the 
exemption in this section under which the deletion is made. If 
technically feasible, the amount of the information deleted shall be 
indicated at the place in the record where such deletion is made.
    (d) Whenever a request is made which involves access to records 
described in paragraph (a)(7)(i) of this section and the investigation 
or proceeding involves a possible violation of criminal law, and there 
is reason to believe that the subject of the investigation or proceeding 
is not aware of its pendency, and disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, the Commission may, during only such time as that 
circumstance continues, treat the records as not subject to the 
requirements of 5 U.S.C. 552 and this subpart.



Sec. 503.34  Annual report of public information request activity.

    (a) On or before February 1 of each year, the Commission shall 
submit to the Attorney General of the United States, as required by the 
Attorney General, a report which shall cover the preceding fiscal year 
and which shall include:
    (1) The number of determinations made not to comply with requests 
for records made to the Commission under this Subpart and the reasons 
for each such determination;
    (2)(i) The number of appeals made by persons under Sec. 503.32, the 
result of such appeals, and the reason for the action upon each appeal 
that results in a denial of information; and
    (ii) A complete list of all statutes relied upon to authorize 
withholding of information under Sec. 503.33(a)(3) , a description of 
whether a court has upheld the Commission's decision to withhold 
information under each such statute, and a concise description of the 
scope of any information withheld;
    (3) The number of requests for records pending before the Commission 
as of September 30 of the preceding year, and the median number of days 
that such requests had been pending as of that date;
    (4) The number of requests for records received by the Commission 
and the number of requests which the Commission processed;
    (5) The median number of days taken to process different types of 
requests;
    (6) The total amount of fees collected for processing requests; and
    (7) The number of full-time staff devoted to processing requests for 
records under this section, and total amount expended for processing 
such requests.
    (b) Each such report shall be made available to the public at the 
Office of the Secretary, Federal Maritime Commission, Washington, D.C. 
20573 and on the Commission's web site (www.fmc.gov).



                             Subpart E_Fees



Sec. 503.41  Policy and services available.

    Pursuant to policies established by Congress, the Government's costs 
for services provided to identifiable persons are to be recovered by the 
payment of fees (Independent Offices Appropriations Act, 31 U.S.C. 9701 
and Freedom of Information Reform Act of 1986, October 27, 1986, 5 
U.S.C. 552). Except as otherwise noted, it is the general policy of the 
Commission not to waive or reduce service and filing fees contained in 
this chapter. In extraordinary situations, the Commission will accept 
requests for waivers or fee reductions. Such requests are to be made to 
the Secretary of the Commission at the time of the information request 
or

[[Page 101]]

the filing of documents and must demonstrate that the waiver or 
reduction of a fee is in the best interest of the public, or that 
payment of a fee would impose an undue hardship. The Secretary will 
notify the requestor of the decision to grant or deny the request for 
waiver or reduction.
    (a) Upon request, the following services are available upon the 
payment of the fees hereinafter prescribed; except that no fees shall be 
assessed for search, duplication or review in connection with requests 
for single copies of materials described in Sec. Sec. 503.11 and 
503.21:
    (1) Records/documents search.
    (2) Duplication of records/documents.
    (3) Review of records/documents.
    (4) Certification of copies of records/documents.
    (b) Fees shall also be assessed for the following services provided 
by the Commission:
    (1) Placing one's name, as an interested party, on the mailing list 
of a docketed proceeding.
    (2) Processing nonattorney applications to practice before the 
Commission.

[49 FR 44401, Nov. 6, 1984, as amended at 52 FR 13682, Apr. 24, 1987; 59 
FR 59170, Nov. 16, 1994; 63 FR 50535, Sept. 22, 1998]



Sec. 503.42  Payment of fees and charges.

    The fees charged for special services may be paid through the mail 
by check, draft, or postal money order, payable to the Federal Maritime 
Commission, except for charges for transcripts of hearings. Transcripts 
of hearings, testimony and oral argument are furnished by a 
nongovernmental contractor, and may be purchased directly from the 
reporting firm.



Sec. 503.43  Fees for services.

    (a) Definitions. The following definitions apply to the terms when 
used in this subpart:
    (1) Search means all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents. Search for material will be 
done in the most efficient and least expensive manner so as to minimize 
costs for both the agency and the requester. Search is distinguished, 
moreover, from review of material in order to determine whether the 
material is exempt from disclosure. Searches may be done manually or by 
computer using existing programming.
    (2) Duplication means the process of making a copy of a document 
necessary to respond to a Freedom of Information Act or other request. 
Such copies can take the form of paper or machine readable documentation 
(e.g., magnetic tape or disk), among others.
    (3) Review means the process of examining documents located in 
response to a commercial use request to determine whether any portion of 
any document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.g., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (4) Commercial use request means a request from or on behalf of one 
who seeks information for a use or purpose that furthers the commercial, 
trade, or profit interests of the requester or the person on whose 
behalf the request is made. In determining whether a requester properly 
belongs in this category, the agency must determine the use to which a 
requester will put the documents requested. Where the agency has 
reasonable cause to doubt the use to which a requester will put the 
records sought, or where that use is not clear from the request itself, 
the agency will seek additional clarification before assigning the 
request to a specific category.
    (5) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (6) Non-commercial scientific institution means an institution that 
is not operated on a commercial basis as that term is referenced in 
paragraph (a)(4) of this section, and which is operated solely for the 
purpose of conducting scientific research the results of which are not

[[Page 102]]

intended to promote any particular product or industry.
    (7) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term news means information that is 
about current events or that would be of current interest to the public. 
Examples of news media entities include television or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only in those instances when they can qualify as disseminators of news) 
who make their products available for purchase or subscription by the 
general public. These examples are not intended to be all-inclusive. As 
traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services), such 
alternative media would be included in this category. Freelance 
journalists, may be regarded as working for a news organization if they 
can demonstrate a solid basis for expecting publication through that 
organization, even though not actually employed by it. A publication 
contract would be the clearest proof, but the agency may also look to 
the past publication record of a requester in making this determination.
    (8) Direct costs means those expenditures which the agency actually 
incurs in searching for and duplicating (and in the case of commercial 
requester, reviewing) documents to respond to a Freedom of Information 
Act (``FOIA'') request. Direct costs include, for example, the salary of 
the employee performing the work (the basic rate of pay for the employee 
plus 17.5 percent of that rate to cover benefits) and the cost of 
operating duplicating machinery. Not included in direct costs are 
overhead expenses such as costs of space, and heating or lighting the 
facility in which the records are stored.
    (b) General. (1) The basic fees set forth in paragraph (c) of this 
section provide for documents to be mailed with postage prepaid. If copy 
is to be transmitted by registered, certified, air, or special delivery 
mail, postage therefor will be added to the basic fee. Also, if special 
handling or packaging is required, costs thereof will be added to the 
basic fee.
    (2) The fees for search, duplication and review set forth in 
paragraph (c) of this section reflect the full allowable direct costs 
expected to be incurred by the agency for the service. Costs of search 
and review may be assessed even if it is determined that disclosure of 
the records is to be withheld. Cost of search may be assessed even if 
the agency fails to locate the records. Requesters much reasonably 
describe the records sought. The following restrictions, limitations and 
guidelines apply to the assessment of such fees:
    (i) For commercial use requesters, charges recovering full direct 
costs for search, review and duplication of records will be assessed.
    (ii) For educational and non-commercial scientific institution 
requesters, no charge will be assessed for search or review of records. 
Charges recovering full direct costs for duplication of records will be 
assessed, excluding charges for the first 100 pages. To be eligible for 
inclusion in this category, requesters must show that the request is 
being made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use, but are sought in 
furtherance of scholarly (if the request is from an educational 
institution) or scientific (if the request is from a non-commercial 
scientific institution) research.
    (iii) For representative of the news media requesters, no charge 
will be assessed for search or review of records. Charges recovering 
full direct costs for duplication of records will be assessed, excluding 
charges for the first 100 pages.
    (iv) For all other requesters, no charge will be assessed for review 
of records. Charges recovering full direct costs for search and 
duplication of records will be assessed excluding charges for the first 
100 pages of duplication and the first two hours of search time. 
Requests from individuals for records about themselves, filed in a 
Commission system of records, will be treated under the fee provisions 
of the Privacy Act of 1984 which permit fees only for duplication.
    (v) No fee may be charged for search, review or duplication if the 
costs of

[[Page 103]]

routine collection and processing of the fee are likely to exceed the 
amount of the fee.
    (vi) Documents shall be furnished without any charge or at a reduced 
charge if disclosure of the information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in the commercial interest of the requester. In determining whether a 
waiver or reduction of charges is appropriate the following factors will 
be taken into consideration.
    (A) The subject of the request: Whether the subject of the requested 
records concerns the operations or activities of the government;
    (B) The informative value of the information to be disclosed: 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities;
    (C) The contribution to an understanding of the subject by the 
general public likely to result from disclosure: Whether disclosure of 
the requested information will contribute to public understanding;
    (D) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute significantly to public 
understanding of government operations or activities;
    (E) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (F) The primary interest in disclosure: Whether the magnitude of the 
identified commercial interest of the requester is sufficiently large, 
in comparison with the public interest in disclosure, that disclosure is 
primarily in the commercial interest of the requester.
    (vii) Whenever it is anticipated that fees chargeable under this 
section will exceed $25.00 and the requester has not indicated in 
advance a willingness to pay fees as high as anticipated, the requester 
will be notified of the amount of the anticipated fee. In such cases the 
requester will be given an opportunity to confer with Commission 
personnel with the object of reformulating the request to meet the needs 
of the requester at a lower cost.
    (viii) Interest may be charged record requesters who fail to pay 
fees assessed. Assessment of interest may begin on the amount billed 
starting on the 31st day following the day on which the billing was 
sent. Interest will be at the rate prescribed in section 3717 of title 
31 U.S.C., and will accrue from the date of the billings. Receipt of 
payment by the agency will stay the accrual of interest.
    (ix) Whenever it reasonably appears that a requester of records or a 
group of requesters is attempting to break a request down into a series 
of requests for the purpose of evading the assessment of fees, such 
requests will be aggregated and fees assessed accordingly. Multiple 
requests on unrelated subjects will not be aggregated.
    (x) The agency may require a requester to make advance payment only 
when:
    (A) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), in 
which case the requester will be required to pay the full amount owed 
plus any applicable interest as provided above, and to make an advance 
payment of the full amount of the estimated fee before the agency begins 
to process a new request or a pending request from that requester; or
    (B) The agency estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250, in which 
case, the agency will notify the requester of the likely cost and obtain 
satisfactory assurance of full payment where the requester has a history 
of prompt payment of FOIA fees, or will require an advance payment of an 
amount up to the full estimated charges in the case of requesters with 
no history of payment.
    (xi) Unless applicable fees are paid, the agency may use the 
authorities of the Debt Collection Act (Pub. L. 97-365), including 
disclosure to consumer reporting agencies and use of collection agencies 
where appropriate to encourage payment.
    (xii) Whenever action is taken under paragraphs (b)(2)(viii) and 
(b)(2)(ix) of this section, the administrative time

[[Page 104]]

limits prescribed in subsection (a)(6) of 5 U.S.C. 552 (i.e., 10 working 
days from receipt of initial requests and 20 working days from receipt 
of appeals from initial denial, plus permissible extensions of these 
time limits will begin only after the Commission has received fee 
payments described above.
    (c) Charges for search, review, duplication and certification. (1) 
Records search will be performed by Commission personnel at the 
following rates:
    (i) Search will be performed by clerical/administrative personnel at 
a rate of $19 per hour and by professional/executive personnel at a rate 
of $48 per hour.
    (ii) Minimum charge for record search is $19.
    (2) Charges for review of records to determine whether they are 
exempt from disclosure under Sec. 503.33 shall be assessed to recover 
full costs at the rate of $79 per hour. Charges for review will be 
assessed only for initial review to determine the applicability of a 
specific exemptions to a particular record. No charge will be assessed 
for review at the administrative appeal level.
    (3) Charges for duplication of records and documents will be 
assessed as follows, limited to size 8\1/2\ x 14 
or smaller:
    (i) If performed by requesting party, at the rate of five cents per 
page (one side).
    (ii) By Commission personnel, at the rate of five cents per page 
(one side) plus $19 per hour.
    (iii) Minimum charge for copying is $4.75.
    (iv) No charge will be made by the Commission for notices, 
decisions, orders, etc., required by law to be served on a party to any 
proceeding or matter before the Commission. No charge will be made for 
single copies of such Commission issuances individually requested in 
person or by mail.
    (4) The certification and validation (with Federal Maritime 
Commission seal) of documents filed with or issued by the Commission 
will be available at $94 for each certification.
    (d) To have one's name and address placed on the mailing list of a 
specific docket as an interested party to receive all issuances 
pertaining to that docket: $9 per proceeding.
    (e) Applications for admission to practice before the Commission for 
persons not attorneys at law must be accompanied by a fee of $104 
pursuant to Sec. 502.27 of this chapter.

[49 FR 44401, Nov. 6, 1984, as amended at 52 FR 13683, Apr. 24, 1987; 59 
FR 59170, Nov. 16, 1994; 63 FR 50535, Sept. 22, 1998; 67 FR 39859, June 
11, 2002; 70 FR 10329, Mar. 3, 2005]



                 Subpart F_Information Security Program



Sec. 503.51  Definitions.

    (a) Access means the ability or opportunity to gain knowledge of 
classified information.
    (b) Classification means the act or process by which information is 
determined to be classified information.
    (c) Classification guide means a documentary form of instruction or 
source that prescribes the classification of specific information issued 
by an original classification authority that identifies the elements of 
information regarding a specific subject that must be classified and 
establishes the level and duration of classification for each such 
element.
    (d) Classified national security information (hereafter ``classified 
information'') means information that has been determined pursuant to 
Executive Order 12958 or any predecessor order in force to require 
protection against unauthorized disclosure and is marked to indicate its 
classified status when in documentary form.
    (e) Commission means the Federal Maritime Commission.
    (f) Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    (g) Derivative classification means the incorporating, paraphrasing, 
restating or generating in new form information that is already 
classified, and marking the newly developed material consistent with the 
classification markings that apply to the source information. Derivative 
classification includes the classification of information based on 
classification guidance. The duplication or reproduction of existing 
classified information is not derivative classification.

[[Page 105]]

    (h) Downgrading means a determination by a declassification 
authority that information classified and safeguarded at a specified 
level shall be classified and safeguarded at a lower level.
    (i) Foreign government information means:
    (1) Information provided to the United States Government by a 
foreign government or governments, an international organization of 
governments, or any element thereof, with the expectation that the 
information, the source of the information, or both, are to be held in 
confidence;
    (2) Information produced by the United States pursuant to or as a 
result of a joint arrangement with a foreign government or governments, 
or an international organization of governments, or any element thereof, 
requiring that the information, the arrangement, or both, are to be held 
in confidence; or
    (3) Information received and treated as ``Foreign Government 
Information'' under the terms of Executive Order 13526 or any 
predecessor order.
    (j) Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that meets the requirements under section 3.5 of 
Executive Order 13526.
    (k) Multiple sources means two or more source documents, 
classification guides, or a combination of both.
    (l) National security means the national defense or foreign 
relations of the United States.
    (m) Need to know means a determination made by an authorized holder 
of classified information that a prospective recipient requires access 
to specific classified information in order to perform or assist in a 
lawful and authorized governmental function.
    (n) Original classification means an initial determination that 
information requires, in the interest of national security, protection 
against unauthorized disclosure.
    (o) Original classification authority means an individual authorized 
in writing, either by the President, or by agency heads or other 
officials designated by the President, to classify information in the 
first instance.
    (p) Self-inspection means the internal review and evaluation of 
individual Commission activities and the Commission as a whole with 
respect to the implementation of the program established under Executive 
Order 13526 and its implementing directives.
    (q) Senior agency official means the official designated by the 
Chairman under section 5.4(d) of Executive Order 13526 to direct and 
administer the Commission's program under which classified information 
is safeguarded.
    (r) Source document means an existing document that contains 
classified information that is incorporated, paraphrased, restated, or 
generated in new form into a new document.
    (s) Unauthorized disclosure means a communication or physical 
transfer of classified information to an unauthorized recipient.

[64 FR 23547, May 3, 1999, as amended at 76 FR 10263, Feb. 24, 2011]



Sec. 503.52  Senior agency official.

    The Managing Director is designated as Senior Agency Official of the 
Commission, and shall be responsible for directing, administering and 
reporting on the Commission's information security program, which 
includes oversight (self-inspection) and security information programs 
to ensure effective implementation of Executive Orders 13526 and 12968 
and 32 CFR part 2001.

[76 FR 10263, Feb. 24, 2011]



Sec. 503.53  Oversight Committee.

    An Oversight Committee is established, under the chairmanship of the 
Senior Agency Official with the following responsibilities:
    (a) Establish a Commission security education program to familiarize 
all personnel who have or may have access to classified information with 
the provisions of Executive Order 13526 and directives of the 
Information Security Oversight Office. The program shall include 
initial, refresher, and termination briefings;
    (b) Establish controls to ensure that classified information is 
used, processed, stored, reproduced, and transmitted only under 
conditions that will provide adequate protection and prevent access by 
unauthorized persons;

[[Page 106]]

    (c) Act on all suggestions and complaints concerning the 
Commission's information security program;
    (d) Recommend appropriate administrative action to correct abuse or 
violations of any provision of Executive Order 13526; and
    (e) Consider and decide other questions concerning classification 
and declassification that may be brought before it.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23548, May 3, 1999; 76 
FR 10263, Feb. 24, 2011]



Sec. 503.54  Original classification.

    (a) No Commission Member or employee has the authority to originally 
classify information.
    (b) If a Commission Member or employee develops information that 
appears to require classification, or receives any foreign government 
information as defined in section 6.1(s) of Executive Order 13526, the 
Member or employee shall immediately notify the Senior Agency Official 
and appropriately protect the information.
    (c) If the Senior Agency Official believes the information warrants 
classification, it shall be sent to the appropriate agency with original 
classification authority over the subject matter, or to the Information 
Security Oversight Office, for review and a classification 
determination.
    (d) If there is reasonable doubt about the need to classify 
information, it shall be safeguarded as if it were classified pending a 
determination by an original classification authority. If there is 
reasonable doubt about the appropriate level of classification, it shall 
be safeguarded at the higher level of classification pending a 
determination by an original classification authority.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23548, May 3, 1999; 76 
FR 10263, Feb. 24, 2011]



Sec. 503.55  Derivative classification.

    (a) In accordance with Part 2 of Executive Order 13526 and 
directives of the Information Security Oversight Office, the 
incorporation, paraphrasing, restating or generation in new form of 
information that is already classified, and the marking of newly 
developed material consistent with the classification markings that 
apply to the source information, is derivative classification.
    (1) Derivative classification includes the classification of 
information based on classification guidance.
    (2) The duplication or reproduction of existing classified 
information is not derivative classification.
    (b) Members or employees applying derivative classification markings 
shall:
    (1) Observe and respect original classification decisions; and
    (2) Carry forward to any newly created documents the pertinent 
classification markings.
    (3) For information derivatively classified based on multiple 
sources, the Member or employee shall carry forward:
    (i) The date or event for declassification that corresponds to the 
longest period of classification among the sources; and
    (ii) A listing of these sources on or attached to the official file 
or record copy.
    (c) Documents classified derivatively shall bear all markings 
prescribed by 32 CFR 2001.20 through 2001.23 and shall otherwise conform 
to the requirements of 32 CFR 2001.20 through 2001.23.
    (1) Classification authority. The authority for classification shall 
be shown as follows:
    (i) ``Classified by (description of source documents or 
classification guide),'' or
    (ii) ``Classified by multiple sources,'' if a document is classified 
on the basis of more than one source document or classification guide.
    (iii) In these cases, the derivative classifier shall maintain the 
identification of each source with the file or record copy of the 
derivatively classified document. A document derivatively classified on 
the basis of a source document that is marked ``Classified by Multiple 
Sources'' shall cite the source document in its ``Classified by'' line 
rather than the term ``Multiple sources.''
    (2) Declassification and downgrading instructions. Date or events 
for automatic declassification or downgrading, or the notation 
``Originating Agency's

[[Page 107]]

Determination Required'' to indicate that the document is not to be 
declassified automatically, shall be carried forward from the source 
document, or as directed by a classification guide, and shown on 
``declassify on'' line as follows:
    ``Declassify on: (date, description of event);'' or ``Originating 
Agency's Determination Required (OADR).''

[64 FR 23548, May 3, 1999, as amended at 76 FR 10263, Feb. 24, 2011]



Sec. 503.56  General declassification and downgrading policy.

    (a) The Commission exercises declassification and downgrading 
authority in accordance with section 3.1 of Executive Order 13526, only 
over that information originally classified by the Commission under 
previous Executive Orders. Declassification and downgrading authority 
may be exercised by the Commission Chairman and the Senior Agency 
Official, and such others as the Chairman may designate. Commission 
personnel may not declassify information originally classified by other 
agencies.
    (b) The Commission does not now have original classification 
authority nor does it have in its possession any documents that it 
originally classified when it had such authority. The Commission has 
authorized the Archivist of the United States to automatically 
declassify information originally classified by the Commission and under 
its exclusive and final declassification jurisdiction at the end of 20 
years from the date of original classification.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23548, May 3, 1999; 76 
FR 10263, Feb. 24, 2011]



Sec. 503.57  Mandatory review for declassification.

    (a) Reviews and referrals in response to requests for mandatory 
declassification shall be conducted in compliance with section 3.5 of 
Executive Order 13526, 32 CFR 2001.33, and 32 CFR 2001.34.
    (b) Any individual may request a review of classified information 
and material in possession of the Commission for declassification. All 
information classified under Executive Order 13526 or a predecessor 
Order shall be subject to a review for declassification by the 
Commission, if:
    (1) The request describes the documents or material containing the 
information with sufficient specificity to enable the Commission to 
locate it with a reasonable amount of effort. Requests with insufficient 
description of the material will be returned to the requester for 
further information.
    (2) The information requested is not the subject of pending 
litigation.
    (3) The information requested has not been reviewed for 
declassification in the previous two years. If so, the FMC shall inform 
the requester of this fact and provide the requester with appeal rights 
in accordance with 32 CFR 2001.33(a)(2)(iii).
    (c) Requests shall be in writing, and shall be sent to: Office of 
the Managing Director, Attn.: Senior Agency Official, Federal Maritime 
Commission, Washington, DC 20573 or submitted via the FMC's on-line 
declassification information portal which provides an e-mail address 
through which requests can be submitted: http://www.http://www.fmc.gov/
about/web--policies--notices--and--acts.aspx.
    (d) If the request requires the provision of services by the 
Commission, fair and equitable fees may be charged pursuant to 31 U.S.C. 
9701.
    (e) Requests for mandatory declassification reviews shall be 
acknowledged by the Commission within 15 days of the date of receipt of 
such requests.
    (f) If the document was derivatively classified by the Commission or 
originally classified by another agency, the request, the document, and 
a recommendation for action shall be forwarded to the agency with the 
original classification authority. The Commission may, after 
consultation with the originating agency, inform the requester of the 
referral.
    (g) If a document is declassified in its entirety, it may be 
released to the requester, unless withholding is otherwise warranted 
under applicable law. If a document or any part of it is not 
declassified, the Senior Agency Official shall furnish the declassified 
portions to the requester unless withholding is otherwise warranted 
under applicable

[[Page 108]]

law, along with a brief statement concerning the reasons for the denial 
of the remainder, and the right to appeal that decision to the 
Commission appellate authority within 60 days.
    (h) If a declassification determination cannot be made within 45 
days, the requester shall be advised that additional time is needed to 
process the request. Final determination shall be made within one year 
from the date of receipt of the request. The Commission shall inform the 
requester in writing of the final determination and of the reasons for 
any denials. The Commission shall inform the requester in writing of his 
or her final appeal rights to the Interagency Security Classification 
Appeals Panel.
    (i) When a request has been submitted both under mandatory 
declassification review and the Freedom of Information Act (FOIA), the 
agency shall require the requester to select one process or the other. 
If the requester fails to select one process or the other, the request 
will be treated as a FOIA request unless the requested materials are 
subject only to mandatory declassification review.

[76 FR 10263, Feb. 24, 2011]



Sec. 503.58  Appeals of denials of mandatory declassification review 
requests.

    (a) Within 60 days after the receipt of denial of a request for 
mandatory declassification review, the requester may submit an appeal in 
writing to the Chairman through the Secretary, Federal Maritime 
Commission, Washington, DC 20573. The appeal shall:
    (1) Identify the document in the same manner in which it was 
identified in the original request;
    (2) Indicate the dates of the request and denial, and the expressed 
basis for the denial; and
    (3) State briefly why the document should be declassified.
    (b) The Chairman shall rule on the appeal within 60 working days of 
receiving it. If additional time is required to make a determination, 
the Chairman shall notify the requester of the additional time needed 
and provide the requester with the reason for the extension. The 
Chairman shall notify the requester in writing of the final 
determination and the reasons for any denial.
    (c) In accordance with section 5.3 of Executive Order 13526 and 32 
CFR 2001.33, within 60 days of such issuance, the requester may appeal a 
final determination of the Commission under paragraph (b) of this 
section to the Interagency Security Classification Appeals Panel. The 
appeal should be addressed to, Executive Secretary, Interagency Security 
Classification Appeals Panel, Attn: Classification Challenge Appeals, c/
o Information Security Oversight Office, National Archives and Records 
Administration, 7th and Pennsylvania Avenue, NW., Room 5W, Washington, 
DC 20408.

[76 FR 10264, Feb. 24, 2011]



Sec. 503.59  Safeguarding classified information.

    (a) All classified information shall be afforded a level of 
protection against unauthorized disclosure commensurate with its level 
of classification.
    (b) Whenever classified material is removed from a storage facility, 
such material shall not be left unattended and shall be protected by 
attaching an appropriate classified document cover sheet to each 
classified document.
    (c) Classified information being transmitted from one Commission 
office to another shall be protected with a classified document cover 
sheet and hand delivered by an appropriately cleared person to another 
appropriately cleared person.
    (d) Classified information shall be made available to a recipient 
only when the authorized holder of the classified information has 
determined that:
    (1) The prospective recipient has a valid security clearance at 
least commensurate with the level of classification of the information; 
and
    (2) The prospective recipient requires access to the information in 
order to perform or assist in a lawful and authorized governmental 
function.
    (e) The requirement in paragraph (d)(2) of this section, that access 
to classified information may be granted only to individuals who have a 
need-to-know the information, may be waived for persons who:
    (1) Are engaged in historical research projects, or

[[Page 109]]

    (2) Previously have occupied policy-making positions to which they 
were appointed by the President.
    (f) Waivers under paragraph (e) of this section may be granted when 
the Commission Senior Agency Official:
    (1) Determines in writing that access is consistent with the 
interest of national security;
    (2) Takes appropriate steps to protect classified information from 
unauthorized disclosure or compromise, and ensures that the information 
is properly safeguarded; and
    (3) Limits the access granted to former presidential appointees to 
items that the person originated, reviewed, signed, or received while 
serving as a presidential appointee.
    (g) Persons seeking access to classified information in accordance 
with paragraphs (e) and (f) of this section must agree in writing:
    (1) To be subject to a national security check;
    (2) To protect the classified information in accordance with the 
provisions of Executive Order 13526; and
    (3) Not to publish or otherwise reveal to unauthorized persons any 
classified information.
    (h) Except as authorized by the originating agency, or otherwise 
provided for by directives issued by the President, the Commission shall 
not disclose information originally classified by another agency.
    (i) Only appropriately cleared personnel may receive, transmit, and 
maintain current access and accountability records for classified 
material.
    (j) Each office which has custody of classified material shall 
maintain:
    (1) A classified document register or log containing a listing of 
all classified holdings, and
    (2) A classified document destruction register or log containing the 
title and date of all classified documents that have been destroyed.
    (k) An inventory of all documents classified higher than 
confidential shall be made at least annually and whenever there is a 
change in classified document custodians. The Senior Agency Official 
shall be notified, in writing, of the results of each inventory.
    (l) Reproduced copies of classified documents are subject to the 
same accountability and controls as the original documents.
    (m) Combinations to dial-type locks shall be changed only by persons 
having an appropriate security clearance, and shall be changed whenever 
such equipment is placed in use; whenever a person knowing the 
combination no longer requires access to the combination; whenever a 
combination has been subject to possible compromise; whenever the 
equipment is taken out of service; and at least once each year. Records 
of combinations shall be classified no lower than the highest level of 
classified information to be stored in the security equipment concerned. 
One copy of the record of each combination shall be provided to the 
Senior Agency Official.
    (n) Individuals charged with the custody of classified information 
shall conduct the necessary inspections within their areas to insure 
adherence to procedural safeguards prescribed to protect classified 
information. The Commission Senior Agency Official shall conduct 
periodic inspections to determine if the procedural safeguards 
prescribed in this subpart are in effect at all times.
    (o) Whenever classified material is to be transmitted outside the 
Commission, the custodian of the classified material shall contact the 
Commission Senior Agency Official for preparation and receipting 
instructions. If the material is to be hand carried, the Senior Agency 
Official shall ensure that the person who will carry the material has 
the appropriate security clearance, is knowledgeable of safeguarding 
requirements, and is briefed, if appropriate, concerning restrictions 
with respect to carrying classified material on commercial carriers.
    (p) Any person having access to and possession of classified 
information is responsible for protecting it from persons not authorized 
access to it, to include securing it in approved equipment or 
facilities, whenever it is not under the direct supervision of 
authorized persons.
    (q) Employees of the Commission shall be subject to appropriate 
sanctions, which may include reprimand,

[[Page 110]]

suspension without pay, removal, termination of classification 
authority, loss or denial of access to classified information, or other 
sanctions in accordance with applicable law and agency regulation, if 
they:
    (1) Knowingly, willfully, or negligently disclose to unauthorized 
persons information properly classified under Executive Order 13526 or 
predecessor orders;
    (2) Knowingly and willfully classify or continue the classification 
of information in violation of Executive Order 13526 or any implementing 
directive; or
    (3) Knowingly and willfully violate any other provision of Executive 
Order 13526 or implementing directive.
    (r) Any person who discovers or believes that a classified document 
is lost or compromised shall immediately report the circumstances to his 
or her supervisor and the Commission Senior Agency Official, who shall 
conduct an immediate inquiry into the matter.
    (s) Questions with respect to the Commission Information Security 
Program, particularly those concerning the classification, 
declassification, downgrading, and safeguarding of classified 
information, shall be directed to the Commission Senior Agency Official.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 64 
FR 23548, May 3, 1999; 76 FR 10264, Feb. 24, 2011]



   Subpart G_Access to Any Record of Identifiable Personal Information



Sec. 503.60  Definitions.

For the purpose of this subpart:
    (a) Agency means each authority of the government of the United 
States as defined in 5 U.S.C. 551(1) and shall include any executive 
department, military department, government corporation, government 
controlled corporation or other establishment in the executive branch of 
the government (including the Executive Office of the President), or any 
independent regulatory agency.
    (b) Commission means the Federal Maritime Commission.
    (c) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence to whom a record pertains.
    (d) Maintain includes maintain, collect, use, or disseminate.
    (e) Person means any person not an individual and shall include, but 
is not limited to, corporations, associations, partnerships, trustees, 
receivers, personal representatives, and public or private 
organizations.
    (f) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Federal Maritime 
Commission, including but not limited to a person's education, financial 
transactions, medical history, and criminal or employment history, and 
that contains the person's name, or the identifying number, symbol or 
other identifying particular assigned to the individual, such as a 
finger or voice print, or a photograph.
    (g) Routine use means [with respect to the disclosure of a record], 
the use of such records for a purpose which is compatible with the 
purpose for which it was collected.
    (h) Statistical record means a record in a system of records, 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, but shall not include matter pertaining to the 
Census as defined in 13 U.S.C. 8.
    (i) System of records means a group of any records under the control 
of the Commission from which information is retrieved by the name of the 
individual or by some identifying number, symbol or other identifying 
particular assigned to the individual.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.61  Conditions of disclosure.

    (a) Subject to the conditions of paragraphs (b) and (c) of this 
section, the Commission shall not disclose any record which is contained 
in a system of records, by any means of communication, to any person or 
other agency who is not an individual to whom the record pertains.
    (b) Upon written request or with prior written consent of the 
individual to whom the record pertains, the Commission may disclose any 
such record to any person or other agency.

[[Page 111]]

    (c) In the absence of a written consent from the individual to whom 
the record pertains, the Commission may disclose any such record, 
provided such disclosure is:
    (1) To those officers and employees of the Commission who have a 
need for the record in the performance of their duties;
    (2) Required under the Freedom of Information Act (5 U.S.C 552);
    (3) For a routine use;
    (4) To the Bureau of Census for purposes of planning or carrying out 
a census or survey or related activity under the provisions of title 13 
U.S.C.;
    (5) To a recipient who has provided the Commission with adequate 
advance written assurance that the record will be used solely as a 
statistical research or reporting record, and the record is to be 
transferred in a form that is not individually identifiable;
    (6) To the National Archives of the United States, as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States government, or for evaluation by the 
Administrator of General Services or his designee to determine whether 
the record has such value;--
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity authorized by law, provided 
the head of the agency or instrumentality has made a prior written 
request to the Secretary of the Commission specifying the particular 
record and the law enforcement activity for which it is sought;
    (8) To either House of Congress, and to the extent of a matter 
within its jurisdiction, any committee, subcommittee, or joint committee 
of Congress;
    (9) To the Comptroller General, or any authorized representative, 
thereof, in the course of the performance of the duties of the GAO; or
    (10) Under an order of a court of competent jurisdiction.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.62  Accounting of disclosures.

    (a) The Secretary shall make an accounting of each disclosure of any 
record contained in a system of records in accordance with 5 U.S.C. 
552a(c)(1) and 552a(c)(2).
    (b) Except for a disclosure made under Sec. 503.61(c)(7), the 
Secretary shall make the accounting described in paragraph (a) of this 
section available to any individual upon written request made in 
accordance with Sec. 503.63(b) or Sec. 503.63(c).
    (c) The Secretary shall make reasonable efforts to notify the 
individual when any record which pertains to such individual is 
disclosed to any person under compulsory legal process, when such 
process becomes a matter of public record.



Sec. 503.63  Request for information.

    (a) Upon request, in person or by mail, made in accordance with the 
provisions of paragraph (b) or (c) of this section, any individual shall 
be informed whether or not any Commission system of records contains a 
record pertaining to him or her.
    (b) Any individual requesting such information in person shall 
personally appear at the Office of the Secretary, Federal Maritime 
Commission, 800 North Capitol Street, NW, Washington, DC 20573 and 
shall:
    (1) Provide information sufficient, in the opinion of the Secretary, 
to identify the record, e.g., the individual's own name, date of birth, 
place of birth, etc.;
    (2) Provide identification acceptable to the Secretary to verify the 
individual's identity, e.g., driver's license, employee identification 
card or medicare card;
    (3) Complete and sign the appropriate form provided by the 
Secretary.
    (c) Any individual requesting such information by mail shall address 
such request to the Secretary, Federal Maritime Commission, 800 North 
Capitol Street, NW, Washington, DC 20573 and shall include in such 
request the following:
    (1) Information sufficient in the opinion of the Secretary to 
identify the record, e.g., the individual's own name, date of birth, 
place of birth, etc.;

[[Page 112]]

    (2) A signed notarized statement to verify his or her identity.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 63 
FR 50535, Sept. 22, 1998]



Sec. 503.64  Commission procedure on request for information.

    Upon request for information made in accordance with Sec. 503.63, 
the Secretary or his or her delegate shall, within 10 days (excluding 
Saturdays, Sundays, and legal public holidays), furnish in writing to 
the requesting party notice of the existence or nonexistence of any 
records described in such request.



Sec. 503.65  Request for access to records.

    (a) General. Upon request by any individual made in accordance with 
the procedures set forth in paragraph (b) of this section, such 
individual shall be granted access to any record pertaining to him or 
her which is contained in a Commission system of records. However, 
nothing in this section shall allow an individual access to any 
information compiled by the Commission in reasonable anticipation of a 
civil or criminal action or proceeding.
    (b) Procedures for requests for access to records. Any individual 
may request access to a record pertaining to him or her in person or by 
mail in accordance with paragraphs (b) (1) and (2) of this section:
    (1) Any individual making such request in person shall do so at the 
Office of the Secretary, Federal Maritime Commission, 800 North Capitol 
Street, NW, Washington, DC 20573 and shall:
    (i) Provide identification acceptable to the Secretary to verify the 
individual's identity, e.g., driver's license, employee identification 
card, or medicare card; and
    (ii) Complete and sign the appropriate form provided by the 
Secretary.
    (2) Any individual making a request for access to records by mail 
shall address such request to the Secretary, Federal Maritime 
Commission, 800 North Capitol Street, NW, Washington, DC 20573 and shall 
include therein a signed, notarized statement to verify his or her 
identity.
    (3) Any individual requesting access to records under this section 
in person may be accompanied by a person of his or her own choosing, 
while reviewing the record requested. If an individual elects to be so 
accompanied, he or she shall notify the Secretary of such election in 
the request and shall provide a written statement authorizing disclosure 
of the record in the presence of the accompanying person. Failure to so 
notify the Secretary in a request for access shall be deemed to be a 
decision by the individual not to be accompanied.
    (c) Commission determination of requests for access. (1) Upon 
request made in accordance with this section, the Secretary or his or 
her delegate shall:
    (i) Determine whether or not such request shall be granted;
    (ii) Make such determination and provide notification within 10 days 
(excluding Saturdays, Sundays, and legal public holidays) after receipt 
of such request, and, if such request is granted shall:
    (iii) Notify the individual that fees for reproducing copies will be 
made in accordance with Sec. 503.69.
    (2) If access to a record is denied because such information has 
been compiled by the Commission in reasonable anticipation of a civil or 
criminal action or proceeding, or for any other reason, the Secretary 
shall notify the individual of such determination and his or her right 
to judicial appeal under 5 U.S.C. 552a(g).
    (d) Manner of providing access. (1) If access is granted, the 
individual making such request shall notify the Secretary whether the 
records requested are to be copied and mailed to the individual.
    (2) If records are to be made available for personal inspection, the 
individual shall arrange with the Secretary a mutually agreeable time 
and place for inspection of the record.
    (3) Fees for reproducing and mailing copies of records will be made 
in accordance with Sec. 503.69.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 63 
FR 50535, Sept. 22, 1998]



Sec. 503.66  Amendment of a record.

    (a) General. Any individual may request amendment of a record 
pertaining to him or her according to the

[[Page 113]]

procedure in paragraph (b) of this section.
    (b) Procedures for requesting amendment of a record. After 
inspection of a record pertaining to him or her, an individual may file 
with the Secretary a request, in person or by mail, for amendment of a 
record. Such request shall specify the particular portions of the record 
to be amended, the desired amendments and the reasons therefor.
    (c) Commission procedures on request for amendment of a record. (1) 
Not later than ten (10) days (excluding Saturdays, Sundays, and legal 
public holidays) after the date of receipt of a request made in 
accordance with this section to amend a record in whole or in part, the 
Secretary or his or her delegate shall:
    (i) Make any correction of any portion of the record which the 
individual believes is not accurate, relevant, timely or complete and 
thereafter inform the individual of such correction; or
    (ii) Inform the individual, by certified mail, return receipt 
requested, of refusal to amend the record, setting out the reasons 
therefor, and notify the individual of his or her right to appeal that 
determination to the Chairman of the Commission under Sec. 503.67.
    (2) The Secretary shall inform any person or other agency to whom a 
record has been disclosed of any correction or notation of dispute made 
by the Secretary with respect to such records, in accordance with 5 
U.S.C. 552a(c)(4) referring to amendment of a record, if an accounting 
of such disclosure has been made.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.67  Appeals from denial of request for amendment of a record.

    (a) General. An individual whose request for amendment of a record 
pertaining to him or her is denied, may further request a review of such 
determination in accordance with paragraph (b) of this section.
    (b) Procedure for appeal. Not later than thirty (30) days (excluding 
Saturdays, Sundays, and legal public holidays) following receipt of 
notification of refusal to amend, an individual may file an appeal to 
amend the record. Such appeal shall:
    (1) Be addressed to the Chairman, Federal Maritime Commission, 800 
North Capitol Street, NW, Washington, DC 20573; and
    (2) Specify the reasons for which the refusal to amend is 
challenged.
    (c) Commission procedure on appeal. (1) Upon appeal from a denial to 
amend a record, the Chairman of the Commission or the officer designated 
by the Chairman to act in his or her absence, shall make a determination 
whether or not to amend the record and shall notify the individual of 
that determination by certified mail, return receipt requested, not 
later than thirty (30) days (excluding Saturdays, Sundays and legal 
public holidays) after receipt of such appeal, unless extended pursuant 
to paragraph (d) of this section.
    (2) The Chairman shall also notify the individual of the provisions 
of 5 U.S.C. 552a(g)(1)(A) regarding judicial review of the Chairman's 
determination.
    (3) If, on appeal, the refusal to amend the record is upheld, the 
Commission shall permit the individual to file a statement setting forth 
the reasons for disagreement with the Commission's determination.
    (d) The Chairman, or his or her delegate in his or her absence, may 
extend up to thirty (30) days the time period prescribed in paragraph 
(c)(1) of this section within which to make a determination on an appeal 
from refusal to amend a record for the reasons that a fair and equitable 
review cannot be completed within the prescribed time period.

[49 FR 44401, Nov. 6, 1984, as amended at 63 FR 50536, Sept. 22, 1998]



Sec. 503.68  Exemptions.

    (a) The system of records designated FMC-25 Inspector General File 
is exempt from the provisions of 5 U.S.C. 552a except subsections (b), 
(c) (1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and 
(11) and (i) to the extent it contains information meeting the criteria 
of 5 U.S.C. 552a(j)(2) pertaining to the enforcement of criminal laws. 
Exemption is appropriate to avoid compromise of ongoing investigations, 
disclosure of the identity of confidential

[[Page 114]]

sources and unwarranted invasions of personal privacy of third parties.
    (b) The following systems of records are exempt from the provisions 
of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f), 
which otherwise require the Commission, among other things, to provide 
the individual named in the records an accounting of disclosures and 
access to and opportunity to amend the records. The scope of the 
exemptions and the reasons therefor are described for each particular 
system of records.
    (1) FMC-1 Personnel Security File. All information about individuals 
that meets the criteria of 5 U.S.C. 552a(k)(5), regarding suitability, 
eligibility or qualifications for Federal civilian employment or for 
access to classified information, to the extent that disclosure would 
reveal the identity of a source who furnished information to the 
Commission under a promise of confidentiality. Exemption is required to 
honor promises of confidentiality.
    (2) FMC-7 Licensed Ocean Freight Forwarders File. All information 
that meets the criteria of 5 U.S.C. 552a(k)(2) regarding investigatory 
materials compiled for law enforcement purposes. Exemption is 
appropriate to avoid compromise of ongoing investigations, disclosure of 
the identity of confidential sources and unwarranted invasions of 
personal privacy of third parties.
    (3) FMC-22 Investigatory Files. All information that meets the 
criteria of 5 U.S.C. 552a(k)(2) regarding investigatory material 
compiled for law enforcement purposes. Exemption is appropriate to avoid 
compromise of ongoing investigations, disclosure of the identity of 
confidential sources and unwarranted invasions of personal privacy of 
third parties.
    (4) FMC-24 Informal Inquiries and Complaint Files. All information 
that meets the criteria of 5 U.S.C. 552a(k)(2) regarding investigatory 
material compiled for law enforcement purposes. Exemption is appropriate 
to avoid compromise of ongoing investigations, disclosure of the 
identity of confidential sources and unwarranted invasion of personal 
privacy of third parties.
    (5) FMC-25 Inspector General File. (i) All information that meets 
the criteria of 5 U.S.C. 552a(k)(2) regarding investigatory material 
compiled for law enforcement purposes. Exemption is appropriate to avoid 
compromise of ongoing investigations, disclosure of the identity of 
confidential sources and unwarranted invasions of personal privacy of 
third parties.
    (ii) All information about individuals that meets the criteria of 5 
U.S.C. 552a(k)(5), regarding suitability, eligibility or qualifications 
for Federal civilian employment or for access to classified information, 
to the extent the disclosure would reveal the identity of a source who 
furnished information to the Commission under the promises of 
confidentiality. Exemption is required to honor promises of 
confidentiality.
    (6) FMC-26 Administrative Grievance File. (i) All information that 
meets the criteria of 5 U.S.C. 552a(k)(2) regarding investigatory 
material compiled for law enforcement purposes, Exemption is appropriate 
to avoid compromise of ongoing investigations, disclosure of the 
identity of confidential sources and unwarranted invasions of personal 
privacy of third parties.
    (ii) All information about individuals that meets the criteria of 5 
U.S.C. 552a(k)(5), regarding suitability, eligibility or qualification 
for Federal civilian employment or for access to classified information, 
to the extent that disclosure would reveal the identity of a source who 
furnished information to the Commission under a promise of 
confidentiality. Exemption is required to honor promises of 
confidentiality.

[59 FR 15636, Apr. 4, 1994]



Sec. 503.69  Fees.

    (a) General. The following Commission services are available, with 
respect to requests made under the provisions of this subpart, for which 
fees will be charged as provided in paragraphs (b) and (c) of this 
section:
    (1) Copying records/documents.
    (2) Certification of copies of documents.
    (b) Fees for services. The fees set forth below provide for 
documents to be mailed with ordinary first-class postage prepaid. If a 
copy is to be transmitted by registered, certified, air, or special 
delivery mail, postage therefor will be added to the basic fee. Also, if

[[Page 115]]

special handling or packaging is required, costs thereof will be added 
to the basic fee.
    (1) The copying of records and documents will be available at the 
rate of five cents per page (one side), limited to size 8\1/
4\ x 14 or smaller.
    (2) The certification and validation (with Federal Maritime 
Commission seal) of documents filed with or issued by the Commission 
will be available at $94 for each certification.
    (c) Payment of fees and charges. The fees charged for special 
services may be paid by check, draft, or postal money order, payable to 
the Federal Maritime Commission.

[49 FR 44401, Nov. 6, 1984, as amended at 59 FR 59171, Nov. 16, 1994; 63 
FR 50536, Sept. 22, 1998; 67 FR 39860, June 11, 2002; 70 FR 10330, Mar. 
3, 2005]



Subpart H_Public Observation of Federal Maritime Commission Meetings and 
     Public Access to Information Pertaining to Commission Meetings



Sec. 503.70  Policy.

    It is the policy of the Federal Maritime Commission, under the 
Provisions of the ``Government in the Sunshine Act'' (5 U.S.C. 552b, 
Sept. 13, 1976) to entitle the public to the fullest practicable 
information regarding the decisional processes of the Commission. The 
provisions of this subpart set forth the procedural requirements 
designed to provide the public with such information while continuing to 
protect the rights of individuals and to maintain the capabilities of 
the Commission in carrying out its responsibilities under the shipping 
statutes administered by this Commission.



Sec. 503.71  Definitions.

    The following definitions apply for purposes of this subpart:
    (a) Agency means the Federal Maritime Commission;
    (b) Information pertaining to a meeting means, but is not limited to 
the following: the record of any agency vote taken under the provisions 
of this subpart, and the record of the vote of each member; a full 
written explanation of any agency action to close any portion of any 
meeting under this subpart; lists of persons expected to attend any 
meeting of the agency and their affiliation; public announcement by the 
agency under this subpart of the time, place, and subject matter of any 
meeting or portion of any meeting; announcement of whether any meeting 
or portion of any meeting shall be open to public observation or be 
closed; any announcement of any change regarding any meeting or portion 
of any meeting; and the name and telephone number of the Secretary of 
the agency who shall be designated by the agency to respond to requests 
for information concerning any meeting or portion of any meeting;
    (c) Meeting means the deliberations of a majority of the members 
serving on the agency which determine or result in the joint conduct of 
or disposition of official agency business, but does not include:
    (1) Individual member's consideration of official agency business 
circulated to the members in writing for disposition on notation;
    (2) Deliberations by the agency in determining whether or not to 
close a portion or portions of a meeting or series of meetings as 
provided in Sec. Sec. 503.74 and 503.75;
    (3) Deliberations by the agency in determining whether or not to 
withhold from disclosure information pertaining to a portion or portions 
of a meeting or series of meetings as provided in Sec. 503.80; or
    (4) Deliberations pertaining to any change in any meeting or to 
changes in the public announcement of such a meeting as provided in 
Sec. 503.83;
    (d) Member means each individual Commissioner of the agency;
    (e) Person means any individual, partnership, corporation, 
association, or public or private organization, other than an agency as 
defined in 5 U.S.C. 551(1));
    (f) Series f meetings means more than one meeting involving the same 
particular matters and scheduled to be held no more than thirty (30) 
days after the initial meeting in such series.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999]

[[Page 116]]



Sec. 503.72  General rule--meetings.

    (a) Except as otherwise provided in Sec. Sec. 503.73, 503.74, 
503.75 and 503.76, every portion of every meeting and every portion of a 
series of meetings of the agency shall be open to public observation.
    (b) The opening of a portion or portions of a meeting or a portion 
or portions of a series of meetings to public observation shall not be 
construed to include any participation by the public in any manner in 
the meeting. Such an attempted participation or participation shall be 
cause for removal of any person so engaged at the discretion of the 
presiding member of the agency.



Sec. 503.73  Exceptions--meetings.

    Except in a case where the agency finds that the public interest 
requires otherwise, the provisions of Sec. 503.72(a) shall not apply to 
any portion or portions of an agency meeting or portion or portions of a 
series of meetings where the agency determined under the provisions of 
Sec. 503.74 or Sec. 503.75 that such portion or portions of such 
meeting or series of meetings is likely to:
    (a) Disclose matters that are (1) specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interests of national defense or foreign policy and (2) in fact properly 
classified pursuant to such Executive order;
    (b) Relate solely to the internal personnel rules and practices of 
any agency;
    (c) Disclose matters specifically exempted from disclosure by any 
statute other than 5 U.S.C. 552 (FOIA), provided that such statute (1) 
requires that the matter be withheld from the public in such a manner as 
to leave no discretion on the issue, or (2) establishes particular 
criteria for withholding or refers to particular types of matters to be 
withheld;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime, or formally censuring 
any person;
    (f) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which, if written, would be contained in such 
records, but only to the extent that the production of such records or 
information would
    (1) Interfere with enforcement proceedings,
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (3) Constitute an unwarranted invasion of personal privacy,
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (5) Disclose investigative techniques and procedures, or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions;
    (i) Disclose information, the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed agency 
action unless the agency has already disclosed to the public the content 
or nature of its proposed action, or where the agency is required by law 
to make such disclosure on its own initiative prior to taking final 
agency action on such proposal; or
    (j) Specifically concern the agency's issuance of a subpena, or the 
agency's participation in a civil action or proceeding, an action in a 
foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 
or otherwise involving a determination on the record after opportunity 
for a hearing.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]

[[Page 117]]



Sec. 503.74  Procedures for closing a portion or portions of a meeting 
or a portion or portions of a series of meetings on agency initiated 

requests.

    (a) Any member of the agency, the Managing Director or the General 
Counsel of the agency may request that any portion or portions of a 
series of meetings be closed to public observation for any of the 
reasons provided in Sec. 503.73 by submitting such request in writing 
to the Secretary of the agency in sufficient time to allow the Secretary 
to schedule a timely vote on the request pursuant to paragraph (b) of 
this section.
    (b) Upon receipt of any request made under paragraph (a) of this 
section, the Secretary of the agency shall schedule a time at which the 
members of the agency shall vote upon the request, which vote shall take 
place not later then eight (8) days prior to the scheduled meeting of 
the agency.
    (c) At the time the Secretary schedules a time for an agency vote as 
described in paragraph (b) of this section, he or she shall forward the 
request to the General Counsel of the agency who shall act upon such 
request as provided in Sec. 503.77.
    (d) At the time schedule d by the Secretary as provided in paragraph 
(b) of this section, the members of the agency, upon consideration of 
the request submitted under paragraph (a) of this section and 
consideration of the certified opinion of the General Counsel of the 
agency provided to the members under Sec. 503.77, shall vote upon that 
request. That vote shall determine whether or not any portion or 
portions of a meeting may be closed to public observation for any of the 
reasons provided in Sec. 503.73, and whether or not the public interest 
requires that the portion or portions of the meeting or meetings remain 
open, notwithstanding the applicability of any of the reasons provided 
in Sec. 503.73 permitting the closing of any meeting to public 
observation.
    (e) In the case of a vote on a request under this section to close 
to public observation a portion or portions of a meeting, no such 
portion or portions of any meeting may be closed unless, by a vote on 
the issues described in paragraph (d) of this section, a majority of the 
entire membership of the agency shall vote to close such portion or 
portions of a meeting by recorded vote.
    (f) In the case of a vote on a request under this section to close 
to public observation a portion or portions of a series of meetings as 
defined in Sec. 503.71, no such portion or portions of a series of 
meetings may be closed unless, by a vote on the issues described in 
paragraph (d) of this section, a majority of the entire membership of 
the agency shall vote to close such portion or portions of a series of 
meetings. A determination to close to public observation a portion or 
portions of a series of meetings may be accomplished by a single vote on 
each of the issues described in paragraph (d) of this section, provided 
that the vote of each member of the agency shall be recorded and the 
vote shall be cast by each member and not by proxy vote.

[49 FR 44401, Nov. 6, 1984, as amended at 55 FR 38330, Sept. 18, 1990]



Sec. 503.75  Procedures for closing a portion of a meeting on request
initiated by an interested person.

    (a) Any person as defined in Sec. 503.71, whose interests may be 
directly affected by a portion of a meeting of the agency, may request 
that the agency close that portion of a meeting for the reason that 
matters in deliberation at that portion of the meeting are such that 
public disclosure of that portion of a meeting is likely to:
    (1) Involve accusing any person of a crime, or formally censuring 
any person;
    (2) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy; or
    (3) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would:
    (i) Interfere with enforcement proceedings;
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (iii) Constitute an unwarranted invasion of personal privacy;

[[Page 118]]

    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (v) Disclose investigative techniques and procedures; or
    (vi) Endanger the life or physical safety of law enforcement 
personnel.
    (b) Any person described in paragraph (a) of this section who 
submits a request that a portion of a meeting be closed shall submit an 
original and 15 copies of that request to the Secretary, Federal 
Maritime Commission, Washington, DC 20573, and shall state with 
particularity that portion of a meeting sought to be closed and the 
reasons therefor as described in paragraph (a) of this section.
    (c) Upon receipt of any request made under paragraphs (a) and (b) of 
this section, the Secretary of the agency shall:
    (1) Furnish a copy of the request to each member of the agency; and
    (2) Furnish a copy of the request to the General Counsel of the 
agency.
    (d) Upon receipt of a request made under paragraphs (a) and (b) of 
this section, any member of the agency may request agency action upon 
the request to close a portion of a meeting by notifying the Secretary 
of the agency of that request for agency action.
    (e) Upon receipt of a request for agency action under paragraph (d) 
of this section, the Secretary of the agency shall schedule a time for 
an agency vote upon the request of the person whose interests may be 
directly affected by a portion of a meeting, which vote shall take place 
prior to the scheduled meeting of the agency.
    (f) At the time the Secretary receives a request for agency action 
and schedules a time for an agency vote as described in paragraph (e) of 
this section, the request of the person whose interests may be directly 
affected by a portion of a meeting shall be forwarded to the General 
Counsel of the agency who shall act upon such request as provided in 
Sec. 503.77.
    (g) At the time scheduled by the Secretary, as provided in paragraph 
(e) of this section, the members of the agency, upon consideration of 
the request of the person whose interests may be directly affected by a 
portion of a meeting submitted under paragraphs (a) and (b) of this 
section, and consideration of the certified opinion of the General 
Counsel of the agency provided to the members under Sec. 503.77, shall 
vote upon that request. That vote shall determine whether or not any 
portion or portions of a meeting or portion or portions of a series of 
meetings may be closed to public observation for any of the reasons 
provided in paragraph (a) of this section, and whether or not the public 
interest requires that the portion or portions of the meeting or 
meetings remain open, notwithstanding the applicability of any of the 
reasons provided in paragraph (a) of this section permitting the closing 
of any portion of any meeting to public observation.
    (h) In the case of a vote on a request under this section to close 
to public observation a portion of a meeting, no such portion of a 
meeting may be closed unless, by a vote on the issues described in 
paragraph (g) of this section, a majority of the entire membership of 
the agency shall vote to close such portion of a meeting by a recorded 
vote.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.76  Effect of vote to close a portion or portions of a meeting
or series of meetings.

    (a) Where the agency votes as provided in Sec. 503.74 or Sec. 
503.75, to close to public observation a portion or portions of a 
meeting or a portion or portions of a series of meetings, the portion or 
portions of a meeting or the portion or portions of a series of meetings 
shall be closed.
    (b) Except as otherwise provided in Sec. Sec. 503.80, 503.81 and 
503.82, not later than the day following the day on which a vote is 
taken under Sec. 503.74 or Sec. 503.75, by which it is determined to 
close a portion or portions of a meeting or a portion or portions of a 
series of meetings to public observation, the Secretary shall make 
available to the public:

[[Page 119]]

    (1) A written copy of the recorded vote reflecting the vote of each 
member of the agency;
    (2) A full written explanation of the agency action closing that 
portion or those portions to public observation; and
    (3) A list of the names and affiliations of all persons expected to 
attend the portion or portions of the meeting or the portion or portions 
of a series of meetings.
    (c) Except as otherwise provided in Sec. Sec. 503.80, 503.81 and 
503.82, not later than the day following the day on which a vote is 
taken under Sec. 503.74, or Sec. 503.75, by which it is determined 
that the portion or portions of a meeting or the portion or portions of 
a series of meetings shall remain open to public observation, the 
Secretary shall make available to the public a written copy of the 
recorded vote reflecting the vote of each member of the agency.



Sec. 503.77  Responsibilities of the General Counsel of the agency upon
a request to close any portion of any meeting.

    (a) Upon any request that the agency close a portion or portions of 
any meeting or any portion or portions of any series of meetings under 
the provisions of Sec. Sec. 503.74 and 503.75, the General Counsel of 
the agency shall certify in writing to the agency, prior to an agency 
vote on that request, whether or not in his or her opinion the closing 
of any such portion or portions of a meeting or portion or portions of a 
series of meetings is proper under the provisions of this subpart and 
the terms of the Government in the Sunshine Act (5 U.S.C. 552b). If, in 
the opinion of the General Counsel, the closing of a portion or portions 
of a meeting or portion or portions of a series of meetings is proper 
under the provisions of this subpart and the terms of the Government in 
the Sunshine Act (5 U.S.C. 552b), his or her certification of that 
opinion shall cite each applicable, particular, exemptive provision of 
that Act and provision of this subpart.
    (b) A copy of the certification of the General Counsel as described 
in paragraph (a) of this section, together with a statement of the 
officer presiding over the portion or portions of any meeting or the 
portion or portions of a series of meetings setting forth the time and 
place of the relevant meeting or meetings, and the persons present, 
shall be maintained by the Secretary for public inspection.



Sec. 503.78  General rule--information pertaining to meeting.

    (a) As defined in Sec. 503.71, all information pertaining to a 
portion or portions of a meeting or portion or portions of a series of 
meetings of the agency shall be disclosed to the public unless excepted 
from such disclosure under Sec. Sec. 503.79, 503.80 and 503.81.
    (b) All inquiries as to the status of pending matters which were 
considered by the Commission in closed session should be directed to the 
Secretary of the Commission. Commission personnel who attend closed 
meetings of the Commission are prohibited from disclosing anything that 
occurs during those meetings. An employee's failure to respect the 
confidentiality of closed meetings constitutes a violation of 
Commission's General Standards of Conduct. The Commission can, of 
course, determine to make public the events or decisions occurring in a 
closed meeting, such information to be disseminated by the Office of the 
Secretary. An inquiry to the Office of the Secretary as to whether any 
information has been made public is not, therefore, improper. However, a 
request of or attempt to persuade a Commission employee to divulge the 
contents of a closed meeting constitutes a lack of proper professional 
conduct inappropriate to a person practicing before this agency, and 
requires that the employee file a report of such event so that a 
determination can be made whether disciplinary action should be 
initiated pursuant to Sec. 502.30 of this chapter.



Sec. 503.79  Exceptions--information pertaining to meeting.

    Except in a case where the agency finds that the public interest 
requires otherwise, information pertaining to a portion or portions of a 
meeting or portion or portions of a series of meetings need not be 
disclosed by the agency if

[[Page 120]]

the agency determines, under the provisions of Sec. Sec. 503.80 and 
503.81 that disclosure of that information is likely to disclose matters 
which are:
    (a) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interests of national defense 
or foreign policy and in fact properly classified pursuant to such 
Executive order;
    (b) Related solely to the internal personnel rules and practices of 
an agency;
    (c) Specifically exempted from disclosure by any statute other than 
5 U.S.C. 552 (FOIA), provided that such statute (1) requires that the 
matters be withheld from the public in such a manner as to leave no 
discretion on the issue, or (2) establishes particular criteria for 
withholding or refers to particular types of matters to be withheld;
    (d) Trade secrets and commercial or financial information, obtained 
from a person and privileged or confidential;
    (e) Involved with accusing any person of a crime, or formally 
censuring any person;
    (f) Of a personal nature, where disclosure would constitute a 
clearly unwarranted invasion of personal privacy;
    (g) Investigatory records compiled for law enforcement purposes, or 
information which if written would be contained in such records, but 
only to the extent that the production of such record or information 
would
    (1) Interfere with enforcement proceedings,
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (3) Constitute an unwarranted invasion of personal privacy,
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (5) Disclose investigative techniques and procedures, or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Contained in or related to examination, operation, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions;
    (i) Information, the premature disclosure of which would be likely 
to significantly frustrate implementation of a proposed agency action, 
unless the agency has already disclosed to the public the content or 
nature of its proposed action, or where the agency is required by law to 
make such disclosure on its own initiative prior to taking final agency 
action on such proposal; or
    (j) Specifically concerned with the agency's issuance of a subpena, 
the agency's participation in a civil action or proceeding, an action in 
a foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 
or otherwise involving a determination on the record after opportunity 
for a hearing.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.80  Procedures for withholding information pertaining to
meeting.

    (a) Any member of the agency, or the General Counsel of the agency 
may request that information pertaining to a portion or portions of a 
meeting or to a portion or portions of a series of meetings be withheld 
from public disclosure for any of the reasons set forth in Sec. 503.79 
by submitting such request in writing to the Secretary not later than 
two (2) weeks prior to the commencement of the first meeting in a series 
of meetings.
    (b) Upon receipt of any request made under paragraph (a) of this 
section, the Secretary shall schedule a time at which the members of the 
agency shall vote upon the request, which vote shall take place not 
later than eight (8) days prior to the scheduled meeting of the agency.
    (c) At the time scheduled by the Secretary in paragraph (b) of this 
section, the Members of the agency, upon consideration of the request 
submitted under paragraph (a) of this section, shall vote upon that 
request. That vote shall determine whether or not information pertaining 
to a meeting may be

[[Page 121]]

withheld from public disclosure for any of the reasons provided in Sec. 
503.79, and whether or not the public interest requires that the 
information be disclosed notwithstanding the applicability of the 
reasons provided in Sec. 503.79 permitting the withholding from public 
disclosure of the information pertaining to a meeting.
    (d) In the case of a vote on a request under this section to 
withhold from public disclosure information pertaining to a portion or 
portions of a meeting, no such information shall be withheld from public 
disclosure unless, by a vote on the issues described in paragraph (c) of 
this section, a majority of the entire membership of the agency shall 
vote to withhold such information by recorded vote.
    (e) In the case of a vote on a request under this section to 
withhold information pertaining to a portion or portions of a series of 
meetings, no such information shall be withheld unless, by a vote on the 
issues described in paragraph (c) of this section, a majority of the 
entire membership of the agency shall vote to withhold such information. 
A determination to withhold information pertaining to a portion or 
portions of a series of meetings from public disclosure may be 
accomplished by a single vote on the issues described in paragraph (c) 
of this section, provided that the vote of each member of the agency 
shall be recorded and the vote shall be cast by each member and not by 
proxy vote.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.81  Effect of vote to withhold information pertaining to 
meeting.

    (a) Where the agency votes as provided in Sec. 503.80 to withhold 
from public disclosure information pertaining to a portion or portions 
of a meeting or portion or portions of a series of meetings, such 
information shall be excepted from the requirements of Sec. Sec. 
503.78, 503.82 and 503.83.
    (b) Where the agency votes as provided in Sec. 503.80 to permit 
public disclosure of information pertaining to a portion of portions of 
a meeting or portion or portions of a series of meetings, such 
information shall be disclosed to the public as required by Sec. Sec. 
503.78, 503.82 and 503.83.
    (c) Not later than the day following the date on which a vote is 
taken under Sec. 503.80, by which the information pertaining to a 
meeting is determined to be disclosed, the Secretary shall make 
available to the public a written copy of such vote reflecting the vote 
of each member of the agency on the question.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.82  Public announcement of agency meeting.

    (a) Except as provided in Sec. Sec. 503.80 and 503.81 regarding a 
determination to withhold from public disclosure any information 
pertaining to a portion or portions of a meeting or portion or portions 
of a series of meetings, or as otherwise provided in paragraph (c) of 
this section, the Secretary of the agency shall make public announcement 
of each meeting of the agency.
    (b) Except as otherwise provided in this section, public 
announcement of each meeting of the agency shall be accomplished not 
later than one week prior to commencement of a meeting or the 
commencement of the first meeting in a series of meetings, and shall 
disclose:
    (1) The time of the meeting;
    (2) The place of the meeting;
    (3) The subject matter of each portion of each meeting or series of 
meetings;
    (4) Whether any portion or portions of a meeting or portion or 
portions of any series of meetings shall be open or closed to public 
observation; and
    (5) The name and telephone number of the Secretary of the agency who 
shall respond to requests for information about a meeting.
    (c) The announcement described in paragraphs (a) and (b) of this 
section may be accomplished less than one week prior to the commencement 
of any meeting or series of meetings, provided the agency determines by 
recorded vote that the agency business requires that any such meeting or 
series of meetings be held at an earlier date. In the event of such a 
determination by the agency, public announcement as described in 
paragraph (b) of

[[Page 122]]

this section shall be accomplished at the earliest practicable time.
    (d) Immediately following any public announcement accomplished under 
the provisions of this section, the Secretary of the agency shall submit 
a notice for publication in the Federal Register disclosing:
    (1) The time of the meeting;
    (2) The place of the meeting;
    (3) The subject matter of each portion of each meeting or series of 
meetings;
    (4) Whether any portion or portions of a meeting or portion or 
portions of any series of meetings is open or closed to public 
observation; and
    (5) The name and telephone number of the Secretary of the agency who 
shall respond to requests for information about any meeting.
    (e) No comments or further information relating to a particular item 
scheduled for an agency meeting will be accepted by the Secretary for 
consideration subsequent to public announcement of such meeting; except 
that the Commission, on its own initiative, or pursuant to a written 
request, may in its discretion, permit a departure from this limitation 
for exceptional circumstances.

[49 FR 44401, Nov. 6, 1984, as amended at 52 FR 27002, July 17, 1987]



Sec. 503.83  Public announcement of changes in meeting.

    (a) Except as provided in Sec. Sec. 503.80 and 503.81, under the 
provisions of paragraphs (b) and (c) of this section, the time or place 
of a meeting or series of meetings may be changed by the agency 
following accomplishment of the announcement and notice required by 
Sec. 503.82, provided the Secretary of the agency shall publicly 
announce such change at the earliest practicable time.
    (b) The subject matter of a portion or portions of a meeting or a 
portion or portions of a series of meetings, the time and place of such 
meeting, and the determination that the portion or portions of a series 
of meetings shall be open or closed to public observation may be changed 
following accomplishment of the announcement required by Sec. 503.82, 
provided:
    (1) The agency, by recorded vote of the majority of the entire 
membership of the agency, determines that agency business so requires 
and that no earlier announcement of the change was possible; and
    (2) The Secretary of the agency publicly announces, at the earliest 
practicable time, the change made and the vote of each member upon such 
change.
    (c) Immediately following any public announcement of any change 
accomplished under the provisions of this section, the Secretary of the 
agency shall submit a notice for publication in the Federal Register 
disclosing:
    (1) The time of the meeting;
    (2) The place of the meeting;
    (3) The subject matter of each portion of each meeting or series of 
meetings;
    (4) Whether any portion or portions of any meeting or any portion or 
portions of any series of meetings is open or closed to public 
observation;
    (5) Any change in paragraphs (c) (1), (c) (2), (c) (3), or (c) (4) 
of this section; and
    (6) The name and telephone number of the Secretary of the agency who 
shall respond to requests for information about any meeting.



Sec. 503.84  [Reserved]



Sec. 503.85  Agency recordkeeping requirements.

    (a) In the case of any portion or portions of a meeting or portion 
or portions of a series of meetings determined by the agency to be 
closed to public observation under the provisions of this subpart, the 
following records shall be maintained by the Secretary of the agency:
    (1) The certification of the General Counsel of the agency required 
by Sec. 503.77;
    (2) A statement from the officer presiding over the portion or 
portions of the meeting or portion or portions of a series of meetings 
setting forth the time and place of the portion or portions of the 
meeting or portion or portions of the series of meetings, the persons 
present at those times; and
    (3) Except as provided in paragraph (b) of this section, a complete 
transcript or electronic recording fully recording the proceedings at 
each portion of each meeting closed to public observation.

[[Page 123]]

    (b) In case the agency determines to close to public observation any 
portion or portions of any meeting or portion or portions of any series 
of meetings because public observation of such portion or portions of 
any meeting is likely to specifically concern the agency's issuance of a 
subpena, or the agency's participation in a civil action or proceeding, 
an action in a foreign court or international tribunal, or an 
arbitration, or the initiation, conduct, or disposition by the agency of 
a particular case of formal agency adjudication pursuant to the 
procedures in 5 U.S.C. 554 or otherwise involving a determination on the 
record after opportunity for a hearing, the agency may maintain a set of 
minutes in lieu of the transcript or recording described in paragraph 
(a)(3) of this section. Such minutes shall contain:
    (1) A full and clear description of all matters discussed in the 
closed portion of any meeting;
    (2) A full and accurate summary of any action taken on any matter 
discussed in the closed portion of any meeting and the reasons therefor;
    (3) A description of each of the views expressed on any matter upon 
which action was taken as described in paragraph (b)(2) of this section;
    (4) The record of any rollcall vote which shall show the vote of 
each member on the question; and
    (5) An identification of all documents considered in connection with 
any action taken on a matter described in paragraph (b)(1) of this 
section.
    (c) All records maintained by the agency as described in this 
section shall be held by the agency for a period of not less than two 
(2) years following any meeting or not less than one (1) year following 
the conclusion of any agency proceeding with respect to which that 
meeting or portion of a meeting was held.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.86  Public access to records.

    (a) All transcripts, electronic recordings or minutes required to be 
maintained by the agency under the provisions of Sec. Sec. 503.85(a)(3) 
and 503.85(b) shall be promptly made available to the public by the 
Secretary of the agency, except for any item of discussion or testimony 
of any witnesses which the agency determines to contain information 
which may be withheld from public disclosure because its disclosure is 
likely to disclose matters which are:
    (1)(i) specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and (ii) in fact properly classified pursuant to such 
Executive order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by any statute other than 
5 U.S.C. 552 (FOIA), provided that such statute
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Involved with accusing any person of a crime, or formally 
censuring any person;
    (6) Of a personal nature where disclosure would constitute a clearly 
unwarranted invasion of personal privacy;
    (7) Investigatory records compiled for law enforcement purposes, or 
information which, if written, would be contained in such records, but 
only to the extent that the production of such records or information 
would
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;

[[Page 124]]

    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions;
    (9) Information, the premature disclosure of which would be likely 
to significantly frustrate implementation of a proposed agency action, 
unless the agency has already disclosed to the public the content or 
nature of its proposed action, or where the agency is required by law to 
make such disclosure on its own initiative prior to taking final agency 
action on such proposal; or
    (10) Specifically concerned with the agency's issuance of a subpena, 
or the agency's participation in a civil action or proceeding, an action 
in a foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 
or otherwise involving a determination on the record after opportunity 
for a hearing.
    (b) Requests for access to the records described in this section 
shall be made in accordance with procedures described in subparts C and 
D of this part.
    (c) Records disclosed to the public under this section shall be 
furnished at the expense of the party requesting such access at the 
actual cost of duplication or transcription.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999]



Sec. 503.87  Effect of provisions of this subpart on other subparts.

    (a) Nothing in this subpart shall limit or expand the ability of any 
person to seek access to agency records under subpart D (Sec. Sec. 
503.31 to 503.36) of this part except that the exceptions of Sec. 
503.86 shall govern requests to copy or inspect any portion of any 
transcript, electronic recordings or minutes required to be kept under 
this subpart.
    (b) Nothing in this subpart shall permit the withholding from any 
individual to whom a record pertains any record required by this subpart 
to be maintained by the agency which record is otherwise available to 
such an individual under the provisions of subpart G of this part.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



PART 504_PROCEDURES FOR ENVIRONMENTAL POLICY ANALYSIS--Table of Contents



Sec.
504.1 Purpose and scope.
504.2 Definitions.
504.3 General information.
504.4 Categorical exclusions.
504.5 Environmental assessments.
504.6 Finding of no significant impact.
504.7 Environmental impact statements.
504.8 Record of decision.
504.9 Information required by the Commission.
504.10 Time constraints on final administrative actions.
504.91 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 5 U.S.C. 552, 553; 46 U.S.C. 305 and 41107-41109; 42 
U.S.C. 4332(2)(b), and 42 U.S.C. 6362.

    Source: 49 FR 44415, Nov. 6, 1984, unless otherwise noted.



Sec. 504.1  Purpose and scope.

    (a) This part implements the National Environmental Policy Act of 
1969 (NEPA) and Executive Order 12114 and incorporates and complies with 
the Regulations of the Council on Environmental Quality (CEQ) (40 CFR 
part 1500 et seq.).
    (b) This part applies to all actions of the Federal Maritime 
Commission (Commission). To the extent possible, the Commission shall 
integrate the requirements of NEPA with its obligations under section 
382(b) of the Energy Policy and Conservation Act of 1975, 42 U.S.C. 
6362.
    (c) Information obtained under this part is used by the Commission 
to assess potential environmental impacts of proposed Federal Maritime 
Commission actions. Compliance is voluntary but may be made mandatory by 
Commission order to produce the information pursuant to section 15 of 
the Shipping Act of 1984 (46 U.S.C. 40104). The penalty for violation of 
a Commission order under section 13 of the Shipping Act of 1984 (46 
U.S.C. 41107-41109) may not exceed $5,000 for each violation, unless the 
violation was willfully and knowingly committed, in which case

[[Page 125]]

the amount of the civil penalty may not exceed $25,000 for each 
violation, as adjusted by Sec. 506.4 of this chapter. (Each day of a 
continuing violation constitutes a separate offense.)

[49 FR 44415, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999; 74 
FR 50718, Oct. 1, 2009]



Sec. 504.2  Definitions.

    (a) Shipping Act of 1984 means the Shipping Act of 1984 (46 U.S.C. 
40101-41309).
    (b) Common carrier means any common carrier by water as defined in 
section 3 of the Shipping Act of 1984 (46 U.S.C. 40102), including a 
conference of such carriers.
    (c) Environmental impact means any alteration of existing 
environmental conditions or creation of a new set of environmental 
conditions, adverse or beneficial, caused or induced by the action under 
consideration.
    (d) Potential action means the range of possible Commission actions 
that may result from a Commission proceeding in which the Commission has 
not yet formulated a proposal.
    (e) Proposed action means that stage of activity where the 
Commission has determined to take a particular course of action and the 
effects of that course of action can be meaningfully evaluated.
    (f) Environmental assessment means a concise document that serves to 
``provide sufficient evidence and analysis for determining whether to 
prepare an environmental impact statement or a finding of no significant 
impact'' (40 CFR 1508.9).
    (g) Recyclable means any secondary material that can be used as a 
raw material in an industrial process in which it is transformed into a 
new product replacing the use of a depletable natural resource.
    (h) 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, United States Code.
    (i) Commission means the Federal Maritime Commission, including any 
office or bureau to which the Commission may delegate its environmental 
policy analysis responsibilities.

[49 FR 44415, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999; 74 
FR 50718, Oct. 1, 2009]



Sec. 504.3  General information.

    (a) All comments submitted pursuant to this part shall be addressed 
to the Secretary, Federal Maritime Commission, 800 North Capitol Street, 
N.W., Washington, D.C. 20573-0001.
    (b) A list of recent Commission actions, if any, for which a finding 
of no significant impact has been made or for which an environmental 
impact statement is being prepared will be maintained by the Commission 
in the Office of the Secretary and will be available for public 
inspection.
    (c) Information or status reports on environmental statements and 
other elements of the NEPA process can be obtained from the Secretary, 
Federal Maritime Commission, 800 North Capitol Street, N.W., Washington, 
D.C. 20573-0001.

[64 FR 23549, May 3, 1999]



Sec. 504.4  Categorical exclusions.

    (a) No environmental analyses need be undertaken or environmental 
documents prepared in connection with actions which do not individually 
or cumulatively have a significant effect on the quality of the human 
environment because they are purely ministerial actions or because they 
do not increase or decrease air, water or noise pollution or the use of 
fossil fuels, recyclables, or energy. The following Commission actions, 
and rulemakings related thereto, are therefore excluded:
    (1) Issuance, modification, denial and revocation of ocean 
transportation intermediary licenses.
    (2) Certification of financial responsibility of passenger vessels 
pursuant to 46 CFR part 540.
    (3) Receipt of surety bonds submitted by ocean transportation 
intermediaries.
    (4) Promulgation of procedural rules pursuant to 46 CFR part 502.
    (5) Receipt of service contracts.

[[Page 126]]

    (6) Consideration of special permission applications pursuant to 
part 520 of this chapter.
    (7)-(8) [Reserved]
    (9) Consideration of amendments to agreements filed pursuant to 
section 5 of the Shipping Act of 1984 (46 U.S.C. 40301(d)-(e), 40302-
40303, 40305), which do not increase the authority set forth in the 
effective agreement.
    (10) Consideration of agreements between common carriers which 
solely affect intraconference or inter-rate agreement relationships or 
pertain to administrative matters of conferences or rate agreements.
    (11) Consideration of agreements between common carriers to discuss, 
propose or plan future action, the implementation of which requires 
filing a further agreement.
    (12) Consideration of exclusive or non-exclusive equipment 
interchange or husbanding agreements.
    (13) Receipt of non-exclusive transshipment agreements.
    (14) Action relating to collective bargaining agreements.
    (15) Action pursuant to section 9 of the Shipping Act of 1984 (46 
U.S.C. 40701-40706) concerning the justness and reasonableness of 
controlled carriers' rates, charges, classifications, rules or 
regulations.
    (16) Receipt of self-policing reports or shipper requests and 
complaints.
    (17) [Reserved]
    (18) Consideration of actions solely affecting the environment of a 
foreign country.
    (19) Action taken on special docket applications pursuant to Sec. 
502.271 of this chapter.
    (20) Consideration of matters related solely to the issue of 
Commission jurisdiction.
    (21) [Reserved]
    (22) Investigatory and adjudicatory proceedings, the purpose of 
which is to ascertain past violations of the Shipping Act of 1984.
    (23) [Reserved]
    (24) Action regarding access to public information pursuant to 46 
CFR part 503.
    (25) Action regarding receipt and retention of minutes of conference 
meetings.
    (26) Administrative procurements (general supplies).
    (27) Contracts for personal services.
    (28) Personnel actions.
    (29) Requests for appropriations.
    (30) Consideration of all agreements involving marine terminal 
facilities and/or services except those requiring substantial levels of 
construction, dredging, land-fill, energy usage and other activities 
which may have a significant environmental effect.
    (31) Consideration of agreements regulating employee wages, hours of 
work, working conditions or labor exchanges.
    (32) Consideration of general agency agreements involving 
ministerial duties of a common carrier such as internal management, 
cargo solicitation, booking of cargo, or preparation of documents.
    (33) Consideration of agreements pertaining to credit rules.
    (34) Consideration of agreements involving performance bonds to a 
conference from a conference member guaranteeing compliance by the 
member with the rules and regulations of the conference.
    (35) Consideration of agreements between members of two or more 
conferences or other rate-fixing agreements to discuss and agree upon 
common self-policing systems and cargo inspection services.
    (b) If interested persons allege that a categorically-excluded 
action will have a significant environmental effect (e.g., increased or 
decreased air, water or noise pollution; use of recyclables; use of 
fossil fuels or energy), they shall, by written submission to the 
Secretary, explain in detail their reasons. The Secretary shall refer 
these submissions for determination by the appropriate Commission 
official, not later than ten (10) days after receipt, whether to prepare 
an environmental assessment. Upon a determination not to prepare an 
environmental assessment, such persons may petition the Commission for 
review of the decision within ten (10) days of receipt of notice of such 
determination.
    (c) If the individual or cumulative effect of a particular action 
otherwise categorically excluded offers a reasonable potential of having 
a significant

[[Page 127]]

environmental impact, an environmental assessment shall be prepared 
pursuant to Sec. 504.5.

[49 FR 44415, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 56 
FR 50662, Oct. 8, 1991; 60 FR 27229, May 23, 1995; 61 FR 66617, Dec. 18, 
1996; 64 FR 23549, May 3, 1999; 74 FR 50718, Oct. 1, 2009]



Sec. 504.5  Environmental assessments.

    (a) Every Commission action not specifically excluded under Sec. 
504.4 shall be subject to an environmental assessment.
    (b) A notice of intent to prepare an environmental assessment 
briefly describing the nature of the potential or proposed action and 
inviting written comments to aid in the preparation of the environmental 
assessment and early identification of the significant environmental 
issues may be published in the Federal Register. Such comments must be 
received by the Commission no later than ten (10) days from the date of 
publication of the notice in the Federal Register.

[49 FR 44415, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999]



Sec. 504.6  Finding of no significant impact.

    (a) If upon completion of an environmental assessment, it is 
determined that a potential or proposed action will not have a 
significant impact on the quality of the human environment of the United 
States or of the global commons, a finding of no significant impact 
shall be prepared and notice of its availability published in the 
Federal Register. This document shall include the environmental 
assessment or a summary of it, and shall briefly present the reasons why 
the potential or proposed action, not otherwise excluded under Sec. 
504.4, will not have a significant effect on the human environment and 
why, therefore, an environmental impact statement (EIS) will not be 
prepared.
    (b) Petitions for review of a finding of no significant impact must 
be received by the Commission within ten (10) days from the date of 
publication of the notice of its availability in the Federal Register. 
The Commission shall review the petitions and either deny them or order 
prepared an EIS pursuant to Sec. 504.7. The Commission shall, within 
ten (10) days of receipt of the petition, serve copies of its order upon 
all parties who filed comments concerning the potential or proposed 
action or who filed petitions for review.

[64 FR 23549, May 3, 1999]



Sec. 504.7  Environmental impact statements.

    (a) General. (1) An environmental impact statement (EIS) shall be 
prepared when the environmental assessment indicates that a potential or 
proposed action may have a significant impact upon the environment of 
the United States or the global commons.
    (2) The EIS process will commence:
    (i) For adjudicatory proceedings, when the Commission issues an 
order of investigation or a complaint is filed;
    (ii) For rulemaking or legislative proposals, upon issuance of the 
proposal by the Commission; and
    (iii) For other actions, the time the action is noticed in the 
Federal Register.
    (3) The major decision points in the EIS process are:
    (i) The issuance of an initial decision in those cases assigned to 
be heard by an Administrative Law Judge (ALJ); and
    (ii) The issuance of the Commission's final decision or report on 
the action.
    (4) The EIS shall consider potentially significant impacts upon the 
quality of the human environment of the United States and, in 
appropriate cases, upon the environment of the global commons outside 
the jurisdiction of any nation.
    (b) Draft environmental impact statements. (1) A draft environmental 
impact statement (DEIS) will initially be prepared in accordance with 40 
CFR part 1502.
    (2) The DEIS shall be distributed to every party to a Commission 
proceeding for which it was prepared. There will be no fee charged to 
such parties. One copy per person will also be provided to interested 
persons at their request. The fee charged such persons shall be that 
provided in Sec. 503.43 of this chapter.
    (3) Comments on the DEIS must be received by the Commission within 
ten (10) days of the date the Environmental

[[Page 128]]

Protection Agency (EPA) publishes in the Federal Register notice that 
the DEIS was filed with it. Sixteen copies shall be submitted as 
provided in Sec. 504.3(a). Comments shall be as specific as possible 
and may address the adequacy of the DEIS or the merits of the 
alternatives discussed in it. All comments received will be made 
available to the public. Extensions of time for commenting on the DEIS 
may be granted by the Commission for up to ten (10) days if good cause 
is shown.
    (c) Final environmental impact statements. (1) After receipt of 
comments on the DEIS, a final environmental impact statement (FEIS) will 
be prepared pursuant to 40 CFR part 1502, which shall include a 
discussion of the possible alternative actions to a potential or 
proposed action. The FEIS will be distributed in the same manner as 
specified in paragraph (b)(2) of this section.
    (2) The FEIS shall be prepared prior to the Commission's final 
decision and shall be filed with the Secretary, Federal Maritime 
Commission. Upon filing, it shall become part of the administrative 
record.
    (3) For any Commission action which has been assigned to an ALJ for 
evidentiary hearing:
    (i) The FEIS shall be submitted prior to the close of the record, 
and
    (ii) The ALJ shall consider the environmental impacts and 
alternatives contained in the FEIS in preparing the initial decision.
    (4)(i) For all proposed Commission actions, any party may, by 
petition to the Commission within ten (10) days following EPA's notice 
in the Federal Register, assert that the FEIS contains a substantial and 
material error of fact which can only be properly resolved by conducting 
an evidentiary hearing, and expressly request that such a hearing be 
held. Other parties may submit replies to the petition within ten (10) 
days of its receipt.
    (ii) The Commission may delineate the issue(s) and refer them to an 
ALJ for expedited resolution or may elect to refer the petition to an 
ALJ for consideration.
    (iii) The ALJ shall make findings of fact on the issue(s) and shall 
certify such findings to the Commission as a supplement to the FEIS. To 
the extent that such findings differ from the FEIS, it shall be modified 
by the supplement.
    (iv) Discovery may be granted by the ALJ on a showing of good cause 
and, if granted, shall proceed on an expedited basis.

[49 FR 44415, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 64 
FR 23550, May 3, 1999]



Sec. 504.8  Record of decision.

    The Commission shall consider each alternative described in the FEIS 
in its decisionmaking and review process. At the time of its final 
report or order, the Commission shall prepare a record of decision 
pursuant to 40 CFR 1505.2.



Sec. 504.9  Information required by the Commission.

    (a) Upon request, a person filing a complaint, protest, petition or 
agreement requesting Commission action shall submit, no later than ten 
(10) days from the date of the request, a statement setting forth, in 
detail, the impact of the requested Commission action on the quality of 
the human environment, if such requested action will:
    (1) Alter cargo routing patterns between ports or change modes of 
transportation;
    (2) Change rates or services for recyclables;
    (3) Change the type, capacity or number of vessels employed in a 
specific trade; or
    (4) Alter terminal or port facilities.
    (b) The statement submitted shall, to the fullest extent possible, 
include:
    (1) The probable impact of the requested Commission action on the 
environment (e.g., the use of energy or natural resources, the effect on 
air, noise, or water pollution), compared to the environmental impact 
created by existing uses in the area affected by it;
    (2) Any adverse environmental effects which cannot be avoided if the 
Commission were to take or adopt the requested action; and
    (3) Any alternatives to the requested Commission action.
    (c) If environmental impacts, either adverse or beneficial, are 
alleged, they should be sufficiently identified and

[[Page 129]]

quantified to permit meaningful review. Individuals may contact the 
Secretary of the Federal Maritime Commission for informal assistance in 
preparing this statement. The Commission shall independently evaluate 
the information submitted and shall be responsible for assuring its 
accuracy if used by it in the preparation of an environmental assessment 
or EIS.
    (d) In all cases, the Secretary may request every common carrier by 
water, or marine terminal operator, or any officer, agent or employee 
thereof, as well as all parties to proceedings before the Commission, to 
submit, within ten (10) days of such request, all material information 
necessary to comply with NEPA and this part. Information not produced in 
response to an informal request may be obtained by the Commission 
pursuant to section 15 of the Shipping Act of 1984 (46 U.S.C. 40104).

[49 FR 44415, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 64 
FR 23550, May 3, 1999; 74 FR 50718, Oct. 1, 2009]



Sec. 504.10  Time constraints on final administrative actions.

    No decision on a proposed action shall be made or recorded by the 
Commission until the later of the following dates unless reduced 
pursuant to 40 CFR 1506.10(d), or unless required by a statutorily-
prescribed deadline on the Commission action:
    (a) Forty (40) days after EPA's publication of the notice described 
in Sec. 504.7(b) for a DEIS; or
    (b) Ten (10) days after publication of EPA's notice for an FEIS.



Sec. 504.91  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

    This section displays the control numbers assigned to information 
collection requirements of the Commission in this part by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act of 1980, 
Public Law 96-511. The Commission intends that this section comply with 
the requirements of section 3507(f) of the Paperwork Reduction Act, 
which requires that agencies display a current control number assigned 
by the Director of the Office of Management and Budget (OMB) for each 
agency information collection requirement:

------------------------------------------------------------------------
                                                            Current OMB
                         Section                            Control No.
------------------------------------------------------------------------
504.4 through 504.7.....................................       3072-0035
504.9...................................................      3072-0035.
------------------------------------------------------------------------



PART 505_ADMINISTRATIVE OFFSET--Table of Contents



Sec.
505.1 Scope of regulations.
505.2 Definitions.
505.3 General.
505.4 Notification procedures.
505.5 Agency review.
505.6 Written agreement for repayment.
505.7 Administrative offset.
505.8 Jeopardy procedure.

    Authority: 31 U.S.C. 3701; 31 U.S.C. 3711; 31 U.S.C. 3716.

    Source: 61 FR 50444, Sept. 26, 1996, unless otherwise noted.



Sec. 505.1  Scope of regulations.

    These regulations apply to the collection of debts owed to the 
United States arising from transactions with the Commission, or where a 
request for an offset is received by the Commission from another agency. 
These regulations are consistent with the Federal Claims Collection 
Standards on administrative offset issued jointly by the Department of 
Justice and the General Accounting Office as set forth in 4 CFR 102.3.



Sec. 505.2  Definitions.

    (a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means 
withholding money payable by the United States Government to, or held by 
the Government for, a person to satisfy a debt the person owes the 
Government.
    (b) Person includes a natural person or persons, profit or non-
profit corporation, partnership, association, trust, estate, consortium, 
or other entity which is capable of owing a debt to the United States 
Government except that agencies of the United States, or of any State or 
local government shall be excluded.



Sec. 505.3  General.

    (a) The Chairman or his or her designee, after attempting to collect 
a debt from a person under section 3(a) of

[[Page 130]]

the Federal Claims Collection Act of 1966, as assembled (31 U.S.C. 
3711(a)), may collect the debt by administrative offset subject to the 
following:
    (1) The debt is certain in amount; and
    (2) It is in the best interests of the United States to collect the 
debt by administrative offset because of the decreased costs of 
collection and the acceleration in the payment of the debt.
    (b) The Chairman, or his or her designee, may initiate 
administrative offset with regard to debts owed by a person to another 
agency of the United States Government, upon receipt of a request from 
the head of another agency or his or her designee, and a certification 
that the debt exists and that the person has been afforded the necessary 
due process rights.
    (c) The Chairman, or his or her designee, may request another agency 
that holds funds payable to a Commission debtor to offset the debt 
against the funds held and will provide certification that:
    (1) The debt exists; and
    (2) The person has been afforded the necessary due process rights.
    (d) If the six-year period for bringing action on a debt provided in 
28 U.S.C. 2415 has expired, then administrative offset may be used to 
collect the debt only if the costs of bringing such action are likely to 
be less than the amount of the debt.
    (e) No collection by administrative offset shall be made on any debt 
that has been outstanding for more than 10 years unless facts material 
to the Government's right to collect the debt were not known, and 
reasonably could not have been known, by the official or officials 
responsible for discovering and collecting such debt.
    (f) These regulations do not apply to:
    (1) A case in which administrative offset of the type of debt 
involved is explicitly provided for or prohibited by another statute; or
    (2) Debts owed by other agencies of the United States or by any 
State or local government.



Sec. 505.4  Notification procedures.

    Before collecting any debt through administrative offset, a notice 
of intent to offset shall be sent to the debtor by certified mail, 
return receipt requested, at the most current address that is available 
to the Commission. The notice shall provide:
    (a) A description of the nature and amount of the debt and the 
intention of the Commission to collect the debt through administrative 
offset;
    (b) An opportunity to inspect and copy the records of the Commission 
with respect to the debt;
    (c) An opportunity for review within the Commission of the 
determination of the Commission with respect to the debt; and
    (d) An opportunity to enter into a written agreement for the 
repayment of the amount of the debt.



Sec. 505.5  Agency review.

    (a) A debtor may dispute the existence of the debt, the amount of 
debt, or the terms of repayment. A request to review a disputed debt 
must be submitted to the Commission official who provided notification 
within 30 calendar days of the receipt of the written notice described 
in Sec. 505.4.
    (b) If the debtor requests an opportunity to inspect or copy the 
Commission's records concerning the disputed claim, 10 business days 
will be granted for the review. The time period will be measured from 
the time the request for inspection is granted or from the time the copy 
of the records is received by the debtor.
    (c) Pending the resolution of a dispute by the debtor, transactions 
in any of the debtor's account(s) maintained in the Commission may be 
temporarily suspended. Depending on the type of transaction the 
suspension could preclude its payment, removal, or transfer, as well as 
prevent the payment of interest or discount due thereon. Should the 
dispute be resolved in the debtor's favor, the suspension will be 
immediately lifted.
    (d) During the review period, interest, penalties, and 
administrative costs authorized under the Federal Claims Collection Act 
of 1996, as amended, will continue to accrue.



Sec. 505.6  Written agreement for repayment.

    A debtor who admits liability but elects not to have the debt 
collected by administrative offset will be afforded

[[Page 131]]

an opportunity to negotiate a written agreement for the repayment of the 
debt. If the financial condition of the debtor does not support the 
ability to pay in one lump-sum, reasonable installments may be 
considered. No installment arrangement will be considered unless the 
debtor submits a financial statement, executed under penalty of perjury, 
reflecting the debtor's assets, liabilities, income, and expenses. The 
financial statement must be submitted within 10 business days of the 
Commission's request for the statement. At the Commission's option, a 
confess-judgment note or bond of indemnity with surety may be required 
for installment agreements. Notwithstanding the provisions of this 
section, any reduction or compromise of a claim will be governed by 4 
CFR part 103.



Sec. 505.7  Administrative offset.

    (a) If the debtor does not exercise the right to request a review 
within the time specified in Sec. 505.5 or if as a result of the 
review, it is determined that the debt is due and no written agreement 
is executed, then administrative offset shall be ordered in accordance 
with these regulations without further notice.
    (b) Requests for offset to other Federal agencies. The Chairman or 
his or her designee may request that funds due and payable to a debtor 
by another Federal agency be administratively offset in order to collect 
a debt owed to the Commission by that debtor. In requesting 
administrative offset, the Commission, as creditor, will certify in 
writing to the Federal agency holding funds of the debtor:
    (1) That the debtor owes the debt;
    (2) The amount and basis of the debt; and
    (3) That the agency has complied with the requirements of 31 U.S.C. 
3716, its own administrative offset regulations and the applicable 
provisions of 4 CFR part 102 with respect to providing the debtor with 
due process.
    (c) Requests for offset from other Federal agencies. Any Federal 
agency may request that funds due and payable to its debtor by the 
Commission be administratively offset in order to collect a debt owed to 
such Federal agency by the debtor. The Commission shall initiate the 
requested offset only upon:
    (1) Receipt of written certification from the creditor agency:
    (i) That the debtor owes the debt;
    (ii) The amount and basis of the debt;
    (iii) That the agency has prescribed regulations for the exercise of 
administrative offset; and
    (iv) That the agency has complied with its own administrative offset 
regulations and with the applicable provisions of 4 CFR part 102, 
including providing any required hearing or review.
    (2) A determination by the Commission that collection by offset 
against funds payable by the Commission would be in the best interest of 
the United States as determined by the facts and circumstances of the 
particular case, and that such offset would not otherwise be contrary to 
law.



Sec. 505.8  Jeopardy procedure.

    The Commission may effect an administrative offset against a payment 
to be made to the debtor prior to the completion of the procedures 
required by Sec. Sec. 505.4 and 505.5 of this part if failure to take 
the offset would substantially jeopardize the Commission's ability to 
collect the debt, and the time before the payment is to be made does not 
reasonably permit the completion of those procedures. Such prior offset 
shall be promptly followed by the completion of those procedures. 
Amounts recovered by offset but later found not to be owed to the 
Commission shall be promptly refunded.



PART 506_CIVIL MONETARY PENALTY INFLATION ADJUSTMENT--Table of Contents



Sec.
506.1 Scope and purpose.
506.2 Definitions.
506.3 Civil monetary penalty inflation adjustment.
506.4 Cost of living adjustments of civil monetary penalties.
506.5 Application of increase to violations.

    Authority: 28 U.S.C. 2461.

    Source: 61 FR 52705, Oct. 8, 1996, unless otherwise noted.

[[Page 132]]



Sec. 506.1  Scope and purpose.

    The purpose of this Part is to establish a mechanism for the regular 
adjustment for inflation of civil monetary penalties and to adjust such 
penalties in conformity with the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (28 U.S.C. 2461 note), as amended by the Debt 
Collection Improvement Act of 1996, Public Law 104-134, April 26, 1996, 
in order to maintain the deterrent effect of civil monetary penalties 
and to promote compliance with the law.

[61 FR 52705, Oct. 8, 1996, as amended at 74 FR 50718, Oct. 1, 2009]



Sec. 506.2  Definitions.

    (a) Commission means the Federal Maritime Commission.
    (b) Civil Monetary Penalty means any penalty, fine, or other 
sanction that:
    (1)(i) Is for a specific monetary amount as provided by Federal law; 
or
    (ii) Has a maximum amount provided by Federal law;
    (2) Is assessed or enforced by the Commission pursuant to Federal 
law; and
    (3) Is assessed or enforced pursuant to an administrative proceeding 
or a civil action in the Federal Courts.
    (c) Consumer Price Index means the Consumer Price Index for all 
urban consumers published by the Department of Labor.



Sec. 506.3  Civil monetary penalty inflation adjustment.

    The Commission shall, not later than October 23, 1996, and at least 
once every 4 years thereafter--
    (a) By regulation adjust each civil monetary penalty provided by law 
within the jurisdiction of the Commission by the inflation adjustment 
described in Sec. 506.4; and
    (b) Publish each such regulation in the Federal Register.



Sec. 506.4  Cost of living adjustments of civil monetary penalties.

    (a) The inflation adjustment under Sec. 506.3 shall be determined 
by increasing the maximum civil monetary penalty for each civil monetary 
penalty by the cost-of-living adjustment. Any increase determined under 
this subsection shall be rounded to the nearest:
    (1) Multiple of $10 in the case of penalties less than or equal to 
$100;
    (2) Multiple of $100 in the case of penalties greater than $100 but 
less than or equal to $1,000;
    (3) Multiple of $1,000 in the case of penalties greater than $1,000 
but less than or equal to $10,000;
    (4) Multiple of $5,000 in the case of penalties greater than $10,000 
but less than or equal to $100,000;
    (5) Multiple of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (6) Multiple of $25,000 in the case of penalties greater than 
$200,000.
    (b) For purposes of paragraph (a) of this section, the term `cost-
of-living adjustment' means the percentage (if any) for each civil 
monetary penalty by which the Consumer Price Index for the month of June 
of the calendar year preceding the adjustment, exceeds the Consumer 
Price Index for the month of June of the calendar year in which the 
amount of such civil monetary penalty was last set or adjusted pursuant 
to law.
    (c) Limitation on initial adjustment. The first adjustment of civil 
monetary penalty pursuant to Sec. 506.3 may not exceed 10 percent of 
such penalty.
    (d) Inflation adjustment. Maximum Civil Monetary Penalties within 
the jurisdiction of the Federal Maritime Commission are adjusted for 
inflation as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                       Current
                                                                                       maximum     New adjusted
        United States Code citation            Civil monetary penalty description      penalty        maximum
                                                                                        amount    penalty amount
----------------------------------------------------------------------------------------------------------------
46 U.S.C. 42304............................  Adverse impact on U.S. carriers by        1,175,000       1,500,000
                                              foreign shipping practices.
46 U.S.C. 41107(a).........................  Knowing and willful violation/Shipping       30,000          40,000
                                              Act of 1984, or Commission regulation
                                              or order.
46 U.S.C. 41107(a).........................  Violation of Shipping Act of 1984,            6,000           8,000
                                              Commission regulation or order, not
                                              knowing and willful.
46 U.S.C. 41108(b).........................  Operating in foreign commerce after          60,000          75,000
                                              tariff suspension.
46 U.S.C. 42104............................  Failure to provide required reports,          6,000           8,000
                                              etc./Merchant Marine Act of 1920.

[[Page 133]]

 
46 U.S.C. 42106............................  Adverse shipping conditions/Merchant      1,175,000       1,500,000
                                              Marine Act of 1920.
46 U.S.C. 42108............................  Operating after tariff or service            60,000          75,000
                                              contract suspension/Merchant Marine
                                              Act of 1920.
46 U.S.C. 44102............................  Failure to establish financial                6,000           8,000
                                              responsibility for non-performance of          220             300
                                              transportation.
46 U.S.C. 44103............................  Failure to establish financial                6,000           8,000
                                              responsibility for death or injury.            220             300
31 U.S.C. 3802(a)(1).......................  Program Fraud Civil Remedies Act/makes        6,000           8,000
                                              false claim.
31 U.S.C. 3802(a)(2).......................  Program Fraud Civil Remedies Act/             6,000           8,000
                                              giving false statement.
----------------------------------------------------------------------------------------------------------------


[61 FR 52705, Oct. 8, 1996, as amended at 64 FR 23550, May 3, 1999; 65 
FR 49741, Aug. 15, 2000; 74 FR 38115, July 31, 2009; 76 FR 74720, Dec. 
1, 2011]



Sec. 506.5  Application of increase to violations.

    Any increase in a civil monetary penalty under this part shall apply 
only to violations which occur after the date the increase takes effect.



PART 507_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL MARITIME 

COMMISSION--Table of Contents



Sec.
507.101 Purpose.
507.102 Application.
507.103 Definitions.
507.104-507.109 [Reserved]
507.110 Self-evaluation.
507.111 Notice.
507.112-507.129 [Reserved]
507.130 General prohibitions against discrimination.
507.131-507.139 [Reserved]
507.140 Employment.
507.141-507.148 [Reserved]
507.149 Program accessibility: Discrimination prohibited.
507.150 Program accessibility: Existing facilities.
507.151 Program accessibility: New construction and alterations.
507.152-507.159 [Reserved]
507.160 Communications.
507.161-507.169 [Reserved]
507.170 Compliance procedures.
507.171-507.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22895, 22896, June 23, 1986, unless otherwise noted.



Sec. 507.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec. 507.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 507.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.

[[Page 134]]

    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 507.140.

[[Page 135]]

    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 507.104-507.109  [Reserved]



Sec. 507.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 507.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 507.112-507.129  [Reserved]



Sec. 507.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.

[[Page 136]]

    (3) The agency may not, directly or through contractual or other 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 507.131-507.139  [Reserved]



Sec. 507.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Sec. Sec. 507.141-507.148  [Reserved]



Sec. 507.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 507.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 507.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the

[[Page 137]]

burden of proving that compliance with Sec. 507.150(a) would result in 
such alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 507.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to handicapped 
persons. In cases where a physical alteration to an historic property is 
not required because of Sec. 507.150 (a)(2) or (a)(3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 507.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on

[[Page 138]]

behalf of, or for the use of the agency shall be designed, constructed, 
or altered so as to be readily accessible to and usable by handicapped 
persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 507.152-507.159  [Reserved]



Sec. 507.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 507.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 507.161-507.169  [Reserved]



Sec. 507.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director, Bureau of Administration shall be responsible for 
coordinating implementation of this section. Complaints may be sent to 
the Director, Bureau of Administration, Federal Maritime Commission, 800 
North Capitol Street, N.W., Washington, DC 20573.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.

[[Page 139]]

    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 507.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 22895, June 23, 1986, as amended at 51 FR 22896, June 23, 1986; 
64 FR 23551, May 3, 1999]



Sec. Sec. 507.171-507.999  [Reserved]



PART 508_EMPLOYEE ETHICAL CONDUCT STANDARDS AND FINANCIAL DISCLOSURE 
REGULATIONS--Table of Contents



Sec.
508.101 Cross-referrence to employee ethical conduct standards and 
          financial disclosure regulations.

    Authority: 5 U.S.C. 553; 5 U.S.C. 7301; 46 U.S.C. 305.



Sec. 508.101  Cross-referrence to employee ethical conduct standards
and financial disclosure regulations.

    Employees of the Federal Maritime Commission (``FMC'') should refer 
to the executive branch-wide Standards of Ethical Conduct at 5 CFR part 
2635, and the executive branch-wide financial disclosure regulation at 5 
CFR part 2634.

[60 FR 9787, Feb. 22, 1995. Redesignated at 64 FR 23546, May 3, 1999]

[[Page 140]]



  SUBCHAPTER B_REGULATIONS AFFECTING OCEAN SHIPPING IN FOREIGN COMMERCE





PART 515_LICENSING, FINANCIAL RESPONSIBILITY REQUIREMENTS, AND GENERAL 
DUTIES FOR OCEAN TRANSPORTATION INTERMEDIARIES--Table of Contents



                            Subpart A_General

Sec.
515.1 Scope.
515.2 Definitions.
515.3 License; when required.
515.4 License; when not required.
515.5 Forms and fees.

            Subpart B_Eligibility and Procedure for Licensing

515.11 Basic requirements for licensing; eligibility.
515.12 Application for license.
515.13 Investigation of applicants.
515.14 Issuance and use of license.
515.15 Denial of license.
515.16 Revocation or suspension of license.
515.17 Application after revocation or denial.
515.18 Changes in organization.
515.19 Registration of foreign-based unlicensed NVOCC.

 Subpart C_Financial Responsibility Requirements; Claims Against Ocean 
                      Transportation Intermediaries

515.21 Financial responsibility requirements.
515.22 Proof of financial responsibility.
515.23 Claims against an ocean transportation intermediary.
515.24 Agent for service of process.
515.25 Filing of proof of financial responsibility.
515.26 Termination of financial responsibility.
515.27 Proof of compliance.

Appendix A to Subpart C--Ocean Transportation Intermediary (OTI) Bond 
          Form [Form-48]
Appendix B to Subpart C--Ocean Transportation Intermediary (OTI) 
          Insurance Form [Form-67]
Appendix C to Subpart C--Ocean Transportation Intermediary (OTI) 
          Guaranty Form [Form-68]
Appendix D to Subpart C--Ocean Transportation Intermediary (OTI) Group 
          Bond Form [FMC-69]
Appendix E to Subpart C--Optional Rider for Additional NVOCC Financial 
          Responsibility (Optional Rider to Form FMC-48] [FORM 48A]
Appendix F to Subpart C--Optional Rider for Additional NVOCC Financial 
          Responsibility for Group Bonds(Optional Rider to Form FMC-69]

     Subpart D_Duties and Responsibilities of Ocean Transportation 
                  Intermediaries; Reports to Commission

515.31 General duties.
515.32 Freight forwarder duties.
515.33 Records required to be kept.
515.34 Regulated Persons Index.

           Subpart E_Freight Forwarding Fees and Compensation

515.41 Forwarder and principal; fees.
515.42 Forwarder and carrier; compensation.
515.91 OMB control number assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 46 U.S.C. 305, 40102, 
40104, 40501-40503, 40901-40904, 41101-41109, 41301-41302, 41305-41307; 
Pub. L. 105-383, 112 Stat. 3411; 21 U.S.C. 862.

    Source: 64 FR 11171, Mar. 8, 1999, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 515 appear at 67 FR 
39860, June 11, 2002, and 70 FR 7669, Feb. 15, 2005.



                            Subpart A_General



Sec. 515.1  Scope.

    (a) This part sets forth regulations providing for the licensing as 
ocean transportation intermediaries of persons who wish to carry on the 
business of providing intermediary services, including the grounds and 
procedures for revocation and suspension of licenses. This part also 
prescribes the financial responsibility requirements and the duties and 
responsibilities of ocean transportation intermediaries, and regulations 
concerning practices of ocean transportation intermediaries with respect 
to common carriers.
    (b) Information obtained under this part is used to determine the 
qualifications of ocean transportation intermediaries and their 
compliance with shipping statutes and regulations. Failure to follow the 
provisions of this part

[[Page 141]]

may result in denial, revocation or suspension of an ocean 
transportation intermediary license. Persons operating without the 
proper license may be subject to civil penalties not to exceed $5,500 
for each such violation unless the violation is willfully and knowingly 
committed, in which case the amount of the civil penalty may not exceed 
$27,500 for each violation; for other violations of the provisions of 
this part, the civil penalties range from $5,500 to $27,500 for each 
violation (46 U.S.C. 41107-41109). Each day of a continuing violation 
shall constitute a separate violation.

[64 FR 11171, Mar. 8, 1999, as amended at 74 FR 50719, Oct. 1, 2009]



Sec. 515.2  Definitions.

    The terms used in this part are defined as follows:
    (a) Act means the Shipping Act of 1984, as amended by the Ocean 
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of 
1998.
    (b) Beneficial interest includes a lien or interest in or right to 
use, enjoy, profit, benefit, or receive any advantage, either 
proprietary or financial, from the whole or any part of a shipment of 
cargo where such interest arises from the financing of the shipment or 
by operation of law, or by agreement, express or implied. The term 
``beneficial interest'' shall not include any obligation in favor of an 
ocean transportation intermediary arising solely by reason of the 
advance of out-of-pocket expenses incurred in dispatching a shipment.
    (c) Branch office means any office in the United States established 
by or maintained by or under the control of a licensee for the purpose 
of rendering intermediary services, which office is located at an 
address different from that of the licensee's designated home office.
    (d) Brokerage refers to payment by a common carrier to an ocean 
freight broker for the performance of services as specified in paragraph 
(n) of this section.
    (e) Commission means the Federal Maritime Commission.
    (f) Common carrier means any 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, 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) Compensation means payment by a common carrier to a freight 
forwarder for the performance of services as specified in Sec. 
515.42(c).
    (h) Freight forwarding fee means charges billed by a freight 
forwarder to a shipper, consignee, seller, purchaser, or any agent 
thereof, for the performance of freight forwarding services.
    (i) Freight forwarding services refers to the dispatching of 
shipments on behalf of others, in order to facilitate shipment by a 
common carrier, which may include, but are not limited to, the 
following:
    (1) Ordering cargo to port;
    (2) Preparing and/or processing export declarations;
    (3) Booking, arranging for or confirming cargo space;
    (4) Preparing or processing delivery orders or dock receipts;
    (5) Preparing and/or processing ocean bills of lading;
    (6) Preparing or processing consular documents or arranging for 
their certification;
    (7) Arranging for warehouse storage;
    (8) Arranging for cargo insurance;
    (9) Clearing shipments in accordance with United States Government 
export regulations;

[[Page 142]]

    (10) Preparing and/or sending advance notifications of shipments or 
other documents to banks, shippers, or consignees, as required;
    (11) Handling freight or other monies advanced by shippers, or 
remitting or advancing freight or other monies or credit in connection 
with the dispatching of shipments;
    (12) Coordinating the movement of shipments from origin to vessel; 
and
    (13) Giving expert advice to exporters concerning letters of credit, 
other documents, licenses or inspections, or on problems germane to the 
cargoes' dispatch.
    (j) From the United States means oceanborne export commerce from the 
United States, its territories, or possessions, to foreign countries.
    (k) Licensee is any person licensed by the Federal Maritime 
Commission as an ocean transportation intermediary.
    (l) Non-vessel-operating common carrier services refers to the 
provision of transportation by water of cargo between the United States 
and a foreign country for compensation without operating the vessels by 
which the transportation is provided, and may include, but are not 
limited to, the following:
    (1) Purchasing transportation services from a VOCC and offering such 
services for resale to other persons;
    (2) Payment of port-to-port or multimodal transportation charges;
    (3) Entering into affreightment agreements with underlying shippers;
    (4) Issuing bills of lading or equivalent documents;
    (5) Arranging for inland transportation and paying for inland 
freight charges on through transportation movements;
    (6) Paying lawful compensation to ocean freight forwarders;
    (7) Leasing containers; or
    (8) Entering into arrangements with origin or destination agents.
    (m) Ocean common carrier means a common carrier that operates, for 
all or part of its common carrier service, a vessel 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.
    (n) Ocean freight broker is an entity which is engaged by a carrier 
to secure cargo for such carrier and/or to sell or offer for sale ocean 
transportation services and which holds itself out to the public as one 
who negotiates between shipper or consignee and carrier for the 
purchase, sale, conditions and terms of transportation.
    (o) Ocean transportation intermediary means an ocean freight 
forwarder or a non-vessel-operating common carrier. For the purposes of 
this part, the term
    (1) Ocean freight forwarder means a person that--
    (i) in the United States, dispatches shipments from the United 
States via a common carrier and books or otherwise arranges space for 
those shipments on behalf of shippers; and
    (ii) processes the documentation or performs related activities 
incident to those shipments; and
    (2) Non-vessel-operating common carrier (``NVOCC'') means 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.
    (p) Person includes individuals, corporations, partnerships and 
associations existing under or authorized by the laws of the United 
States or of a foreign country.
    (q) Principal, except as used in Surety Bond Form FMC-48, and Group 
Bond Form FMC-69, refers to the shipper, consignee, seller, or purchaser 
of property, and to anyone acting on behalf of such shipper, consignee, 
seller, or purchaser of property, who employs the services of a licensed 
freight forwarder to facilitate the ocean transportation of such 
property.
    (r) Reduced forwarding fees means charges to a principal for 
forwarding services that are below the licensed freight forwarder's 
usual charges for such services.
    (s) Shipment means all of the cargo carried under the terms of a 
single bill of lading.
    (t) 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

[[Page 143]]

    (5) a non-vessel-operating common carrier that accepts 
responsibility for payment of all charges applicable under the tariff or 
service contract.
    (u) Small shipment refers to a single shipment sent by one consignor 
to one consignee on one bill of lading which does not exceed the 
underlying common carrier's minimum charge rule.
    (v) Special contract is a contract for freight forwarding services 
which provides for a periodic lump sum fee.
    (w) Transportation-related activities which are covered by the 
financial responsibility obtained pursuant to this part include, to the 
extent involved in the foreign commerce of the United States, any 
activity performed by an ocean transportation intermediary that is 
necessary or customary in the provision of transportation services to a 
customer, but are not limited to the following:
    (1) For an ocean transportation intermediary operating as a Freight 
forwarder, the freight forwarding services enumerated in Sec. 515.2(i), 
and
    (2) For an ocean transportation intermediary operating as a non-
vessel-operating common carrier, the non-vessel-operating common 
carriers services enumerated in Sec. 515.2(l).
    (x) United States includes the several States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the 
Northern Marianas, and all other United States territories and 
possessions.

[64 FR 11171, Mar. 8, 1999, as amended at 65 FR 15254, Mar. 22, 2000; 65 
FR 26512, May 8, 2000]



Sec. 515.3  License; when required.

    Except as otherwise provided in this part, no person in the United 
States may act as an ocean transportation intermediary unless that 
person holds a valid license issued by the Commission. A separate 
license is required for each branch office that is separately 
incorporated. For purposes of this part, a person is considered to be 
``in the United States'' if such person is resident in, or incorporated 
or established under, the laws of the United States. Only persons 
licensed under this part may furnish or contract to furnish ocean 
transportation intermediary services in the United States on behalf of 
an unlicensed ocean transportation intermediary.



Sec. 515.4  License; when not required.

    A license is not required in the following circumstances:
    (a) Shipper. Any person whose primary business is the sale of 
merchandise may, without a license, dispatch and perform freight 
forwarding services on behalf of its own shipments, or on behalf of 
shipments or consolidated shipments of a parent, subsidiary, affiliate, 
or associated company. Such person shall not receive compensation from 
the common carrier for any services rendered in connection with such 
shipments.
    (b) Employee or branch office of licensed ocean transportation 
intermediary. (1) An individual employee or unincorporated branch office 
of a licensed ocean transportation intermediary is not required to be 
licensed in order to act solely for such licensee, provided that such 
branch offices:
    (i) Have been reported to the Commission in writing; and
    (ii) Are covered by increased financial responsibility in accordance 
with Sec. 515.21(a)(4).
    (2) Each licensed ocean transportation intermediary will be held 
strictly responsible for the acts or omissions of any of its employees 
or agents rendered in connection with the conduct of its business.
    (c) Common carrier. A common carrier, or agent thereof, may perform 
ocean freight forwarding services without a license only with respect to 
cargo carried under such carrier's own bill of lading. Charges for such 
forwarding services shall be assessed in conformance with the carrier's 
published tariffs.
    (d) Ocean freight brokers. An ocean freight broker is not required 
to be licensed to perform those services specified in Sec. 515.2(n).
    (e) Federal military and civilian household goods. Any person which 
exclusively transports used household goods and personal effects for the 
account of the Department of Defense, or for the

[[Page 144]]

account of the federal civilian executive agencies shipping under the 
International Household Goods Program administered by the General 
Services Administration, or both, is not subject to the requirements of 
subpart B of this part, but may be subject to other requirements, such 
as alternative surety bonding, imposed by the Department of Defense, or 
the General Services Administration.



Sec. 515.5  Forms and Fees.

    (a) Forms. License form FMC-18 Rev., and financial responsibility 
forms FMC-48, FMC-67, FMC-68, FMC-69 may be obtained from the 
Commission's Web site at http://www.fmc.gov, the Director, Bureau of 
Certification and Licensing, Federal Maritime Commission, Washington, DC 
20573, or from any of the Commission's area representatives.
    (b) Fees. All fees shall be payable by money order, certified check, 
cashier's check, or personal check to the ``Federal Maritime 
Commission.'' Should a personal check not be honored when presented for 
payment, the processing of an application under this section shall be 
suspended until the processing fee is paid. In any instance where an 
application has been processed in whole or in part, the fee will not be 
refunded. Such fees are:
    (1) Application for license as required by Sec. 515.12(a): $825;
    (2) Application for status change or license transfer as required by 
Sec. Sec. 515.18(a) and 515.18(b): $525; and

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 70 
FR 10330, Mar. 3, 2005; 72 FR 56273, Oct. 3, 2007]



            Subpart B_Eligibility and Procedure for Licensing



Sec. 515.11  Basic requirements for licensing; eligibility.

    (a) Necessary qualifications. To be eligible for an ocean 
transportation intermediary license, the applicant must demonstrate to 
the Commission that:
    (1) It possesses the necessary experience, that is, its qualifying 
individual has a minimum of three (3) years experience in ocean 
transportation intermediary activities in the United States, and the 
necessary character to render ocean transportation intermediary 
services. A foreign NVOCC seeking to be licensed under this part must 
demonstrate that its qualifying individual has a minimum 3 years' 
experience in ocean transportation intermediary activities, and the 
necessary character to render ocean transportation intermediary 
services; and
    (2) It has obtained and filed with the Commission a valid bond, 
proof of insurance, or other surety in conformance with Sec. 515.21.
    (3) An NVOCC with a tariff and proof of financial responsibility in 
effect as of April 30, 1999, may continue to operate as an NVOCC without 
the requisite three years' experience and necessary character to render 
ocean transportation intermediary services and will be provisionally 
licensed while the Commission reviews its application. Such person 
designated as the qualifying individual for a provisionally licensed 
NVOCC may not act as a qualifying individual for another ocean 
transportation intermediary until it has obtained the necessary three 
years' experience in ocean transportation intermediary services.
    (b) Qualifying individual. The following individuals must qualify 
the applicant for a license:
    (1) Sole proprietorship. The applicant sole proprietor.
    (2) Partnership. At least one of the active managing partners, but 
all partners must execute the application.
    (3) Corporation. At least one of the active corporate officers.
    (c) Affiliates of intermediaries. An independently qualified 
applicant may be granted a separate license to carry on the business of 
providing ocean transportation intermediary services even though it is 
associated with, under common control with, or otherwise related to 
another ocean transportation intermediary through stock ownership or 
common directors or officers, if such applicant submits: a separate 
application and fee, and a valid instrument of financial responsibility 
in the form and amount prescribed under Sec. 515.21. The qualifying 
individual of one active licensee shall not also be designated as the 
qualifying individual of an applicant for another ocean transportation

[[Page 145]]

intermediary license, unless both entities are commonly owned or where 
one directly controls the other.
    (d) Common carrier. A common carrier or agent thereof which meets 
the requirements of this part may be licensed to dispatch shipments 
moving on other than such carrier's own bills of lading subject to the 
provisions of Sec. 515.42(g).

[64 FR 11171, Mar. 8, 1999; 64 FR 23020, Apr. 29, 1999, as amended at 65 
FR 15254, Mar. 22, 2000]



Sec. 515.12  Application for license.

    (a) Application and forms. (1) Any person who wishes to obtain a 
license to operate as an ocean transportation intermediary shall submit, 
in duplicate, to the Director of the Commission's Bureau of 
Certification and Licensing, a completed application Form FMC-18 Rev. 
(``Application for a License as an Ocean Transportation Intermediary'') 
accompanied by the fee required under Sec. 515.5(b). All applicants 
will be assigned an application number, and each applicant will be 
notified of the number assigned to its application. Notice of filing of 
such application shall be published in the Federal Register and shall 
state the name and address of the applicant and the name and address of 
the qualifying individual. If the applicant is a corporation or 
partnership, the names of the officers or partners thereof shall be 
published.
    (2) An individual who is applying for a license in his or her own 
name must complete the following certification:

    I, ------ (Name), ------, certify under penalty of perjury under the 
laws of the United States, that I have not been convicted, after 
September 1, 1989, of any Federal or state offense involving the 
distribution or possession of a controlled substance, or that if I have 
been so convicted, I am not ineligible to receive Federal benefits, 
either by court order or operation of law, pursuant to 21 U.S.C. 862.

    (b) Rejection. Any application which appears upon its face to be 
incomplete or to indicate that the applicant fails to meet the licensing 
requirements of the Act, or the Commission's regulations, shall be 
returned by certified U.S. mail or other method reasonably calculated to 
provide actual notice to the applicant without further processing, 
together with an explanation of the reason(s) for rejection, and the 
application fee shall be refunded in full. Persons who have had their 
applications returned may reapply for a license at any time thereafter 
by submitting a new application, together with the full application fee.
    (c) Investigation. Each applicant shall be investigated in 
accordance with Sec. 515.13.
    (d) Changes in fact. Each applicant and each licensee shall submit 
to the Commission, in duplicate, an amended Form FMC-18 Rev. advising of 
any changes in the facts submitted in the original application, within 
thirty (30) days after such change(s) occur. In the case of an 
application for a license, any unreported change may delay the 
processing and investigation of the application and may result in 
rejection or denial of the application. No fee is required when 
reporting changes to an application for initial license under this 
section.
    (e) Optional method of filing Form FMC-18. In lieu of completing and 
filing Form FMC-18 in paper format, applications and amendments thereto 
may be completed and submitted to the Bureau of Certification and 
Licensing by using the automated FMC-18 filing system in accordance with 
the instructions found on the Commission's home page, http://
www.fmc.gov. A $250 fee for filing a new application and a $125 fee for 
filing an amended application will be assessed for filers using the 
automated FMC-18 filing system instead of the fees listed at Sec. 
515.5(b)(1), (2).

[64 FR 11171, Mar. 8, 1999, as amended at 65 FR 15254, Mar. 22, 2000; 67 
FR 39860, June 11, 2002; 72 FR 44978, Aug. 10, 2007]



Sec. 515.13  Investigation of applicants.

    The Commission shall conduct an investigation of the applicant's 
qualifications for a license. Such investigations may address:
    (a) The accuracy of the information submitted in the application;
    (b) The integrity and financial responsibility of the applicant;
    (c) The character of the applicant and its qualifying individual; 
and
    (d) The length and nature of the qualifying individual's experience 
in handling ocean transportation intermediary duties.

[[Page 146]]



Sec. 515.14  Issuance and use of license.

    (a) Qualification necessary for issuance. The Commission will issue 
a license if it determines, as a result of its investigation, that the 
applicant possesses the necessary experience and character to render 
ocean transportation intermediary services and has filed the required 
bond, insurance or other surety.
    (b) To whom issued. The Commission will issue a license only in the 
name of the applicant, whether the applicant is a sole proprietorship, a 
partnership, or a corporation. A license issued to a sole proprietor 
doing business under a trade name shall be in the name of the sole 
proprietor, indicating the trade name under which the licensee will be 
conducting business. Only one license shall be issued to any applicant 
regardless of the number of names under which such applicant may be 
doing business, and except as otherwise provided in this part, such 
license is limited exclusively to use by the named licensee and shall 
not be transferred without prior Commission approval to another person.



Sec. 515.15  Denial of license.

    If the Commission determines, as a result of its investigation, that 
the applicant:
    (a) Does not possess the necessary experience or character to render 
intermediary services;
    (b) Has failed to respond to any lawful inquiry of the Commission; 
or
    (c) Has made any materially false or misleading statement to the 
Commission in connection with its application; then, a letter of intent 
to deny the application shall be sent to the applicant by certified U.S. 
mail or other method reasonably calculated to provide actual notice, 
stating the reason(s) why the Commission intends to deny the 
application. If the applicant submits a written request for hearing on 
the proposed denial within twenty (20) days after receipt of 
notification, such hearing shall be granted by the Commission pursuant 
to its Rules of Practice and Procedure contained in part 502 of this 
chapter. Otherwise, denial of the application will become effective and 
the applicant shall be so notified by certified U.S. mail or other 
method reasonably calculated to provide actual notice.



Sec. 515.16  Revocation or suspension of license.

    (a) Grounds for revocation. Except for the automatic revocation for 
termination of proof of financial responsibility under Sec. 515.26, or 
as provided in Sec. 515.25(b), a license may be revoked or suspended 
after notice and an opportunity for a hearing for any of the following 
reasons:
    (1) Violation of any provision of the Act, or any other statute or 
Commission order or regulation related to carrying on the business of an 
ocean transportation intermediary;
    (2) Failure to respond to any lawful order or inquiry by the 
Commission;
    (3) Making a materially false or misleading statement to the 
Commission in connection with an application for a license or an 
amendment to an existing license;
    (4) Where the Commission determines that the licensee is not 
qualified to render intermediary services; or
    (5) Failure to honor the licensee's financial obligations to the 
Commission.
    (b) Notice of revocation. The Commission shall publish in the 
Federal Register a notice of each revocation.



Sec. 515.17  Application after revocation or denial.

    Whenever a license has been revoked or an application has been 
denied because the Commission has found the licensee or applicant to be 
not qualified to render ocean transportation intermediary services, any 
further application within 3 years of the Commission's notice of 
revocation or denial, made by such former licensee or applicant or by 
another applicant employing the same qualifying individual or controlled 
by persons on whose conduct the Commission based its determination for 
revocation or denial, shall be reviewed directly by the Commission.



Sec. 515.18  Changes in organization.

    (a) The following changes in an existing licensee's organization 
require prior approval of the Commission, and application for such 
status change or license transfer shall be made on Form FMC-18 Rev., 
filed in duplicate with the Commission's Bureau of Certification and 
Licensing, and accompanied by the fee required under Sec. 515.5(b)(2):

[[Page 147]]

    (1) Transfer of a corporate license to another person;
    (2) Change in ownership of a sole proprietorship;
    (3) Addition of one or more partners to a licensed partnership;
    (4) Any change in the business structure of a licensee from or to a 
sole proprietorship, partnership, or corporation, whether or not such 
change involves a change in ownership;
    (5) Any change in a licensee's name; or
    (6) Change in the identity or status of the designated qualifying 
individual, except as described in paragraphs (b) and (c) of this 
section.
    (b) Operation after death of sole proprietor. In the event the owner 
of a licensed sole proprietorship dies, the licensee's executor, 
administrator, heir(s), or assign(s) may continue operation of such 
proprietorship solely with respect to shipments for which the deceased 
sole proprietor had undertaken to act as an ocean transportation 
intermediary pursuant to the existing license, if the death is reported 
within 30 days to the Commission and to all principals and shippers for 
whom services on such shipments are to be rendered. The acceptance or 
solicitation of any other shipments is expressly prohibited until a new 
license has been issued. Applications for a new license by the executor, 
administrator, heir(s), or assign(s) shall be made on Form FMC-18 Rev., 
and shall be accompanied by the transfer fee required under Sec. 
515.5(b)(2).
    (c) Operation after retirement, resignation, or death of qualifying 
individual. When a partnership or corporation has been licensed on the 
basis of the qualifications of one or more of the partners or officers 
thereof, and such qualifying individual(s) no longer serve in a full-
time, active capacity with the firm, the licensee shall report such 
change to the Commission within 30 days. Within the same 30-day period, 
the licensee shall furnish to the Commission the name(s) and detailed 
intermediary experience of any other active managing partner(s) or 
officer(s) who may qualify the licensee. Such qualifying individual(s) 
must meet the applicable requirements set forth in Sec. 515.11(a). The 
licensee may continue to operate as an ocean transportation intermediary 
while the Commission investigates the qualifications of the newly 
designated partner or officer.
    (d) Incorporation of branch office. In the event a licensee's 
validly operating branch office becomes incorporated as a separate 
entity, the licensee may continue to operate such office pending receipt 
of a separate license, provided that:
    (1) The separately incorporated entity applies to the Commission for 
its own license within ten (10) days after incorporation, and
    (2) While the application is pending, the continued operation of the 
office is carried on as a bona fide branch office of the licensee, under 
its full control and responsibility, and not as an operation of the 
separately incorporated entity.
    (e) Acquisition of one or more additional licensees. In the event a 
licensee acquires one or more additional licensees, for the purpose of 
merger, consolidation, or control, the acquiring licensee shall advise 
the Commission of such change within 30 days after such change occurs by 
submitting in duplicate, an amended Form FMC-18, Rev. No application fee 
is required when reporting this change.
    (f) Optional method of filing Form FMC-18. In lieu of completing and 
filing Form FMC-18 in paper format, applications for approval of changes 
in organization, transfer of license, or changes in the identity or 
status of the designated qualifying individual required under this 
section may be completed and submitted to the Bureau of Certification 
and Licensing by using the automated FMC-18 filing system in accordance 
with the instructions found on the Commission's home page, http://
www.fmc.gov. A $250 fee for filing a new application and a $125 fee for 
filing an amended application will be assessed for filers using the 
automated FMC-18 filing system instead of the fees listed at Sec. 
515.5(b)(1), (2).

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 72 
FR 44978, Aug. 10, 2007]

[[Page 148]]



Sec. 515.19  Registration of foreign-based unlicensed NVOCC.

    (a) Any NVOCC whose primary place of business is located outside the 
United States and does not elect to become licensed by the Commission 
shall register with the Commission by submitting to the Director of the 
Bureau of Certification and Licensing (BCL) a completed registration 
form, Form FMC-65 (Foreign-based Unlicensed NVOCC Registration/Renewal). 
A notice of each registration shall be published on the Commission's Web 
site www.fmc.gov. It is a violation of the Commission's regulations 
implementing the Shipping Act for a foreign-based unlicensed non-vessel-
operating common carrier to provide NVOCC services in the U.S. foreign 
trade without a valid registration and an effective tariff.
    (b) A registration form which appears, upon submission, to be 
substantially incomplete may be rejected. If rejected, a notice, 
together with the reasons therefore, shall be sent to the foreign-based 
unlicensed NVOCC. Persons who have had a registration rejected may 
submit a new registration at any time.
    (c) Registrations are complete upon receipt of a registration form 
which meets the requirements of this section and upon evidence of 
financial responsibility being furnished pursuant to Sec. 515.21.
    (d) Registrations shall be effective for a period of three (3) 
years. Thereafter, registrations will be renewed for sequential three 
year periods upon submission of an updated registration form.
    (e) A tariff shall not be published and NVOCC service shall not 
commence until the Commission receives valid proof of financial 
responsibility from the registrant and a Form FMC-1 has been filed.
    (f) Registered NVOCCs must report in writing to BCL any changes, 
within 30 days of such changes, to: legal name(s) or trade name(s); 
principal place of business address (including telephone number, 
facsimile number); contact person and email address (including physical 
address if different from principal place of business); name of resident 
agent(s) (including physical address, mailing address, email address, 
telephone and facsimile number(s), and contact person) in the United 
States for receipt of service of judicial and administrative process 
(including subpoenas).
    (g) Termination or suspension of registration.
    (1) Grounds. A registration shall become automatically ineffective 
for a failure of a registered NVOCC to maintain proof of financial 
responsibility on file with the Commission. The effectiveness of such a 
registration may otherwise be terminated or suspended, after notice and 
the opportunity for a hearing, for any of the following reasons:
    (i) Violation of any provision of the Act, or any other statute or 
Commission order or regulation related to carrying on the business of an 
ocean transportation intermediary;
    (ii) Failure to respond to any lawful order or inquiry by the 
Commission or an authorized Commission representative;
    (iii) Making a materially false or misleading statement to the 
Commission in connection with a registration or renewal thereof;
    (iv) Failure to honor financial obligations to the Commission;
    (v) Failure to timely renew a registration;
    (vi) Failure to maintain a Form FMC-1 or a tariff in compliance with 
46 CFR part 520;
    (vii) Knowingly and willfully processing, booking, or accepting 
cargo from, or transporting cargo for the account of, an NVOCC that is 
not licensed or registered, or has not provided proof of financial 
responsibility or published an effective tariff; and
    (viii) Failure to designate and maintain a person in the United 
Stated as legal agent for the receipt of judicial and administrative 
process, including subpoenas, as required by Sec. 515.24.
    (2) [Reserved]
    (3) Publication of Notice. The Commission shall publish on the 
Commission's Web site, www.fmc.gov, a notice of each termination or 
suspension.

[78 FR 42887, July 18, 2013]

[[Page 149]]



 Subpart C_Financial Responsibility Requirements; Claims Against Ocean 
                      Transportation Intermediaries



Sec. 515.21  Financial responsibility requirements.

    (a) Form and amount. Except as otherwise provided in this part, no 
person may operate as an ocean transportation intermediary unless that 
person furnishes a bond, proof of insurance, or other surety in a form 
and amount determined by the Commission to insure financial 
responsibility. The bond, insurance or other surety covers the 
transportation-related activities of an ocean transportation 
intermediary only when acting as an ocean transportation intermediary.
    (1) Any person operating in the United States as an ocean freight 
forwarder as defined by Sec. 515.2(o)(1) shall furnish evidence of 
financial responsibility in the amount of $50,000.
    (2) Any person operating in the United States as an NVOCC as defined 
by Sec. 515.2(o)(2) shall furnish evidence of financial responsibility 
in the amount of $75,000.
    (3) Any unlicensed foreign-based entity, not operating in the United 
States as defined in Sec. 515.3, providing ocean transportation 
intermediary services for transportation to or from the United States, 
shall furnish evidence of financial responsibility in the amount of 
$150,000. Such foreign entity will be held strictly responsible 
hereunder for the acts or omissions of its agent in the United States.
    (4) The amount of the financial responsibility required to be 
furnished by any entity pursuant to paragraphs (a)(1) or (a)(2) of this 
section shall be increased by $10,000 for each of the applicant's 
unincorporated branch offices.
    (b) Group financial responsibility. Where a group or association of 
ocean transportation intermediaries accepts liability for an ocean 
transportation intermediary's financial responsibility for such ocean 
transportation intermediary's transportation-related activities under 
the Act, the group or association of ocean transportation intermediaries 
must file either a group supplemental coverage bond form, insurance form 
or guaranty form, clearly identifying each ocean transportation 
intermediary covered, before a covered ocean transportation intermediary 
may provide ocean transportation intermediary services. In such cases a 
group or association must establish financial responsibility in an 
amount equal to the lesser of the amount required by paragraph (a) of 
this section for each member or $3,000,000 in aggregate. A group or 
association of ocean transportation intermediaries may also file an 
optional bond rider as provided for by Sec. 515.25(c).
    (c) Common trade name. Where more than one person operates under a 
common trade name, separate proof of financial responsibility is 
required covering each corporation or person separately providing ocean 
transportation intermediary services.
    (d) Federal military and civilian household goods. Any person which 
exclusively transports used household goods and personal effects for the 
account of the Department of Defense, or for the account of the federal 
civilian executive agencies shipping under the International Household 
Goods Program administered by the General Services Administration, or 
both, is not subject to the requirements of subpart C of this part, but 
may be subject to other requirements, such as alternative surety 
bonding, imposed by the Department of Defense, or the General Services 
Administration.

[64 FR 11171, Mar. 8, 1999, as amended at 69 FR 17945, Apr. 6, 2004]



Sec. 515.22  Proof of financial responsibility.

    Prior to the date it commences furnishing ocean transportation 
intermediary services, every ocean transportation intermediary shall 
establish its financial responsibility for the purpose of this part by 
one of the following methods:
    (a) Surety bond, by filing with the Commission a valid bond on Form 
FMC-48. Bonds must be issued by a surety company found acceptable by the 
Secretary of the Treasury;
    (b) Insurance, by filing with the Commission evidence of insurance 
on Form FMC-67. The insurance must provide coverage for damages, 
reparations or

[[Page 150]]

penalties arising from any transportation-related activities under the 
Act of the insured ocean transportation intermediary. This evidence of 
financial responsibility shall be accompanied by: in the case of a 
financial rating, the Insurer's financial rating on the rating 
organization's letterhead or designated form; in the case of insurance 
provided by Underwriters at Lloyd's, documentation verifying membership 
in Lloyd's; and in the case of insurance provided by surplus lines 
insurers, documentation verifying inclusion on a current ``white list'' 
issued by the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners. The Insurer must certify that it 
has sufficient and acceptable assets located in the United States to 
cover all damages arising from the transportation-related activities of 
the insured ocean transportation intermediary as specified under the 
Act. The insurance must be placed with:
    (1) An Insurer having a financial rating of Class V or higher under 
the Financial Size Categories of A.M. Best & Company, or equivalent from 
an acceptable international rating organization;
    (2) Underwriters at Lloyd's; or
    (3) Surplus lines insurers named on a current ``white list'' issued 
by the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners; or
    (c) Guaranty, by filing with the Commission evidence of guaranty on 
Form FMC-68. The guaranty must provide coverage for damages, reparations 
or penalties arising from any transportation-related activities under 
the Act of the covered ocean transportation intermediary. This evidence 
of financial responsibility shall be accompanied by: in the case of a 
financial rating, the Guarantor's financial rating on the rating 
organization's letterhead or designated form; in the case of a guaranty 
provided by Underwriters at Lloyd's, documentation verifying membership 
in Lloyd's; and in the case of a guaranty provided by surplus lines 
insurers, documentation verifying inclusion on a current ``white list'' 
issued by the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners. The Guarantor must certify that 
it has sufficient and acceptable assets located in the United States to 
cover all damages arising from the transportation-related activities of 
the covered ocean transportation intermediary as specified under the 
Act. The guaranty must be placed with:
    (1) A Guarantor having a financial rating of Class V or higher under 
the Financial Size Categories of A.M. Best & Company, or equivalent from 
an acceptable international rating organization;
    (2) Underwriters at Lloyd's; or
    (3) Surplus lines insurers named on a current ``white list'' issued 
by the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners; or
    (d) Evidence of financial responsibility of the type provided for in 
paragraphs (a), (b) and (c) of this section established through and 
filed with the Commission by a group or association of ocean 
transportation intermediaries on behalf of its members, subject to the 
following conditions and procedures:
    (1) Each group or association of ocean transportation intermediaries 
shall notify the Commission of its intention to participate in such a 
program and furnish documentation as will demonstrate its authenticity 
and authority to represent its members, such as articles of 
incorporation, bylaws, etc.;
    (2) Each group or association of ocean transportation intermediaries 
shall provide the Commission with a list certified by its Chief 
Executive Officer containing the names of those ocean transportation 
intermediaries to which it will provide coverage; the manner and amount 
of existing coverage each covered ocean transportation intermediary has; 
an indication that the existing coverage provided each ocean 
transportation intermediary is provided by a surety bond issued by a 
surety company found acceptable to the Secretary of the Treasury, or by 
insurance or guaranty issued by a firm meeting the requirements of 
paragraphs (b) or (c) of this section with coverage limits specified 
above in Sec. 515.21; and the name, address and facsimile number of 
each surety, insurer

[[Page 151]]

or guarantor providing coverage pursuant to this section. Each group or 
association of ocean transportation intermediaries or its financial 
responsibility provider shall notify the Commission within 30 days of 
any changes to its list;
    (3) The group or association shall provide the Commission with a 
sample copy of each type of existing financial responsibility coverage 
used by member ocean transportation intermediaries;
    (4) Each group or association of ocean transportation intermediaries 
shall be responsible for ensuring that each member's financial 
responsibility coverage allows for claims to be made in the United 
States against the Surety, Insurer or Guarantor for any judgment for 
damages against the ocean transportation intermediary arising from its 
transportation-related activities under the Act, or order for 
reparations issued pursuant to section 11 of the Act (46 U.S.C. 41301-
41302, 41305-41307(a)), or any penalty assessed against the ocean 
transportation intermediary pursuant to section 13 of the Act (46 U.S.C. 
41107-41109). Each group or association of ocean transportation 
intermediaries shall be responsible for requiring each member ocean 
transportation intermediary to provide it with valid proof of financial 
responsibility annually;
    (5) Where the group or association of ocean transportation 
intermediaries determines to secure on behalf of its members other forms 
of financial responsibility, as specified by this section, for damages, 
reparations or penalties not covered by a member's individual financial 
responsibility coverage, such additional coverage must:
    (i) Allow claims to be made in the United States directly against 
the group or association's Surety, Insurer or Guarantor for damages 
against each covered member ocean transportation intermediary arising 
from each covered member ocean transportation intermediary's 
transportation-related activities under the Act, or order for 
reparations issued pursuant to section 11 of the Act (46 U.S.C. 41301-
41302, 41305-41307(a)), or any penalty assessed against each covered 
member ocean transportation intermediary pursuant to section 13 of the 
Act (46 U.S.C. 41107-41109); and
    (ii) Be for an amount up to the amount determined in accordance with 
Sec. 515.21(b), taking into account a member's individual financial 
responsibility coverage already in place. In the event of a claim 
against a group bond, the bond must be replenished up to the original 
amount of coverage within 30 days of payment of the claim; and
    (iii) be in excess of a member's individual financial responsibility 
coverage already in place; and
    (6) The coverage provided by the group or association of ocean 
transportation intermediaries on behalf of its members shall be provided 
by:
    (i) in the case of a surety bond, a surety company found acceptable 
to the Secretary of the Treasury and issued by such a surety company on 
Form FMC-69; and
    (ii) in the case of insurance and guaranty, a firm having a 
financial rating of Class V or higher under the Financial Size 
Categories of A.M. Best & Company or equivalent from an acceptable 
international rating organization, Underwriters at Lloyd's, or surplus 
line insurers named on a current ``white list'' issued by the Non-
Admitted Insurers' Information Office of the National Association of 
Insurance Commissioners and issued by such firms on Form FMC-67 and Form 
FMC-68, respectively.
    (e) All forms and documents for establishing financial 
responsibility of ocean transportation intermediaries prescribed in this 
section shall be submitted to the Director, Bureau of Certification and 
Licensing, Federal Maritime Commission, Washington, DC 20573. Such forms 
and documents must clearly identify the name; trade name, if any; and 
the address of each ocean transportation intermediary.

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 74 
FR 50719, Oct. 1, 2009]



Sec. 515.23  Claims against an ocean transportation intermediary.

    The Commission or another party may seek payment from the bond, 
insurance, or other surety that is obtained by an ocean transportation

[[Page 152]]

intermediary pursuant to this section. (See also Sec. 545.3 of this 
chapter.)
    (a) Payment pursuant to Commission order. If the Commission issues 
an order for reparation pursuant to sections 11 (46 U.S.C. 41301-41302, 
41305-41307(a)) or 14 (46 U.S.C. 41304, 41308-41309) of the Act, or 
assesses a penalty pursuant to section 13 of the Act (46 U.S.C. 41107-
41109), a bond, insurance, or other surety shall be available to pay 
such order or penalty.
    (b) Payment pursuant to a claim. (1) If a party does not file a 
complaint with the Commission pursuant to section 11 of the Act (46 
U.S.C. 41301-41302, 41305-41307(a)), but otherwise seeks to pursue a 
claim against an ocean transportation intermediary bond, insurance or 
other surety for damages arising from its transportation-related 
activities, it shall attempt to resolve its claim with the financial 
responsibility provider prior to seeking payment on any judgment for 
damages obtained. When a claimant seeks payment under this section, it 
simultaneously shall notify both the financial responsibility provider 
and the ocean transportation intermediary of the claim by certified 
mail, return receipt requested. The bond, insurance, or other surety may 
be available to pay such claim if:
    (i) The ocean transportation intermediary consents to payment, 
subject to review by the financial responsibility provider; or
    (ii) The ocean transportation intermediary fails to respond within 
forty-five (45) days from the date of the notice of the claim to address 
the validity of the claim, and the financial responsibility provider 
deems the claim valid.
    (2) If the parties fail to reach an agreement in accordance with 
paragraph (b)(1) of this section within ninety (90) days of the date of 
the initial notification of the claim, the bond, insurance, or other 
surety shall be available to pay any final judgment for damages obtained 
from an appropriate court. The financial responsibility provider shall 
pay such judgment for damages only to the extent they arise from the 
transportation-related activities of the ocean transportation 
intermediary ordinarily within 30 days, without requiring further 
evidence related to the validity of the claim; it may, however, inquire 
into the extent to which the judgment for damages arises from the ocean 
transportation intermediary's transportation-related activities.
    (c) The Federal Maritime Commission shall not serve as depository or 
distributor to third parties of bond, guaranty, or insurance funds in 
the event of any claim, judgment, or order for reparation.
    (d) Optional bond riders. The Federal Maritime Commission shall not 
serve as a depository or distributor to third parties of funds payable 
pursuant to optional bond riders described in Sec. 515.25(c).

[64 FR 11171, Mar. 8, 1999, as amended at 65 FR 26512, May 8, 2000; 65 
FR 33480, May 24, 2000; 69 FR 17945, Apr. 6, 2004; 74 FR 50719, Oct. 1, 
2009]



Sec. 515.24  Agent for service of process.

    (a) Every ocean transportation intermediary not located in the 
United States and every group or association of ocean transportation 
intermediaries not located in the United States which provides financial 
coverage for the financial responsibility of a member ocean 
transportation intermediary shall designate and maintain a person in the 
United States as legal agent for the receipt of judicial and 
administrative process, including subpoenas.
    (b) Service of administrative process, other than subpoenas, may be 
effected upon the legal agent by dispatching a copy of the document to 
be served by mail or courier service. Administrative subpoenas shall be 
served in accordance with Sec. 502.134 of this chapter.
    (c) If the designated legal agent cannot be served because of death, 
disability, unavailability, termination or expiration of the 
designation, or if a legal agent authorized to receive such service is 
not designated in compliance with this section, the Secretary of the 
Federal Maritime Commission will be deemed to be the legal agent for 
service of process. Any person serving the Secretary must also send to 
the ocean transportation intermediary, or group or association of ocean 
transportation intermediaries which provide financial coverage for the 
financial responsibilities of a member ocean transportation

[[Page 153]]

intermediary, by mail or courier service at the ocean transportation 
intermediary's, or group's, address published in its tariff, a copy of 
each document served upon the Secretary, and shall attest to that 
service at the time service is made upon the Secretary. For purposes of 
this paragraph, it is sufficient that a person seeking to serve process 
on an ocean transportation intermediary, or group of such 
intermediaries, affirm to the Commission's Secretary that: they have 
contacted, or attempted to contact, the designated agent to confirm 
whether it remained authorized to accept service of process; or, if no 
legal agent is designated in the tariff, that it has no knowledge of the 
identity of the ocean transportation intermediary's legal agent. 
Designation of the Commission's Secretary as the legal agent shall 
survive any cancellation of the OTI's license or tariff and shall 
continue for the entire period during which claims may be made under the 
OTI's financial responsibility instrument.
    (d) Designations of legal agent under paragraphs (a) and (b) of this 
section and provisions relating to service of process under paragraph 
(c) of this section shall be published in the ocean transportation 
intermediary's tariff, when required, in accordance with part 520 of 
this chapter.
    (e) Every ocean transportation intermediary using a group or 
association of ocean transportation intermediaries to cover its 
financial responsibility requirement under Sec. 515.21(b) shall publish 
the name and address of the group or association's resident agent for 
receipt of judicial and administrative process, including subpoenas, in 
its tariff, when required, in accordance with part 520 of this chapter.

[64 FR 11171, Mar. 8, 1999, as amended at 78 FR 42888, July 18, 2013]



Sec. 515.25  Filing of proof of financial responsibility.

    (a) Filing of proof of financial responsibility. Upon notification 
by the Commission by certified U.S. mail or other method reasonably 
calculated to provide actual notice that the applicant has been approved 
for licensing, the applicant shall file with the Director of the 
Commission's Bureau of Certification and Licensing, proof of financial 
responsibility in the form and amount prescribed in Sec. 515.21. No 
tariff shall be published until a license is issued, if applicable, and 
proof of financial responsibility is provided. No license will be issued 
until the Commission is in receipt of valid proof of financial 
responsibility from the applicant. Should the applicant not file the 
requisite proof of financial responsibility within 120 days of 
notification, the Commission will consider the application to be 
invalid.
    (b) Branch offices. New proof of financial responsibility, or a 
rider to the existing proof of financial responsibility, increasing the 
amount of the financial responsibility in accordance with Sec. 
515.21(a)(4), shall be filed with the Commission prior to the date the 
licensee commences operation of any branch office. Failure to adhere to 
this requirement may result in revocation of the license.
    (c) Optional bond rider. Any NVOCC as defined by Sec. 515.2(o)(2), 
in addition to a bond meeting the requirements of Sec. 515.21(a)(2), 
may obtain and file with the Commission proof of an optional bond rider, 
as provided for in appendix E or appendix F of this part.

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 69 
FR 17945, Apr. 6, 2004; 72 FR 56273, Oct. 3, 2007]



Sec. 515.26  Termination of financial responsibility.

    No license shall remain in effect unless valid proof of financial 
responsibility is maintained on file with the Commission. Upon receipt 
of notice of termination of such financial responsibility, the 
Commission shall notify the concerned licensee by certified U.S. mail or 
other method reasonably calculated to provide actual notice, at its last 
known address, that the Commission shall, without hearing or other 
proceeding, revoke the license as of the termination date of the 
financial responsibility, unless the licensee shall have submitted valid 
replacement proof of financial responsibility before such termination 
date. Replacement financial responsibility must bear an effective date 
no later than the termination date of the expiring financial 
responsibility.

[[Page 154]]



Sec. 515.27  Proof of compliance.

    (a) No common carrier may transport cargo for the account of a 
shipper known by the carrier to be an NVOCC unless the carrier has 
determined that the NVOCC has a tariff and financial responsibility as 
required by sections 8 (46 U.S.C. 40501-40503) and 19 (46 U.S.C. 40901-
40904) of the Act.
    (b) A common carrier can obtain proof of an NVOCC's compliance with 
the tariff and financial responsibility requirements by:
    (1) Reviewing a copy of the tariff published by the NVOCC and in 
effect under part 520 of this chapter;
    (2) Consulting the Commission to verify that the NVOCC has filed 
evidence of its financial responsibility; or
    (3) Any other appropriate procedure, provided that such procedure is 
set forth in the carrier's tariff.
    (c) A common carrier that has employed the procedure prescribed in 
either paragraphs (b)(1) or (b)(2) of this section shall be deemed to 
have met its obligations under section 10(b)(11) of the Act (46 U.S.C. 
41104(11)), unless the common carrier knew that such NVOCC was not in 
compliance with the tariff and financial responsibility requirements.
    (d) The Commission will publish at its website, www.fmc.gov, a list 
of the locations of all carrier and conference tariffs, and a list of 
ocean transportation intermediaries who have furnished the Commission 
with evidence of financial responsibility, current as of the last date 
on which the list is updated. The Commission will update this list on a 
periodic basis.

[64 FR 11171, Mar. 8, 1999, as amended at 74 FR 50720, Oct. 1, 2009]



     Sec. Appendix A to Subpart C of Part 515--Ocean Transportation 
                 Intermediary (OTI) Bond Form [Form 48]

                               Form FMC-48

                       Federal Maritime Commission

    Ocean Transportation Intermediary (OTI) Bond (Section 19, Shipping 
Act of 1984 (46 U.S.C. 40901-40904) and the Coast Guard Authorization 
Act of 1998)
--------------------[indicate whether NVOCC or Freight Forwarder], as 
Principal (hereinafter ``Principal''), and --------------------, as 
Surety (hereinafter ``Surety'') are held and firmly bound unto the 
United States of America in the sum of $-------------------- for the 
payment of which sum we bind ourselves, our heirs, executors, 
administrators, successors and assigns, jointly and severally.
    Whereas, Principal operates as an OTI in the waterborne foreign 
commerce of the United States in accordance with the Shipping Act of 
1984, as amended by the Ocean Shipping Reform Act of 1998 and the Coast 
Guard Authorization Act of 1998 (``1984 Act''), 46 U.S.C. 40102, and, if 
necessary, has a valid tariff published pursuant to 46 CFR part 515 and 
520, and pursuant to section 19 of the 1984 Act, files this bond with 
the Commission;
    Now, Therefore, The condition of this obligation is that the penalty 
amount of this bond shall be available to pay any judgment or any 
settlement made pursuant to a claim under 46 CFR Sec. 515.23(b) for 
damages against the Principal arising from the Principal's 
transportation-related activities or order for reparations issued 
pursuant to section 11 of the 1984 Act (46 U.S.C. 41301-41302, 41305-
41307(a)), or any penalty assessed against the Principal pursuant to 
section 13 of the 1984 Act (46 U.S.C. 41107-41109).
    This bond shall inure to the benefit of any and all persons who have 
obtained a judgment or a settlement made pursuant to a claim under 46 
CFR Sec. 515.23(b) for damages against the Principal arising from its 
transportation-related activities or order of reparation issued pursuant 
to section 11 of the 1984 Act, and to the benefit of the Federal 
Maritime Commission for any penalty assessed against the Principal 
pursuant to section 13 of the 1984 Act. However, the bond shall not 
apply to shipments of used household goods and personal effects for the 
account of the Department of Defense or the account of federal civilian 
executive agencies shipping under the International Household Goods 
Program administered by the General Services Administration.
    The liability of the Surety shall not be discharged by any payment 
or succession of payments hereunder, unless and until such payment or 
payments shall aggregate the penalty of this bond, and in no event shall 
the Surety's total obligation hereunder exceed said penalty regardless 
of the number of claims or claimants.
    This bond is effective the ------ day of --------------------, ----
------ and shall continue in effect until discharged or terminated as 
herein provided. The Principal or the Surety may at any time terminate 
this bond by written notice to the Federal Maritime Commission at its 
office in Washington, DC. Such termination shall become effective thirty 
(30) days after receipt of said notice by the Commission. The Surety 
shall not be liable for any transportation-related activities of the 
Principal after the expiration of the 30-day period but such termination 
shall

[[Page 155]]

not affect the liability of the Principal and Surety for any event 
occurring prior to the date when said termination becomes effective.
    The Surety consents to be sued directly in respect of any bona fide 
claim owed by Principal for damages, reparations or penalties arising 
from the transportation-related activities under the 1984 Act of 
Principal in the event that such legal liability has not been discharged 
by the Principal or Surety after a claimant has obtained a final 
judgment (after appeal, if any) against the Principal from a United 
States Federal or State Court of competent jurisdiction and has complied 
with the procedures for collecting on such a judgment pursuant to 46 CFR 
Sec. 515.23(b), the Federal Maritime Commission, or where all parties 
and claimants otherwise mutually consent, from a foreign court, or where 
such claimant has become entitled to payment of a specified sum by 
virtue of a compromise settlement agreement made with the Principal and/
or Surety pursuant to 46 CFR Sec. 515.23(b), whereby, upon payment of 
the agreed sum, the Surety is to be fully, irrevocably and 
unconditionally discharged from all further liability to such claimant; 
provided, however, that Surety's total obligation hereunder shall not 
exceed the amount set forth in 46 CFR Sec. 515.21, as applicable.
    The underwriting Surety will promptly notify the Director, Bureau of 
Certification and Licensing, Federal Maritime Commission, Washington, DC 
20573, of any claim(s) against this bond.
    Signed and sealed this ------ day of --------------------, --------
--.
(Please type name of signer under each signature.)

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

    Trade Name, If Any

________________________________________________________________________
Corporate Principal

________________________________________________________________________
State of Incorporation

    Trade Name, If Any

________________________________________________________________________
Business Address

________________________________________________________________________
By

________________________________________________________________________
Title

(Affix Corporate Seal)

________________________________________________________________________
Corporate Surety

________________________________________________________________________
Business Address

________________________________________________________________________
By

________________________________________________________________________
Title

(Affix Corporate Seal)

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 74 
FR 50720, Oct. 1, 2009]



     Sec. Appendix B to Subpart C of Part 515--Ocean Transportation 
               Intermediary (OTI) Insurance Form [Form 67]

                               Form FMC-67

                       Federal Maritime Commission

            Ocean Transportation Intermediary (OTI) Insurance

         Form Furnished as Evidence of Financial Responsibility

                       Under 46 U.S.C. 40901-40904

    This is to certify, that the (Name of Insurance Company), 
(hereinafter ``Insurer'') of (Home Office Address of Company) has issued 
to (OTI or Group or Association of OTIs [indicate whether NVOCC(s) or 
Freight Forwarder(s)]) (hereinafter ``Insured'') of (Address of OTI or 
Group or Association of OTIs) a policy or policies of insurance for 
purposes of complying with the provisions of 46 U.S.C. 40901-40904 and 
the rules and regulations, as amended, of the Federal Maritime 
Commission, which provide compensation for damages, reparations or 
penalties arising from the transportation-related activities of Insured, 
and made pursuant to the Shipping Act of 1984, as amended by the Ocean 
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of 
1998 (``1984 Act'').
    Whereas, the Insured is or may become an OTI subject to the 1984 Act 
(46 U.S.C. 40101-41309) and the rules and regulations of the Federal 
Maritime Commission, or is or may become a group or association of OTIs, 
and desires to establish financial responsibility in accordance with 
section 19 of the 1984 Act, files with the Commission this Insurance 
Form as evidence of its financial responsibility and evidence of a 
financial rating for the Insurer of Class V or higher under the 
Financial Size Categories of A.M. Best & Company or equivalent from an 
acceptable international rating organization on such organization's 
letterhead or designated form, or, in the case of insurance provided by 
Underwriters at Lloyd's, documentation verifying

[[Page 156]]

membership in Lloyd's, or, in the case of surplus lines insurers, 
documentation verifying inclusion on a current ``white list'' issued by 
the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners.
    Whereas, the Insurance is written to assure compliance by the 
Insured with section 19 of the 1984 Act (46 U.S.C. 40901-40904), and the 
rules and regulations of the Federal Maritime Commission relating to 
evidence of financial responsibility for OTIs, this Insurance shall be 
available to pay any judgment obtained or any settlement made pursuant 
to a claim under 46 CFR Sec. 515.23(b) for damages against the Insured 
arising from the Insured's transportation-related activities under the 
1984 Act, or order for reparations issued pursuant to section 11 of the 
1984 Act (46 U.S.C. 41301-41302, 41305-41307(a)), or any penalty 
assessed against the Insured pursuant to section 13 of the 1984 Act (46 
U.S.C. 41107-41109); provided, however, that Insurer's obligation for a 
group or association of OTIs shall extend only to such damages, 
reparations or penalties described herein as are not covered by another 
insurance policy, guaranty or surety bond held by the OTI(s) against 
which a claim or final judgment has been brought and that Insurer's 
total obligation hereunder shall not exceed the amount per OTI set forth 
in 46 CFR Sec. 515.21 or the amount per group or association of OTIs 
set forth in 46 CFR Sec. 515.21 in aggregate.
    Whereas, the Insurer certifies that it has sufficient and acceptable 
assets located in the United States to cover all liabilities of Insured 
herein described, this Insurance shall inure to the benefit of any and 
all persons who have a bona fide claim against the Insured pursuant to 
46 CFR Sec. 515.23(b) arising from its transportation-related 
activities under the 1984 Act, or order of reparation issued pursuant to 
section 11 of the 1984 Act, and to the benefit of the Federal Maritime 
Commission for any penalty assessed against the Insured pursuant to 
section 13 of the 1984 Act.
    The Insurer consents to be sued directly in respect of any bona fide 
claim owed by Insured for damages, reparations or penalties arising from 
the transportation-related activities under the 1984 Act, of Insured in 
the event that such legal liability has not been discharged by the 
Insured or Insurer after a claimant has obtained a final judgment (after 
appeal, if any) against the Insured from a United States Federal or 
State Court of competent jurisdiction and has complied with the 
procedures for collecting on such a judgment pursuant to 46 CFR Sec. 
515.23(b), the Federal Maritime Commission, or where all parties and 
claimants otherwise mutually consent, from a foreign court, or where 
such claimant has become entitled to payment of a specified sum by 
virtue of a compromise settlement agreement made with the Insured and/or 
Insurer pursuant to 46 CFR Sec. 515.23(b), whereby, upon payment of the 
agreed sum, the Insurer is to be fully, irrevocably and unconditionally 
discharged from all further liability to such claimant; provided, 
however, that Insurer's total obligation hereunder shall not exceed the 
amount per OTI set forth in 46 CFR Sec. 515.21 or the amount per group 
or association of OTIs set forth in 46 CFR Sec. 515.21.
    The liability of the Insurer shall not be discharged by any payment 
or succession of payments hereunder, unless and until such payment or 
payments shall aggregate the penalty of the Insurance in the amount per 
member OTI set forth in 46 CFR Sec. 515.21 or the amount per group or 
association of OTIs set forth in 46 CFR Sec. 515.21, regardless of the 
financial responsibility or lack thereof, or the solvency or bankruptcy, 
of Insured.
    The insurance evidenced by this undertaking shall be applicable only 
in relation to incidents occurring on or after the effective date and 
before the date termination of this undertaking becomes effective. The 
effective date of this undertaking shall be ------ day of --------------
------, ----------, and shall continue in effect until discharged or 
terminated as herein provided. The Insured or the Insurer may at any 
time terminate the Insurance by filing a notice in writing with the 
Federal Maritime Commission at its office in Washington, D.C. Such 
termination shall become effective thirty (30) days after receipt of 
said notice by the Commission. The Insurer shall not be liable for any 
transportation-related activities under the 1984 Act of the Insured 
after the expiration of the 30-day period but such termination shall not 
affect the liability of the Insured and Insurer for such activities 
occurring prior to the date when said termination becomes effective.
    Insurer or Insured shall immediately give notice to the Federal 
Maritime Commission of all lawsuits filed, judgments rendered, and 
payments made under the insurance policy.
    (Name of Agent) -------------------- domiciled in the United States, 
with offices located in the United States, at -------------------- is 
hereby designated as the Insurer's agent for service of process for the 
purposes of enforcing the Insurance certified to herein.
    If more than one insurer joins in executing this document, that 
action constitutes joint and several liability on the part of the 
insurers.
    The Insurer will promptly notify the Director, Bureau of 
Certification and Licensing, Federal Maritime Commission, Washington, 
D.C. 20573, of any claim(s) against the Insurance.
    Signed and sealed this ---------- day of --------------------, ----
------.
________________________________________________________________________

[[Page 157]]

Signature of Official signing on behalf of Insurer
________________________________________________________________________
Type Name and Title of signer
    This Insurance Form has been filed with the Federal Maritime 
Commission.

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 74 
FR 50720, Oct. 1, 2009]



     Sec. Appendix C to Subpart C of Part 515--Ocean Transportation 
               Intermediary (OTI) Guaranty Form [Form 68]

                               Form FMC-68

                       Federal Maritime Commission

    Guaranty in Respect of Ocean Transportation Intermediary (OTI) 
Liability for Damages, Reparations or Penalties Arising from 
Transportation-Related Activities Under the Shipping Act of 1984, as 
amended by the Ocean Shipping Reform Act of 1998 and the Coast Guard 
Authorization Act of 1998
    1. Whereas -------------------------------------- (Name of Applicant 
[indicate whether NVOCC or Freight Forwarder]) (hereinafter 
``Applicant'') is or may become an Ocean Transportation Intermediary 
(``OTI'') subject to the Shipping Act of 1984, as amended by the Ocean 
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of 
1998 (``1984 Act'') (46 U.S.C. 40101-41309) and the rules and 
regulations of the Federal Maritime Commission (``FMC''), or is or may 
become a group or association of OTIs, and desires to establish its 
financial responsibility in accordance with section 19 of the 1984 Act, 
then, provided that the FMC shall have accepted, as sufficient for that 
purpose, the Applicant's application, supported by evidence of a 
financial rating for the Guarantor of Class V or higher under the 
Financial Size Categories of A.M. Best & Company or equivalent from an 
acceptable international rating organization on such rating 
organization's letterhead or designated form, or, in the case of 
Guaranty provided by Underwriters at Lloyd's, documentation verifying 
membership in Lloyd's, or, in the case of surplus lines insurers, 
documentation verifying inclusion on a current ``white list'' issued by 
the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners, the undersigned Guarantor 
certifies that it has sufficient and acceptable assets located in the 
United States to cover all damages arising from the transportation-
related activities of the covered OTI as specified under the 1984 Act.
    2. Now, Therefore, The condition of this obligation is that the 
penalty amount of this Guaranty shall be available to pay any judgment 
obtained or any settlement made pursuant to a claim under 46 CFR Sec. 
515.23(b) for damages against the Applicant arising from the Applicant's 
transportation-related activities or order for reparations issued 
pursuant to section 11 of the 1984 Act (46 U.S.C. 41301-41302, 41305-
41307(a)), or any penalty assessed against the Principal pursuant to 
section 13 of the 1984 Act (46 U.S.C. 41107-41109).
    3. The undersigned Guarantor hereby consents to be sued directly in 
respect of any bona fide claim owed by Applicant for damages, 
reparations or penalties arising from Applicant's transportation-related 
activities under the 1984 Act, in the event that such legal liability 
has not been discharged by the Applicant after any such claimant has 
obtained a final judgment (after appeal, if any) against the Applicant 
from a United States Federal or State Court of competent jurisdiction 
and has complied with the procedures for collecting on such a judgment 
pursuant to 46 CFR Sec. 515.23(b), the FMC, or where all parties and 
claimants otherwise mutually consent, from a foreign court, or where 
such claimant has become entitled to payment of a specified sum by 
virtue of a compromise settlement agreement made with the Applicant and/
or Guarantor pursuant to 46 CFR Sec. 515.23(b), whereby, upon payment 
of the agreed sum, the Guarantor is to be fully, irrevocably and 
unconditionally discharged from all further liability to such claimant. 
In the case of a guaranty covering the liability of a group or 
association of OTIs, Guarantor's obligation extends only to such 
damages, reparations or penalties described herein as are not covered by 
another insurance policy, guaranty or surety bond held by the OTI(s) 
against which a claim or final judgment has been brought.
    4. The Guarantor's liability under this Guaranty in respect to any 
claimant shall not exceed the amount of the guaranty; and the aggregate 
amount of the Guarantor's liability under this Guaranty shall not exceed 
the amount per OTI set forth in 46 CFR Sec. 515.21 or the amount per 
group or association of OTIs set forth in 46 CFR Sec. 515.21 in 
aggregate.
    5. The Guarantor's liability under this Guaranty shall attach only 
in respect of such activities giving rise to a cause of action against 
the Applicant, in respect of any of its transportation-related 
activities under the 1984 Act, occurring after the Guaranty has become 
effective, and before the expiration date of this Guaranty, which shall 
be the date thirty (30) days after the date of receipt by FMC of notice 
in writing that either Applicant or the Guarantor has elected to 
terminate this Guaranty. The Guarantor and/or Applicant specifically 
agree to file such written notice of cancellation.
    6. Guarantor shall not be liable for payments of any of the damages, 
reparations or penalties hereinbefore described which arise as the 
result of any transportation-related

[[Page 158]]

activities of Applicant after the cancellation of the Guaranty, as 
herein provided, but such cancellation shall not affect the liability of 
the Guarantor for the payment of any such damages, reparations or 
penalties prior to the date such cancellation becomes effective.
    7. Guarantor shall pay, subject to the limit of the amount per OTI 
set forth in 46 CFR Sec. 515.21, directly to a claimant any sum or sums 
which Guarantor, in good faith, determines that the Applicant has failed 
to pay and would be held legally liable by reason of Applicant's 
transportation-related activities, or its legal responsibilities under 
the 1984 Act and the rules and regulations of the FMC, made by Applicant 
while this agreement is in effect, regardless of the financial 
responsibility or lack thereof, or the solvency or bankruptcy, of 
Applicant.
    8. Applicant or Guarantor shall immediately give written notice to 
the FMC of all lawsuits filed, judgments rendered, and payments made 
under the Guaranty.
    9. Applicant and Guarantor agree to handle the processing and 
adjudication of claims by claimants under the Guaranty established 
herein in the United States, unless by mutual consent of all parties and 
claimants another country is agreed upon. Guarantor agrees to appoint an 
agent for service of process in the United States.
    10. This Guaranty shall be governed by the laws in the State of -- 
to the extent not inconsistent with the rules and regulations of the 
FMC.
    11. This Guaranty is effective the day of ------ ,------------------
-- ,---------- 12:01 a.m., standard time at the address of the Guarantor 
as stated herein and shall continue in force until terminated as herein 
provided.
    12. The Guarantor hereby designates as the Guarantor's legal agent 
for service of process domiciled in the United States ------------------
--, with offices located in the United States at -------------------- , 
for the purposes of enforcing the Guaranty described herein.

________________________________________________________________________
(Place and Date of Execution)

________________________________________________________________________
(Type Name of Guarantor)

________________________________________________________________________
(Type Address of Guarantor)

By
________________________________________________________________________
 (Signature and Title)


[64 FR 11171, Mar. 8, 1999, as amended at 74 FR 50720, Oct. 1, 2009]



     Sec. Appendix D to Subpart C of Part 515--Ocean Transportation 
               Intermediary (OTI) Group Bond Form [FMC-69]

                               Form FMC-69

                       Federal Maritime Commission

    Ocean Transportation Intermediary (OTI) Group Supplemental Coverage 
Bond Form (Section 19, Shipping Act of 1984 (46 U.S.C. 40901-40904) and 
the Coast Guard Authorization Act of 1998)
    --------------------[indicate whether NVOCC or Freight Forwarder], 
as Principal (hereinafter ``Principal''), and --------------------------
-------------- as Surety (hereinafter ``Surety'') are held and firmly 
bound unto the United States of America in the sum of $----------------
-- for the payment of which sum we bind ourselves, our heirs, executors, 
administrators, successors and assigns, jointly and severally.
    Whereas, (Principal) -------------------- operates as a group or 
association of OTIs in the waterborne foreign commerce of the United 
States and pursuant to section 19 of the Shipping Act of 1984, as 
amended by the Ocean Shipping Reform Act of 1998 and the Coast Guard 
Authorization Act of 1998 (``1984 Act''), files this bond with the 
Federal Maritime Commission;
    Now, therefore, the conditions of this obligation are that the 
penalty amount of this bond shall be available to pay any judgment 
obtained or any settlement made pursuant to a claim under 46 CFR Sec. 
515.23(b) against the OTIs enumerated in Appendix A of this bond for 
damages arising from any or all of the identified OTIs' transportation-
related activities under the 1984 Act (46 U.S.C. 40101-41309), or order 
for reparations issued pursuant to section 11 of the 1984 Act (46 U.S.C. 
41301-41302, 41305-41307(a)), or any penalty assessed pursuant to 
section 13 of the 1984 Act (46 U.S.C. 41107-41109), that are not covered 
by the identified OTIs' individual insurance policy(ies), guaranty(ies) 
or surety bond(s).
    This bond shall inure to the benefit of any and all persons who have 
obtained a judgment or made a settlement pursuant to a claim under 46 
CFR Sec. 515.23(b) for damages against any or all of the OTIs 
identified in Appendix A not covered by said OTIs' insurance 
policy(ies), guaranty(ies) or surety bond(s) arising from said OTIs' 
transportation-related activities under the 1984 Act, or order for 
reparation issued pursuant to section 11 of the 1984 Act, and to the 
benefit of the Federal Maritime Commission for any penalty assessed 
against said OTIs pursuant to section 13 of the 1984 Act. However, the 
bond shall not apply to shipments of used household goods and personal 
effects for the account of the Department of Defense or the

[[Page 159]]

account of federal civilian executive agencies shipping under the 
International Household Goods Program administered by the General 
Services Administration.
    The Surety consents to be sued directly in respect of any bona fide 
claim owed by any or all of the OTIs identified in Appendix A for 
damages, reparations or penalties arising from the transportation-
related activities under the 1984 Act of the OTIs in the event that such 
legal liability has not been discharged by the OTIs or Surety after a 
claimant has obtained a final judgment (after appeal, if any) against 
the OTIs from a United States Federal or State Court of competent 
jurisdiction and has complied with the procedures for collecting on such 
a judgment pursuant to 46 CFR Sec. 515.23(b), the Federal Maritime 
Commission, or where all parties and claimants otherwise mutually 
consent, from a foreign court, or where such claimant has become 
entitled to payment of a specified sum by virtue of a compromise 
settlement agreement made with the OTIs and/or Surety pursuant to 46 CFR 
Sec. 515.23(b), whereby, upon payment of the agreed sum, the Surety is 
to be fully, irrevocably and unconditionally discharged from all further 
liability to such claimant.
    The liability of the Surety shall not be discharged by any payment 
or succession of payments hereunder, unless and until such payment or 
payments shall aggregate the penalty of this bond, and in no event shall 
the Surety's total obligation hereunder exceed the amount per member OTI 
set forth in 46 CFR Sec. 515.21 identified in Appendix A, or the amount 
per group or association of OTIs set forth in 46 CFR Sec. 515.21, 
regardless of the number of OTIs, claims or claimants.
    This bond is effective the ------ day of --------------------, ----
------, and shall continue in effect until discharged or terminated as 
herein provided. The Principal or the Surety may at any time terminate 
this bond by written notice to the Federal Maritime Commission at its 
office in Washington, DC. Such termination shall become effective thirty 
(30) days after receipt of said notice by the Commission. The Surety 
shall not be liable for any transportation-related activities of the 
OTIs identified in Appendix A as covered by the Principal after the 
expiration of the 30-day period, but such termination shall not affect 
the liability of the Principal and Surety for any transportation-related 
activities occurring prior to the date when said termination becomes 
effective.
    The Principal or financial responsibility provider will promptly 
notify the underwriting Surety and the Director, Bureau of Certification 
and Licensing, Federal Maritime Commission, Washington, DC 20573, of any 
additions, deletions or changes to the OTIs enumerated in Appendix A. In 
the event of additions to Appendix A, coverage will be effective upon 
receipt of such notice, in writing, by the Commission at its office in 
Washington, DC. In the event of deletions to Appendix A, termination of 
coverage for such OTI(s) shall become effective 30 days after receipt of 
written notice by the Commission. Neither the Principal nor the Surety 
shall be liable for any transportation-related activities of the OTI(s) 
deleted from Appendix A after the expiration of the 30-day period, but 
such termination shall not affect the liability of the Principal and 
Surety for any transportation-related activities of said OTI(s) 
occurring prior to the date when said termination becomes effective.
    The underwriting Surety will promptly notify the Director, Bureau of 
Certification and Licensing, Federal Maritime Commission, Washington, DC 
20573, of any claim(s) against this bond.
    Signed and sealed this ------------ day of --------------------, --
--------,
(Please type name of signer under each signature).

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

    Trade Name, if Any

________________________________________________________________________
Corporate Principal

________________________________________________________________________
Place of Incorporation

    Trade Name, if Any

________________________________________________________________________
Business Address (Affix Corporate Seal)

________________________________________________________________________
By

________________________________________________________________________
Title

________________________________________________________________________
Principal's Agent for Service of Process (Required if Principal is not a 
U.S. Corporation)

________________________________________________________________________
Agent's Address

________________________________________________________________________
Corporate Surety

________________________________________________________________________
Business Address (Affix Corporate Seal)

________________________________________________________________________
By

________________________________________________________________________

[[Page 160]]

Title

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 74 
FR 50721, Oct. 1, 2009]



Sec. Appendix E to Subpart C of Part 515--Optional Rider for Additional 
  NVOCC Financial Responsibility (Optional Rider to Form FMC-48) [FORM 
                                  48A]

                FMC-48A, OMB No. [3072-0018, (04/06/04)]

 Optional Rider for Additional NVOCC Financial Responsibility [Optional 
                          Rider to Form FMC-48]

                                  RIDER

    The undersigned [--------------------------------], as Principal and 
[--------------------------------], as Surety do hereby agree that the 
existing Bond No. [--------] to the United States of America and filed 
with the Federal Maritime Commission pursuant to section 19 of the 
Shipping Act of 1984 is modified as follows:
    1. The following condition is added to this Bond:
    a. An additional condition of this Bond is that $---------- (payable 
in U.S. Dollars or Renminbi Yuan at the option of the Surety) shall be 
available to pay any fines and penalties for activities in the U.S.-
China trades imposed by the Ministry of Communications of the People's 
Republic of China (``MOC'') or its authorized competent communications 
department of the people's government of the province, autonomous region 
or municipality directly under the Central Government or the State 
Administration of Industry and Commerce pursuant to the Regulations of 
the People's Republic of China on International Maritime Transportation 
and the Implementing Rules of the Regulations of the PRC on 
International Maritime Transportation promulgated by MOC Decree No. 1, 
January 20, 2003.
    b. The liability of the Surety shall not be discharged by any 
payment or succession of payments pursuant to section 1 of this Rider, 
unless and until the payment or payments shall aggregate the amount set 
forth in section 1a of this Rider. In no event shall the Surety's 
obligation under this Rider exceed the amount set forth in section 1a 
regardless of the number of claims.
    c. The total amount of coverage available under this Bond and all of 
its riders, available pursuant to the terms of section 1(a.) of this 
rider, equals $--------. The total amount of aggregate coverage equals 
or exceeds $125,000.
    d. This Rider is effective the [--------] day of [------------], 20 
[------------], and shall continue in effect until discharged, 
terminated as herein provided, or upon termination of the Bond in 
accordance with the sixth paragraph of the Bond. The Principal or the 
Surety may at any time terminate this Rider by written notice to the 
Federal Maritime Commission at its offices in Washington, DC, 
accompanied by proof of transmission of notice to MOC. Such termination 
shall become effective thirty (30) days after receipt of said notice and 
proof of transmission by the Federal Maritime Commission. The Surety 
shall not be liable for fines or penalties imposed on the Principal 
after the expiration of the 30-day period but such termination shall not 
affect the liability of the Principal and Surety for any fine or penalty 
imposed prior to the date when said termination becomes effective.
    2. This Bond remains in full force and effect according to its terms 
except as modified above.
    In witness whereof we have hereunto set our hands and seals on this 
[--------] day of [------------], 20 [--------],

[Principal], By:

[Surety], By:

[77 FR 51938, Aug. 28, 2012]



Sec. Appendix F to Subpart C of Part 515--Optional Rider for Additional 
 NVOCC Financial Responsibility for Group Bonds [Optional Rider to Form 
                                 FMC-69]

                  FMC-69A, OMB No. 3072-0018 (04/06/04)

 Optional Rider for Additional NVOCC Financial Responsibility for Group 
                  Bonds [Optional Rider to Form FMC-69]

                                  RIDER

    The undersigned [--------------------------], as Principal and [----
------------------------], as Surety do hereby agree that the existing 
Bond No. [------------] to the United States of America and filed with 
the Federal Maritime Commission pursuant to section 19 of the Shipping 
Act of 1984 is modified as follows:
    1. The following condition is added to this Bond:
    a. An additional condition of this Bond is that $ [--------](payable 
in U.S. Dollars or Renminbi Yuan at the option of the Surety) shall be 
available to any NVOCC enumerated in an Appendix to this Rider to pay 
any fines and penalties for activities in the U.S.-China trades imposed 
by the Ministry of Communications of the People's Republic of China 
(``MOC'') or its authorized competent communications department of the 
people's government of the province, autonomous region or municipality 
directly under the Central Government or the State Administration of 
Industry and Commerce pursuant to the Regulations of the People's 
Republic of China on International Maritime Transportation and

[[Page 161]]

the Implementing Rules of the Regulations of the PRC on International 
Maritime Transportation promulgated by MOC Decree No. 1, January 20, 
2003. Such amount is separate and distinct from the bond amount set 
forth in the first paragraph of this Bond. Payment under this Rider 
shall not reduce the bond amount in the first paragraph of this Bond or 
affect its availability. The Surety shall indicate that $50,000 is 
available to pay such fines and penalties for each NVOCC listed on 
appendix A to this Rider wishing to exercise this option.
    b. The liability of the Surety shall not be discharged by any 
payment or succession of payments pursuant to section 1 of this Rider, 
unless and until the payment or payments shall aggregate the amount set 
forth in section 1a of this Rider. In no event shall the Surety's 
obligation under this Rider exceed the amount set forth in section 1a 
regardless of the number of claims.
    c. This Rider is effective the [------------] day of [------------], 
200[------------], and shall continue in effect until discharged, 
terminated as herein provided, or upon termination of the Bond in 
accordance with the sixth paragraph of the Bond. The Principal or the 
Surety may at any time terminate this Rider by written notice to the 
Federal Maritime Commission at its offices in Washington, DC., 
accompanied by proof of transmission of notice to MOC. Such termination 
shall become effective thirty (30) days after receipt of said notice and 
proof of transmission by the Federal Maritime Commission. The Surety 
shall not be liable for fines or penalties imposed on the Principal 
after the expiration of the 30-day period but such termination shall not 
affect the liability of the Principal and Surety for any fine or penalty 
imposed prior to the date when said termination becomes effective.
    2. This Bond remains in full force and effect according to its terms 
except as modified above.
    In witness whereof we have hereunto set our hands and seals on this 
[------------] day of [------------], 200 [------------],
[Principal], :By
[Surety], By:

             Privacy Act and Paperwork Reduction Act Notice

    The collection of this information is authorized generally by 
Section 19 of the Shipping Act of 1984 (46 U.S.C. 40901-40904).
    This is an optional form. Submission is completely voluntary. 
Failure to submit this form will in no way impact the Federal Maritime 
Commission's assessment of your firm's financial responsibility.
    You are not required to provide the information requested on a form 
that is subject to the Paperwork Reduction Act unless the form displays 
a valid OMB control number. Copies of this form will be maintained until 
the corresponding license has been revoked.
    The time needed to complete and file this form will vary depending 
on individual circumstances. The estimated average time is: 
Recordkeeping, 20 minutes; Learning about the form, 20 minutes; 
Preparing and sending the form to the FMC, 20 minutes.
    If you have comments concerning the accuracy of these time estimates 
or suggestions for making this form simpler, we would be happy to hear 
from you. You can write to the Secretary, Federal Maritime Commission, 
800 North Capitol Street, NW., Washington, DC 20573-0001 or e-mail: 
secretary@fmc.gov.

[69 FR 17946, Apr. 6, 2004, as amended at 74 FR 50721, Oct. 1, 2009; 77 
FR 51939, Aug. 28, 2012]



     Subpart D_Duties and Responsibilities of Ocean Transportation 
                  Intermediaries; Reports to Commission



Sec. 515.31  General duties.

    (a) License; name and number. Each licensee shall carry on its 
business only under the name in which its license is issued and only 
under its license number as assigned by the Commission. When the 
licensee's name appears on shipping documents, its Commission license 
number shall also be included.
    (b) Stationery and billing forms. The name and license number of 
each licensee shall be permanently imprinted on the licensee's office 
stationery and billing forms. The Commission may temporarily waive this 
requirement for good cause shown if the licensee rubber stamps or types 
its name and Commission license number on all papers and invoices 
concerned with any ocean transportation intermediary transaction.
    (c) Use of license by others; prohibition. No licensee shall permit 
its license or name to be used by any person who is not a bona fide 
individual employee of the licensee. Unincorporated branch offices of 
the licensee may use the license number and name of the licensee if such 
branch offices:
    (1) have been reported to the Commission in writing; and
    (2) are covered by increased financial responsibility in accordance 
with Sec. 515.21(a)(4).
    (d) Arrangements with ocean transportation intermediaries whose 
licenses have

[[Page 162]]

been revoked. Unless prior written approval from the Commission has been 
obtained, no licensee shall, directly or indirectly:
    (1) Agree to perform ocean transportation intermediary services on 
shipments as an associate, correspondent, officer, employee, agent, or 
sub-agent of any person whose license has been revoked or suspended 
pursuant to Sec. 515.16;
    (2) Assist in the furtherance of any ocean transportation 
intermediary business of such person;
    (3) Share forwarding fees or freight compensation with any such 
person; or
    (4) Permit any such person, directly or indirectly, to participate, 
through ownership or otherwise, in the control or direction of the ocean 
transportation intermediary business of the licensee.
    (e) False or fraudulent claims, false information. No licensee shall 
prepare or file or assist in the preparation or filing of any claim, 
affidavit, letter of indemnity, or other paper or document concerning an 
ocean transportation intermediary transaction which it has reason to 
believe is false or fraudulent, nor shall any such licensee knowingly 
impart to a principal, shipper, common carrier or other person, false 
information relative to any ocean transportation intermediary 
transaction.
    (f) Errors and omissions of the principal or shipper. A licensee who 
has reason to believe that its principal or shipper has not, with 
respect to a shipment to be handled by such licensee, complied with the 
laws of the United States, or has made any error or misrepresentation 
in, or omission from, any export declaration, bill of lading, affidavit, 
or other document which the principal or shipper executes in connection 
with such shipment, shall advise its principal or shipper promptly of 
the suspected noncompliance, error, misrepresentation or omission, and 
shall decline to participate in any transaction involving such document 
until the matter is properly and lawfully resolved.
    (g) Response to requests of Commission. Upon the request of any 
authorized representative of the Commission, a licensee shall make 
available promptly for inspection or reproduction all records and books 
of account in connection with its ocean transportation intermediary 
business, and shall respond promptly to any lawful inquiries by such 
representative.
    (h) Express written authority. No licensee shall endorse or 
negotiate any draft, check, or warrant drawn to the order of its 
principal or shipper without the express written authority of such 
principal or shipper.
    (i) Accounting to principal or shipper. Each licensee shall account 
to its principal(s) or shipper(s) for overpayments, adjustments of 
charges, reductions in rates, insurance refunds, insurance monies 
received for claims, proceeds of C.O.D. shipments, drafts, letters of 
credit, and any other sums due such principal(s) or shipper(s).



Sec. 515.32  Freight forwarder duties.

    (a) Notice of shipper affiliation. When a licensed freight forwarder 
is a shipper or seller of goods in international commerce or affiliated 
with such an entity, the licensed freight forwarder shall have the 
option of:
    (1) Identifying itself as such and/or, where applicable, listing its 
affiliates on its office stationery and billing forms, or
    (2) Including the following notice on such items:

    This company is a shipper or seller of goods in international 
commerce or is affiliated with such an entity. Upon request, a general 
statement of its business activities and those of its affiliates, along 
with a written list of the names of such affiliates, will be provided.

    (b) Arrangements with unauthorized persons. No licensed freight 
forwarder shall enter into an agreement or other arrangement (excluding 
sales agency arrangements not prohibited by law or this part) with an 
unlicensed person that bestows any fee, compensation, or other benefit 
upon the unlicensed person. When a licensed freight forwarder is 
employed to perform forwarding services by the agent of the person 
responsible for paying for such services, the licensed freight forwarder 
shall also transmit a copy of its invoice for services rendered to the 
person paying those charges.
    (c) Information provided to the principal. No licensed freight 
forwarder

[[Page 163]]

shall withhold any information concerning a forwarding transaction from 
its principal, and each licensed freight forwarder shall comply with the 
laws of the United States and shall exercise due diligence to assure 
that all information provided to its principal or provided in any export 
declaration, bill of lading, affidavit, or other document which the 
licensed freight forwarder executes in connection with a shipment is 
accurate.
    (d) Invoices; documents available upon request. Upon the request of 
its principal(s), each licensed freight forwarder shall provide a 
complete breakout of its charges and a true copy of any underlying 
document or bill of charges pertaining to the licensed freight 
forwarder's invoice. The following notice shall appear on each invoice 
to a principal:

    Upon request, we shall provide a detailed breakout of the components 
of all charges assessed and a true copy of each pertinent document 
relating to these charges.



Sec. 515.33  Records required to be kept.

    Each licensed freight forwarder shall maintain in an orderly and 
systematic manner, and keep current and correct, all records and books 
of account in connection with its forwarding business. These records 
must be kept in the United States in such manner as to enable authorized 
Commission personnel to readily determine the licensed freight 
forwarder's cash position, accounts receivable and accounts payable. The 
licensed freight forwarder may maintain these records in either paper or 
electronic form, which shall be readily available in usable form to the 
Commission; the electronically maintained records shall be no less 
accessible than if they were maintained in paper form. These 
recordkeeping requirements are independent of the retention requirements 
of other federal agencies. The licensed freight forwarder must maintain 
the following records for a period of five years:
    (a) General financial data. A current running account of all 
receipts and disbursements, accounts receivable and payable, and daily 
cash balances, supported by appropriate books of account, bank deposit 
slips, canceled checks, and monthly reconciliation of bank statements.
    (b) Types of services by shipment. A separate file shall be 
maintained for each shipment. Each file shall include a copy of each 
document prepared, processed, or obtained by the licensee, including 
each invoice for any service arranged by the licensee and performed by 
others, with respect to such shipment.
    (c) Receipts and disbursements by shipment. A record of all sums 
received and/or disbursed by the licensee for services rendered and out-
of-pocket expenses advanced in connection with each shipment, including 
specific dates and amounts.
    (d) Special contracts. A true copy, or if oral, a true and complete 
memorandum, of every special arrangement or contract between a licensed 
freight forwarder and a principal, or modification or cancellation 
thereof. Bona fide shippers shall also have access to such records upon 
reasonable request.



Sec. 515.34  Regulated Persons Index.

    The Regulated Persons Index is a database containing the names, 
addresses, phone/fax numbers and financial responsibility information, 
where applicable, of Commission-regulated entities. The database may be 
purchased for $108 by contacting the Bureau of Certification and 
Licensing, Federal Maritime Commission, Washington, DC 20573. Contact 
information is listed on the Commission's website at www.fmc.gov.

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 70 
FR 10330, Mar. 3, 2005]



           Subpart E_Freight Forwarding Fees and Compensation



Sec. 515.41  Forwarder and principal; fees.

    (a) Compensation or fee sharing. No licensed freight forwarder shall 
share, directly or indirectly, any compensation or freight forwarding 
fee with a shipper, consignee, seller, or purchaser, or an agent, 
affiliate, or employee thereof; nor with any person advancing the 
purchase price of the property or guaranteeing payment therefor; nor

[[Page 164]]

with any person having a beneficial interest in the shipment.
    (b) Receipt for cargo. Each receipt for cargo issued by a licensed 
freight forwarder shall be clearly identified as ``Receipt for Cargo'' 
and be readily distinguishable from a bill of lading.
    (c) Special contracts. To the extent that special arrangements or 
contracts are entered into by a licensed freight forwarder, the 
forwarder shall not deny equal terms to other shippers similarly 
situated.
    (d) Reduced forwarding fees. No licensed freight forwarder shall 
render, or offer to render, any freight forwarding service free of 
charge or at a reduced fee in consideration of receiving compensation 
from a common carrier or for any other reason. Exception: A licensed 
freight forwarder may perform freight forwarding services for recognized 
relief agencies or charitable organizations, which are designated as 
such in the tariff of the common carrier, free of charge or at reduced 
fees.
    (e) In-plant arrangements. A licensed freight forwarder may place an 
employee or employees on the premises of its principal as part of the 
services rendered to such principal, provided:
    (1) The in-plant forwarder arrangement is reduced to writing in the 
manner of a special contract under Sec. 515.33(d), which shall identify 
all services provided by either party (whether or not constituting a 
freight forwarding service); state the amount of compensation to be 
received by either party for such services; set forth all details 
concerning the procurement, maintenance or sharing of office facilities, 
personnel, furnishings, equipment and supplies; describe all powers of 
supervision or oversight of the licensee's employee(s) to be exercised 
by the principal; and detail all procedures for the administration or 
management of in-plant arrangements between the parties; and
    (2) The arrangement is not an artifice for a payment or other 
unlawful benefit to the principal.



Sec. 515.42  Forwarder and carrier; compensation.

    (a) Disclosure of principal. The identity of the shipper must always 
be disclosed in the shipper identification box on the bill of lading. 
The licensed freight forwarder's name may appear with the name of the 
shipper, but the forwarder must be identified as the shipper's agent.
    (b) Certification required for compensation. A common carrier may 
pay compensation to a licensed freight forwarder only pursuant to such 
common carrier's tariff provisions. Where a common carrier's tariff 
provides for the payment of compensation, such compensation shall be 
paid on any shipment forwarded on behalf of others where the forwarder 
has provided a written certification as prescribed in paragraph (c) of 
this section and the shipper has been disclosed on the bill of lading as 
provided for in paragraph (a) of this section. The common carrier shall 
be entitled to rely on such certification unless it knows that the 
certification is incorrect. The common carrier shall retain such 
certifications for a period of five (5) years.
    (c) Form of certification. Where a licensed freight forwarder is 
entitled to compensation, the forwarder shall provide the common carrier 
with a signed certification which indicates that the forwarder has 
performed the required services that entitle it to compensation. The 
required certification may be placed on one copy of the relevant bill of 
lading, a summary statement from the forwarder, the forwarder's 
compensation invoice, or as an endorsement on the carrier's compensation 
check. Each forwarder shall retain evidence in its shipment files that 
the forwarder, in fact, has performed the required services enumerated 
on the certification. The certification shall read as follows:

    The undersigned hereby certifies that neither it nor any holding 
company, subsidiary, affiliate, officer, director, agent or executive of 
the undersigned has a beneficial interest in this shipment; that it is 
the holder of valid FMC License No., issued by the Federal Maritime 
Commission and has performed the following services:
    (1) Engaged, booked, secured, reserved, or contracted directly with 
the carrier or its agent for space aboard a vessel or confirmed the 
availability of that space; and
    (2) Prepared and processed the ocean bill of lading, dock receipt, 
or other similar document with respect to the shipment.


[[Page 165]]


    (d) Compensation pursuant to tariff provisions. No licensed freight 
forwarder, or employee thereof, shall accept compensation from a common 
carrier which is different from that specifically provided for in the 
carrier's effective tariff(s). No conference or group of common carriers 
shall deny in the export commerce of the United States compensation to 
an ocean freight forwarder or limit that compensation, as provided for 
by section 19(e)(4) of the Act (46 U.S.C. 40904(d)) and 46 CFR part 535.
    (e) Electronic data interchange. A licensed freight forwarder may 
own, operate, or otherwise maintain or supervise an electronic data 
interchange-based computer system in its forwarding business; however, 
the forwarder must directly perform value-added services as described in 
paragraph (c) of this section in order to be entitled to carrier 
compensation.
    (f) Compensation; services performed by underlying carrier; 
exemptions. No licensed freight forwarder shall charge or collect 
compensation in the event the underlying common carrier, or its agent, 
has, at the request of such forwarder, performed any of the forwarding 
services set forth in Sec. 515.2(i), unless such carrier or agent is 
also a licensed freight forwarder, or unless no other licensed freight 
forwarder is willing and able to perform such services.
    (g) Duplicative compensation. A common carrier shall not pay 
compensation for the services described in paragraph (c) of this section 
more than once on the same shipment.
    (h) Non-vessel-operating common carriers; compensation. (1) A 
licensee operating as an NVOCC and a freight forwarder, or a person 
related thereto, may collect compensation when, and only when, the 
following certification is made together with the certification required 
under paragraph (c) of this section:

    The undersigned certifies that neither it nor any related person has 
issued a bill of lading or otherwise undertaken common carrier 
responsibility as a non-vessel-operating common carrier for the ocean 
transportation of the shipment covered by this bill of lading.

    (2) Whenever a person acts in the capacity of an NVOCC as to any 
shipment, such person shall not collect compensation, nor shall any 
underlying ocean common carrier pay compensation to such person, for 
such shipment.
    (i) Compensation; beneficial interest. A licensed freight forwarder 
may not receive compensation from a common carrier with respect to any 
shipment in which the forwarder has a beneficial interest or with 
respect to any shipment in which any holding company, subsidiary, 
affiliate, officer, director, agent, or executive of such forwarder has 
a beneficial interest.

[64 FR 11171, Mar. 8, 1999, as amended at 74 FR 50721, Oct. 1, 2009]



Sec. 515.91  OMB control number assigned pursuant to the Paperwork 
Reduction Act.

    The Commission has received OMB approval for this collection of 
information 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. The valid control number for this 
collection of information is 3072-0018.

[64 FR 11171, Mar. 8, 1999, as amended at 78 FR 42888, July 18, 2013]



PART 520_CARRIER AUTOMATED TARIFFS--Table of Contents



Sec.
520.1 Scope and purpose.
520.2 Definitions.
520.3 Publication responsibilities.
520.4 Tariff contents.
520.5 Standard tariff terminology.
520.6 Retrieval of information.
520.7 Tariff limitations.
520.8 Effective dates.
520.9 Access to tariffs.
520.10 Integrity of tariffs.
520.11 Non-vessel-operating common carriers.
520.12 Time/Volume rates.
520.13 Exemptions and exceptions.
520.14 Special permission.
520.91 OMB control number assigned pursuant to the Paperwork Reduction 
          Act.

Appendix A to Part 520--Standard Terminology and Codes

    Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40101-40102, 40501-40503, 
40701-40706, 41101-41109.

[[Page 166]]


    Source: 64 FR 11225, Mar. 8, 1999, unless otherwise noted.



Sec. 520.1  Scope and purpose.

    (a) Scope. The regulations of this part govern the publication of 
tariffs in automated systems by common carriers and conferences in the 
waterborne foreign commerce of the United States. They cover the 
transportation of property by such carriers, including through 
transportation with inland carriers. They implement the tariff 
publication requirements of section 8 of the Shipping Act of 1984 (``the 
Act'') (46 U.S.C. 40501-40503), as modified by the Ocean Shipping Reform 
Act of 1998 and section 424 of Public Law 105-258.
    (b) Purpose. The requirements of this part are intended to permit:
    (1) Shippers and other members of the public to obtain reliable and 
useful information concerning the rates and charges that will be 
assessed by common carriers and conferences for their transportation 
services;
    (2) Carriers and conferences to meet their publication requirements 
pursuant to section 8 of the Act (46 U.S.C. 40501-40503);
    (3) The Commission to ensure that carrier tariff publications are 
accurate and accessible and to protect the public from violations by 
carriers of section 10 of the Act (46 U.S.C. 41101-41106); and
    (4) The Commission to review and monitor the activities of 
controlled carriers pursuant to section 9 of the Act (46 U.S.C. 40701-
40706).

[64 FR 11225, Mar. 8, 1999, as amended at 74 FR 50721, Oct. 1, 2009]



Sec. 520.2  Definitions.

    The following definitions shall apply to this part:
    Act means the Shipping Act of 1984, as amended by the Ocean Shipping 
Reform Act of 1998.
    Amendment means any change, alteration, correction or modification 
of an existing tariff.
    Assessorial charge means the amount that is added to the basic ocean 
freight rate.
    BTA means the Commission's Bureau of Trade Analysis or its successor 
bureau.
    Bulk cargo means cargo that is loaded and carried in bulk without 
mark or count in a loose unpackaged form, having homogeneous 
characteristics. Bulk cargo loaded into intermodal equipment, except 
LASH or Seabee barges, is subject to mark and count and is, therefore, 
subject to the requirements of this part.
    Co-loading means the combining of cargo by two or more NVOCCs for 
tendering to an ocean common carrier under the name of one or more of 
the NVOCCs.
    Combination rate means a rate for a shipment moving under intermodal 
transportation which is computed by the addition of a TRI, and an inland 
rate applicable from/to inland points not covered by the TRI.
    Commission means the Federal Maritime Commission.
    Commodity description means a comprehensive description of a 
commodity listed in a tariff, including a brief definition of the 
commodity.
    Commodity description number means a number that may be used to 
identify a commodity description.
    Commodity index means an index of the commodity descriptions 
contained in a tariff.
    Commodity rate means a rate for shipping to or from specific 
locations a commodity or commodities specifically named or described in 
the tariff in which the rate or rates are published.
    Common carrier means a person holding itself out to the general 
public to provide transportation by water of cargo between the United 
States and a foreign country for compensation that:
    (1) Assumes responsibility for the transportation from 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

[[Page 167]]

person primarily engaged in the marketing and distribution of those 
commodities and
    (ii) Only with respect to the carriage of those commodities.
    Conference 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, but the term does not include joint 
service, consortium, pooling, sailing, or transshipment agreements.
    Consignee means the recipient of cargo from a shipper; the person to 
whom a transported commodity is to be delivered.
    Container means a demountable and reusable freight-carrying unit 
designed to be transported by different modes of transportation and 
having construction, fittings, and fastenings able to withstand, without 
permanent distortion or additional exterior packaging or containment, 
the normal stresses that apply on continuous all-water and intermodal 
transportation. The term includes dry cargo, ventilated, insulated, 
refrigerated, flat rack, vehicle rack, liquid tank, and open-top 
containers without chassis, but does not include crates, boxes or 
pallets.
    Controlled carrier means an ocean common carrier that is, or whose 
operating assets are, directly or indirectly owned or controlled by a 
government; ownership or control by a government shall be deemed to 
exist with respect to any common carrier if:
    (1) A majority portion of the interest in the common carrier is 
owned or controlled in any manner by that government, by an agency 
thereof, or by any public or private person controlled in any manner by 
that government, by any agency thereof, or by any public or private 
person controlled by that government; or
    (2) That government has the right to appoint or disapprove the 
appointment of a majority of the directors, the chief operating officer 
or the chief executive officer of the common carrier.
    Effective date means the date upon which a published tariff or 
tariff element is scheduled to go into effect. Where there are multiple 
publications to a tariff element on the same day, the last element 
published with the same effective date is the one effective for that 
day.
    Expiration date means the last day after which the entire tariff or 
tariff element is no longer in effect.
    Foreign commerce means that commerce under the jurisdiction of the 
Act.
    Forest products means forest products including, but not limited to, 
lumber in bundles, rough timber, ties, poles, piling, laminated beams, 
bundled siding, bundled plywood, bundled core stock or veneers, bundled 
particle or fiber boards, bundled hardwood, wood pulp in rolls, wood 
pulp in unitized bales, paper and paper board in rolls or in pallet or 
skid-sized sheets, liquid or granular by-products derived from pulping 
and papermaking, and engineered wood products.
    Harmonized Code means the coding provisions of the Harmonized 
System.
    Harmonized System means the Harmonized Tariff Schedule of the United 
States (``U.S. HTS''), based on the international Harmonized System, 
administered by the U.S. Customs Service for the U.S. International 
Trade Commission, and Schedule B, administered by the U.S. Census 
Bureau.
    Inland point means any city and associated state/province, country, 
U.S. ZIP code, or U.S. ZIP code range, which lies beyond port terminal 
areas. (A city may share the name of a port: the immediate ship-side and 
terminal area is the port, but the rest of the city is considered an 
inland point.)
    Inland rate means a rate specified from/to an ocean port to/from an 
inland point, for specified modes of overland transportation.
    Inland rate table means a structured matrix of geographic inland 
locations (points, postal codes/postal code ranges, etc.) on one axis 
and transportation modes (truck, rail, etc.) on the other axis, with the 
inland rates specified at the matrix row and column intersections.
    Intermodal transportation means continuous through transportation 
involving more than one mode of service (e.g., ship, rail, motor, air), 
for pickup and/or delivery at a point beyond the

[[Page 168]]

area of the port at which the vessel calls. The term ``intermodal 
transportation'' can apply to ``through transportation (at through 
rates)'' or transportation on through routes using combination rates.
    Joint rates means rates or charges established by two or more common 
carriers for ocean transportation over the combined routes of such 
common carriers.
    Local rates means rates or charges for transportation over the route 
of a single common carrier (or any one common carrier participating in a 
conference tariff), the application of which is not contingent upon a 
prior or subsequent movement.
    Location group means a logical collection of geographic points, 
ports, states/provinces, countries, or combinations thereof, which is 
primarily used to identify, by location group name, a group that may 
represent tariff origin and/or destination scope and TRI origin and/or 
destination.
    Loyalty contract means a contract with an ocean common carrier or 
agreement by which a shipper obtains lower rates by committing all or a 
fixed portion of its cargo to that carrier or agreement and the contract 
provides for a deferred rebate arrangement.
    Motor vehicle means a wheeled vehicle whose primary purpose is 
ordinarily the non-commercial transportation of passengers, including an 
automobile, pickup truck, minivan, or sport utility vehicle.
    Ocean common carrier means a common carrier that operates, for all 
or part of its common carrier service, a vessel 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.
    Ocean transportation intermediary means an ocean freight forwarder 
or a non-vessel-operating common carrier. For purposes of this part,
    (1) Ocean freight forwarder means a person that--
    (i) In the United States, dispatches shipments from the United 
States via a common carrier and books or otherwise arranges space for 
those shipments on behalf of shippers; and
    (ii) Processes the documentation or performs related activities 
incident to those shipments; and
    (2) Non-vessel-operating common carrier (``NVOCC'') means 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.
    Open rate means a rate on a specified commodity or commodities over 
which a conference relinquishes or suspends its ratemaking authority in 
whole or in part, thereby permitting each individual ocean common 
carrier member of the conference to fix its own rate on such commodity 
or commodities.
    Organization name means an entity's name on file with the Commission 
and for which the Commission assigns an organization number.
    Organization record means information regarding an entity, including 
its name, address, and organization type.
    Origin scope means a location group defining the geographic range of 
cargo origins covered by a tariff.
    Person includes individuals, firms, partnerships, associations, 
companies, corporations, joint stock associations, trustees, receivers, 
agents, assignees and personal representatives.
    Point of rest means that area on the terminal facility which is 
assigned for the receipt of inbound cargo from the ship and from which 
inbound cargo may be delivered to the consignee, and that area which is 
assigned for the receipt of outbound cargo from shippers for vessel 
loading.
    Port means a place at which a common carrier originates or 
terminates (by transshipment or otherwise) its actual ocean carriage of 
cargo or passengers as to any particular transportation movement.
    Project rates means rates applicable to the transportation of 
materials and equipment to be employed in the construction or 
development of a named facility used for a major governmental, 
charitable, manufacturing, resource exploitation and public utility or 
public service purpose, including disaster relief projects.
    Proportional rates means rates or charges assessed by a common 
carrier

[[Page 169]]

for transportation services, the application of which is conditioned 
upon a prior or subsequent movement.
    Publication date means the date a tariff or tariff element is 
published in a carrier's or conference's tariff.
    Publisher means an organization authorized to publish or amend 
tariff information.
    Rate means a price stated in a tariff for providing a specified 
level of transportation service for a stated cargo quantity, from origin 
to destination, on and after a stated effective date or within a defined 
time frame.
    Retrieval means the process by which a person accesses a tariff via 
dial-up telecommunications or a network link and interacts with the 
carrier's or publisher's system on a transaction-by-transaction basis to 
retrieve published tariff matter.
    Rules means the stated terms and conditions set by the tariff owner 
which govern the application of tariff rates, charges and other matters.
    Scope means the location group(s) (geographic groupings(s)) listing 
the ports or ranges of ports to and from which the tariff's rates apply.
    Shipment means all of the cargo carried under the terms of a single 
bill of lading.
    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 shipper's association; or
    (5) An NVOCC that accepts responsibility for payment of all charges 
applicable under the tariff or service contract.
    Shippers' association means a group of shippers that consolidates or 
distributes freight on a nonprofit basis for the members of the group in 
order to secure carload, truckload, or other volume rates or service 
contracts.
    Special permission means permission, authorized by the Commission, 
for certain tariff publications that do not conform with applicable 
regulations, usually involving effectiveness on less than statutory 
notice.
    Tariff means a publication containing the actual rates, charges, 
classifications, rules, regulations and practices of a common carrier or 
a conference of common carriers. The term ``practices'' refers to those 
usages, customs or modes of operation which in any way affect, determine 
or change the transportation rates, charges or services provided by a 
common carrier or conference and, in the case of conferences, must be 
restricted to activities authorized by the basic conference agreement.
    Tariff number means a unique 3-digit number assigned by the 
publisher to distinguish it from other tariffs. Tariffs may be 
identified by the 6-digit organization number plus the user-assigned 
tariff number (e.g., 999999-001) or a Standard Carrier Alpha Code 
(``SCAC'') plus the user-assigned tariff number.
    Tariff rate item (``TRI'') means a single freight rate, in effect on 
and after a specific date or for a specific time period, for the 
transportation of a stated cargo quantity, which may move from origin to 
destination under a single specified set of transportation conditions, 
such as container size or temperature.
    TRI number means a number that consists of the numeric commodity 
code, if any, and a unique numeric suffix used to differentiate TRIs 
within the same commodity description. TRI numbers are not required in 
systems that do not use numeric commodity coding.
    Through rate means the single amount charged by a common carrier in 
connection with through transportation.
    Through transportation means continuous transportation between 
points of origin and destination, either or both of which lie beyond 
port terminal areas, for which a through rate is assessed and which is 
offered or performed by one or more carriers, at least one of which is a 
common carrier, between a United States point or port and a foreign 
point or port.
    Thru date means the date after which an amendment to a tariff 
element is designated by the publisher to be unavailable for use and the 
previously effective tariff element automatically goes back into effect.
    Time/volume rate means a rate published in a tariff which is 
conditioned

[[Page 170]]

upon receipt of a specified aggregate volume of cargo or aggregate 
freight revenue over a specified period of time.
    Trade name means a name used for conducting business, but which is 
not necessarily its legal name. This is also known as a ``d/b/a'' (doing 
business as) name.
    Transshipment means the physical transfer of cargo from a vessel of 
one carrier to a vessel of another in the course of all-water or through 
transportation, where at least one of the exchanging carriers is an 
ocean common carrier subject to the Commission's jurisdiction.

[64 FR 11225, Mar. 8, 1999, as amended at 64 FR 23022, Apr. 29, 1999; 65 
FR 26512, May 8, 2000; 67 FR 39860, June 11, 2002]



Sec. 520.3  Publication responsibilities.

    (a) General. Unless otherwise exempted by Sec. 520.13, all common 
carriers and conferences shall keep open for public inspection, in 
automated tariff systems, tariffs showing all rates, charges, 
classifications, rules, and practices between all points or ports on 
their own routes and on any through transportation route that has been 
established.
    (b) Conferences. Conferences shall publish, in their automated 
tariff systems, rates offered pursuant to independent action by their 
members and may publish any open rates offered by their members. 
Alternatively, open rates may be published in individual tariffs of 
conference members.
    (c) Agents. Common carriers or conferences may use agents to meet 
their publication requirements under this part.
    (d) Notification. Each common carrier and conference shall notify 
BTA, prior to the commencement of common carrier service pursuant to a 
published tariff, of its organization name, organization number, home 
office address, name and telephone number of firm's representative, the 
location of its tariffs, and the publisher, if any, used to maintain its 
tariffs, by electronically submitting Form FMC-1 via the Commission's 
website at www.fmc.gov. Any changes to the above information shall be 
immediately transmitted to BTA. The Commission will provide a unique 
organization number to new entities operating as common carriers or 
conferences in the U.S. foreign commerce.
    (e) Location of tariffs. The Commission will publish on its website, 
www.fmc.gov, a list of the locations of all carrier and conference 
tariffs. The Commission will update this list on a periodic basis.

[64 FR 11225, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002]



Sec. 520.4  Tariff contents.

    (a) General. Tariffs published pursuant to this part shall:
    (1) State the places between which cargo will be carried;
    (2) List each classification of cargo in use;
    (3) State the level of ocean transportation intermediary, as defined 
by section 3(17)(A) of the Act (46 U.S.C. 40102(18)), compensation, if 
any, to be paid by a carrier or conference;
    (4) State separately each terminal or other charge, privilege, or 
facility under the control of the carrier or conference and any rules or 
regulations that in any way change, affect, or determine any part of the 
aggregate of the rates or charges;
    (5) Include sample copies of any bill of lading, contract of 
affreightment or other document evidencing the transportation agreement;
    (6) Include copies of any loyalty contract, omitting the shipper's 
name;
    (7) Contain an organization record, tariff record, and tariff rules; 
and
    (8) For commodity tariffs, also contain commodity descriptions and 
tariff rate items.
    (b) Organization record. Common carriers' and conferences' 
organization records shall include:
    (1) Organization name;
    (2) Organization number assigned by the Commission;
    (3) Agreement number, where applicable;
    (4) Organization type (e.g., ocean common carrier (VOCC), conference 
(CONF), non-vessel-operating common carrier (NVOCC) or agent);
    (5) Home office address and telephone number of firm's 
representative;
    (6) Names and organization numbers of all affiliates to conferences 
or agreements, including trade names; and

[[Page 171]]

    (7) The publisher, if any, used to maintain the organization's 
tariffs.
    (c) Tariff record. The tariff record for each tariff shall include:
    (1) Organization number and name, including any trade name;
    (2) Tariff number;
    (3) Tariff title;
    (4) Tariff type (e.g., commodity, rules, equipment interchange, or 
bill of lading);
    (5) Contact person and address;
    (6) Default measurement and currency units;
    (7) Origination and destination scope; and
    (8) A statement certifying that all information contained in the 
tariff is true and accurate and no unlawful alterations will be 
permitted.
    (d) Tariff rules. Carriers and conferences shall publish in their 
tariffs any rule that affects the application of the tariff.
    (e) Commodity descriptions. (1) For each separate commodity in a 
tariff, a distinct numeric code may be used. Tariff publishers are not 
required to use any numeric code to identify commodities, but should 
they choose to do so, they are encouraged to use the U.S. Harmonized 
Tariff Schedule (``U.S. HTS'') for both the commodity coding and 
associated terminology (definitions).
    (2) If a tariff publisher uses a numeric code to identify 
commodities, the following commodity types shall be preceded by their 
associated 2-digit prefixes, with the remaining digits at the 
publisher's option:
    (i) Mixed commodities--``99'';
    (ii) Projects--``98''; and
    (iii) non-commodities, e.g., ``cargo, n.o.s.,'' ``general cargo,'' 
or ``freight-all kinds''--``00''.
    (3) Commodity index. (i) Each commodity description created under 
this section shall have at least one similar index entry which will 
logically represent the commodity within the alphabetical index. 
Publishers are encouraged, however, to create multiple entries in the 
index for articles with equally valid common use names, such as, 
``Sodium Chloride,'' ``Salt, common,'' etc.
    (ii) If a commodity description includes two or more commodities, 
each included commodity shall be shown in the index.
    (iii) Items, such as ``mixed commodities,'' ``projects'' or 
``project rates,'' ``n.o.s.'' descriptions, and ``FAK,'' shall be 
included in the commodity index.
    (f) Tariff rate items. A tariff rate item (``TRI'') is the single 
freight rate in effect for the transportation of cargo under a specified 
set of transportation conditions. TRIs must contain the following:
    (1) Brief commodity description;
    (2) TRI number (optional);
    (3) Publication date;
    (4) Effective date;
    (5) Origin and destination locations or location groups;
    (6) Rate and rate basis; and
    (7) Service code.
    (g) Location groups. In the primary tariff, or in a governing 
tariff, a publisher may define and create groups of cities, states, 
provinces and countries (e.g., location groups) or groups of ports 
(e.g., port groups), which may be used in the construction of TRIs and 
other tariff objects, in lieu of specifying particular place names in 
each tariff item, or creating multiple tariff items which are identical 
in all ways except for place names.
    (h) Inland rate tables. If a carrier or conference desires to 
provide intermodal transportation to or from named points/postal regions 
at combination rates, it shall clearly and accurately set forth the 
applicable charges in an ``Inland Rate Tables'' section. An inland rate 
table may be constructed to provide an inland distance which is applied 
to a per mile rate to calculate the inland rate.
    (i) Shipper requests. Conference tariffs shall contain clear and 
complete instructions, in accordance with the agreement's provisions, 
stating where and by what method shippers may file requests and 
complaints and how they may engage in consultation pursuant to section 
5(b)(6) of the Act (46 U.S.C. 40303(b)(6)), together with a sample rate 
request form or a description of the information necessary for 
processing the request or complaint.
    (j) Inland divisions. Common carriers are not required to state 
separately or

[[Page 172]]

otherwise reveal in tariffs the inland division of a through rate.

[64 FR 11225, Mar. 8, 1999, as amended at 74 FR 50722, Oct. 1, 2009]



Sec. 520.5  Standard tariff terminology.

    (a) Approved codes. The Standard Terminology Appendix contains codes 
for rate bases, container sizes, service, etc., and units for weight, 
measure and distance. They are intended to provide a standard 
terminology baseline for tariffs to facilitate retriever efficiency. 
Tariff publishers may use additional codes, if they are clearly defined 
in their tariffs.
    (b) Geographic names. Tariffs should employ locations (points) that 
are published in the National Imagery and Mapping Agency (``NIMA'') 
gazetteer or the Geographic Names Information System (``GNIS'') 
developed by the U.S. Geological Survey. Ports published or approved for 
publication in the World Port Index (Pub. No. 150) should also be used 
in tariffs. Tariff publishers may use geographic names that are 
currently in use and have not yet been included in these publications.



Sec. 520.6  Retrieval of information.

    (a) General. Tariffs systems shall present retrievers with the 
ability to:
    (1) Search for commonly understood tariff objects (e.g., 
commodities, origins, destinations, etc.) without restricting such 
search to a specific tariff;
    (2) Search a tariff for a rate on the basis of origin, destination 
and commodity;
    (3) Employ a tariff selection option; or
    (4) Select an object group (e.g., rules, locations, groups, etc.) 
within a particular tariff.
    (b) Search capability. Tariffs shall provide the capability to 
search for tariff matter by non-case sensitive text search. Text search 
matches for commodity descriptions should result in a commodity or 
commodity index list.
    (c) Commodities and TRIs. Retriever selection of a specific 
commodity from a commodity index list shall display the commodity 
description and provide an option for searching for a rate (e.g., on the 
basis of origin/destination) or a TRI list, if multiple TRIs are in 
effect for the commodity.
    (d) Object groups. Retriever selection of a specific object group 
shall result in a list of the objects within the group or present a text 
search mechanism to allow location of an object within the group. For 
example, selection of the rules object group would present a list of the 
rules or a text search mechanism for locating specific terms or phrases 
within the rules.
    (e) Basic ocean freight. The minimum rate display for tariffs shall 
consist of the basic ocean freight rate and a list of all assessorial 
charges that apply for the retriever-entered shipment parameters. If 
other rules or charges may be applicable to a shipment under certain 
circumstances, the tariff shall so indicate.
    (f) Displays. All displays of individual tariff matter shall include 
the publication date, effective date, amendment code (as contained in 
appendix A of this part) and object name or number. When applicable, a 
thru date or expiration date shall also be displayed. Use of ``S'' as an 
amendment code shall be accompanied by a Commission issued special use 
number.



Sec. 520.7  Tariff limitations.

    (a) General. Tariffs published pursuant to this part shall:
    (1) Be clear and definite;
    (2) Use English as the primary textual language;
    (3) Not contain cross-references to any other rate tariffs, except:
    (i) A tariff of general applicability maintained by that same 
carrier or conference,
    (ii) The individual tariffs of members of a non-conference agreement 
to enter into time/volume rates may cross-reference the tariffs of other 
members for purposes of said time/volume rates, and
    (iii) Multiple common tariffs of a conference agreement to enter 
into time/volume rates may cross-reference their own multiple conference 
tariffs for purposes of said time/volume rates; and
    (4) Not duplicate or conflict with any other tariff publication.

[[Page 173]]

    (b) Notice of cancellation. Carriers and conferences shall inform 
BTA, in writing, whenever a tariff is canceled and the effective date of 
that cancellation.
    (c) Applicable rates. The rates, charges, and rules applicable to 
any given shipment shall be those in effect on the date the cargo is 
received by the common carrier or its agent including originating 
carriers in the case of rates for through transportation.
    (d) Minimum quantity rates. When two or more TRIs are stated for the 
same commodity over the same route and under similar conditions, and the 
application is dependent upon the quantity of the commodity shipped, the 
total freight charges assessed against the shipment may not exceed the 
total charges computed for a larger quantity, if the TRI specifying a 
required minimum quantity (either weight or measurement; per container 
or in containers) will be applicable to the contents of the 
container(s), and if the minimum set forth is met or exceeded. At the 
shipper's option, a quantity less than the minimum level may be 
freighted at the lower TRI if the weight or measurement declared for 
rating purposes is increased to the minimum level.
    (e) Green salted hides. The shipping weight for green salted hides 
shall be either a scale weight or a scale weight minus a deduction, 
which amount and method of computation are specified in the commodity 
description. The shipper must furnish the carrier a weight certificate 
or dock receipt from an inland common carrier for each shipment at or 
before the time the shipment is tendered for ocean transportation.
    (f) Conference situations. (1) New members of a conference shall 
cancel any independent tariffs applicable to the trades served by the 
conference, within ninety (90) days of membership in the conference. 
Individual conference members may publish their own separate open rate 
tariffs. Admission to the conference may be effective on the date notice 
is published in the conference tariff.
    (2) New conference agreements have ninety (90) days within which to 
publish a new tariff.
    (g) Overcharge claims. (1) No tariff may limit the filing of 
overcharge claims with a common carrier to a period of less than three 
(3) years from the accrual of the cause of action.
    (2) The acceptance of any overcharge claim may not be conditioned 
upon the payment of a fee or charge.
    (3) No tariff may require that overcharge claims based on alleged 
errors in weight, measurement or description of cargo be filed before 
the cargo has left the custody of the common carrier.
    (h) Returned cargo. When a carrier or conference offers the return 
shipment of refused, damaged or rejected shipments, or exhibits at trade 
fairs, shows or expositions, to port of origin at the TRI assessed on 
the original movement, and such TRI is lower than the prevailing TRI:
    (1) The return shipment must occur within one (1) year;
    (2) The return movement must be made over the line of the same 
common carrier performing the original movement, except in the use of a 
conference tariff, where return may be made by any member line when the 
original shipment was carried under the conference tariff; and
    (3) A copy of the original bill of lading showing the rate assessed 
must be presented to the return common carrier.

[64 FR 11225, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002]



Sec. 520.8  Effective dates.

    (a) General. (1) No new or initial rate, charge, or change in an 
existing rate, that results in an increased cost to a shipper may become 
effective earlier than thirty (30) calendar days after publication.
    (2) An amendment which deletes a specific commodity and applicable 
rate from a tariff, thereby resulting in a higher ``cargo n.o.s.'' or 
similar general cargo rate, is a rate increase requiring a 30-day notice 
period.
    (3) Rates for the transportation of cargo for the U.S. Department of 
Defense may be effective upon publication.
    (4) Changes in rates, charges, rules, regulations or other tariff 
provisions resulting in a decrease in cost to a shipper may become 
effective upon publication.

[[Page 174]]

    (b) Amendments. The following amendments may take effect upon 
publication:
    (1) Those resulting in no change in cost to a shipper;
    (2) The canceling of a tariff due to cessation of all service by the 
carrier between the ports or points covered by the tariff;
    (3) The addition of a port or point to a previously existing origin 
or destination grouping; or
    (4) Changes in charges for terminal services, canal tolls, 
additional charges, or other provisions not under the control of the 
common carriers or conferences, which merely acts as a collection agent 
for such charges and the agency making such changes does so without 
notifying the tariff owner.
    (c) Controlled carriers. Published rates by or for controlled 
carriers shall be governed by the procedures set forth in part 565 of 
this chapter.



Sec. 520.9  Access to tariffs.

    (a) Methods to access. Carriers and conferences shall provide access 
to their published tariffs, via a personal computer (``PC''), by:
    (1) Dial-up connection via public switched telephone networks 
(``PSTN''); or
    (2) The Internet (Web) by:
    (i) Web browser; or
    (ii) Telnet session.
    (b) Dial-up connection via PSTN. (1) This connection option requires 
that tariffs provide:
    (i) A minimum of a 14.4Kbps modem capable of receiving incoming 
calls;
    (ii) Smart terminal capability for VT-100 terminal or terminal 
emulation access; and
    (iii) Telephone line quality for data transmission.
    (2) The modem may be included in a collection (bank) of modems as 
long as all modems in the bank meet the minimum speed.
    (c) Internet connection. (1) This connection option requires that 
systems provide:
    (i) A universal resource locator (``URL'') Internet address (e.g., 
http://www.tariffsrus.com or http://1.2.3.4); and/or
    (ii) A URL Internet address (e.g., telnet://tariffsrus or telnet://
1.2.3.4), for Telnet session access over the Internet.
    (2) Carriers or conferences shall ensure that their Internet service 
providers provide static Internet addresses.
    (d) Commission access. Commission telecommunications access to 
systems must include connectivity via a dial-up connection over PSTNs or 
a connection over the Internet. Connectivity will be provided at the 
expense of the publishers. Any recurring connection fees, hardware 
rental fees, usage fees or any other charges associated with the 
availability of the system are the responsibility of the publisher. The 
Commission shall only be responsible for the long-haul charges for PSTN 
calls to a tariff initiated by the FMC.
    (e) Limitations. (1) Tariffs must be made available to any person 
without time, quantity, or other limitations.
    (2) Carriers are not required to provide remote terminals for access 
under this section.
    (3) Carriers and conferences may assess a reasonable fee for access 
to their tariff publication systems and such fees shall not be 
discriminatory.
    (4) Tariff publication systems shall provide user instructions for 
access to tariff information.
    (f) Federal agencies. Carriers and conferences may not assess any 
access charges against the Commission or any other Federal agency.
    (g) User identifications. Carriers and conferences shall provide the 
Commission with the documentation it requires and the number of user 
identifications and passwords it requests to facilitate the Commission's 
access to their systems, if they require such identifications and 
passwords.



Sec. 520.10  Integrity of tariffs.

    (a) Historical data. Carriers and conferences shall maintain the 
data that appeared in their tariff publication systems for a period of 
five (5) years from the date such information is superseded, canceled or 
withdrawn, and shall provide on-line access to such data for two (2) 
years. After two (2) years, such data may be retained on-line or in 
other electronic form, and shall be made available to any person or the

[[Page 175]]

Commission upon request in a reasonable period of time. Carriers and 
conferences may charge a reasonable fee for the provision of historical 
data, not to exceed the fees for obtaining such data on-line. No fee 
shall apply to federal agencies.
    (b) Access date capability. Each tariff shall provide the capability 
for a retriever to enter an access date, i.e., a specific date for the 
retrieval of tariff data, so that only data in effect on that date would 
be directly retrievable. This capability would also align any rate 
adjustments and assessorial charges that were effective on the access 
date for rate calculations and designation of applicable surcharges. The 
access date shall also apply to the alignment of tariff objects for any 
governing tariffs.
    (c) Periodic review. The Commission will periodically review 
published tariff systems and will prohibit the use of any system that 
fails to meet the requirements of this part.
    (d) Access to systems. Carriers and conferences shall provide the 
Commission reasonable access to their automated systems and records in 
order to conduct reviews.



Sec. 520.11  Non-vessel-operating common carriers.

    (a) Financial responsibility. An ocean transportation intermediary 
that operates as a non-vessel-operating common carrier shall state in 
its tariff publication:
    (1) That it has furnished the Commission proof of its financial 
responsibility in the manner and amount required by part 515 of this 
chapter;
    (2) The manner of its financial responsibility;
    (3) Whether it is relying on coverage provided by a group or 
association to which it is a member;
    (4) The name and address of the surety company, insurance company or 
guarantor issuing the bond, insurance policy, or guaranty;
    (5) The number of the bond, insurance policy or guaranty; and
    (6) Where applicable, the name and address of the group or 
association providing coverage.
    (b) Agent for service. Every NVOCC not in the United States shall 
state the name and address of the person in the United States designated 
under part 515 of this chapter as its legal agent for service of 
process, including subpoenas. The NVOCC shall further state that in any 
instance in which the designated legal agent cannot be served because of 
death, disability or unavailability, the Commission's Secretary will be 
deemed to be its legal agent for service of process.
    (c) Co-Loading. (1) NVOCCs shall address the following situations in 
their tariffs:
    (i) If an NVOCC does not tender cargo for co-loading, this shall be 
noted in its tariff.
    (ii) If two or more NVOCCs enter into an agreement which establishes 
a carrier-to-carrier relationship for the co-loading of cargo, then the 
existence of such agreement shall be noted in the tariff.
    (iii) If two NVOCCs enter into a co-loading arrangement which 
results in a shipper-to-carrier relationship, the tendering NVOCC shall 
describe its co-loading practices and specify its responsibility to pay 
any charges for the transportation of the cargo. A shipper-to-carrier 
relationship shall be presumed to exist where the receiving NVOCC issues 
a bill of lading to the tendering NVOCC for carriage of the co-loaded 
cargo.
    (2) Documentation requirements. An NVOCC which tenders cargo to 
another NVOCC for co-loading, whether under a shipper-to-carrier or 
carrier-to-carrier relationship, shall annotate each applicable bill of 
lading with the identity of any other NVOCC to which the shipment has 
been tendered for co-loading. Such annotation shall be shown on the face 
of the bill of lading in a clear and legible manner.
    (3) Co-loading rates. No NVOCC may offer special co-loading rates 
for the exclusive use of other NVOCCs. If cargo is accepted by an NVOCC 
from another NVOCC which tenders that cargo in the capacity of a 
shipper, it must be rated and carried under tariff provisions which are 
available to all shippers.



Sec. 520.12  Time/Volume rates.

    (a) General. Common carriers or conferences may publish in their 
tariffs rates which are conditioned upon the

[[Page 176]]

receipt of a specified aggregate volume of cargo or aggregate freight 
revenue over a specified period of time.
    (b) Publication requirements. (1) All rates, charges, 
classifications rules and practices concerning time/volume rates must be 
set forth in the carrier's or conference's tariff.
    (2) The tariff shall identify:
    (i) The shipment records that will be maintained to support the 
rate; and
    (ii) The method to be used by shippers giving notice of their 
intention to use a time/volume rate prior to tendering any shipments 
under the time/volume arrangement.
    (c) Accepted rates. Once a time/volume rate is accepted by one 
shipper, it shall remain in effect for the time specified, without 
amendment. If no shipper gives notice within 30 days of publication, the 
time/volume rate may be canceled.
    (d) Records. Shipper notices and shipment records supporting a time/
volume rate shall be maintained by the offering carrier or conference 
for at least 5 years after a shipper's use of a time/volume rate has 
ended.
    (e) Liquidated damages. Time/volume rates may not impose or attempt 
to impose liquidated damages on any shipper that moves cargo under the 
rate. Carriers and agreements shall rerate cargo moved at the applicable 
tariff rate, if a shipper fails to meet the requirements of the time/
volume offer.



Sec. 520.13  Exemptions and exceptions.

    (a) General. Exemptions from the requirements of this part are 
governed by section 16 of the Act (46 U.S.C. 40103) and Rule 67 of the 
Commission's Rules of Practice and Procedure, Sec. 502.67 of this 
chapter.
    (b) Services. The following services are exempt from the 
requirements of this part:
    (1) Equipment interchange agreements. Equipment-interchange 
agreements between common carriers subject to this part and inland 
carriers, where such agreements are not referred to in the carriers' 
tariffs and do not affect the tariff rates, charges or practices of the 
carriers.
    (2) Controlled carriers in foreign commerce. A controlled common 
carrier shall be exempt from the provisions of this part exclusively 
applicable to controlled carriers when:
    (i) The vessels of the controlling state are entitled by a treaty of 
the United States to receive national or most-favored-nation treatment; 
or
    (ii) The controlled carrier operates in a trade served exclusively 
by controlled carriers.
    (3) Terminal barge operators in Pacific Slope states. Transportation 
provided by terminal barge operators in Pacific Slope states barging 
containers and containerized cargo by barge between points in the United 
States are exempt from the tariff publication requirements of Act and 
the rules of this part, where:
    (i) The cargo is moving between a point in a foreign country or a 
non-contiguous State, territory, or possession and a point in the United 
States;
    (ii) The transportation by barge between points in the United States 
is furnished by a terminal operator as a service substitute in lieu of a 
direct vessel call by the common carrier by water transporting the 
containers or containerized cargo under a through bill of lading; and
    (iii) Such terminal operator is a Pacific Slope state, municipality, 
or other public body or agency subject to the jurisdiction of the 
Commission, and the only one furnishing the particular circumscribed 
barge service in question as of January 2, 1975.
    (c) Cargo types. The following cargo types are not subject to the 
requirements of this part:
    (1) Bulk cargo, forest products, etc. This part does not apply to 
bulk cargo, forest products, recycled metal scrap, new assembled motor 
vehicles, waste paper and paper waste. Carriers or conferences which 
voluntarily publish tariff provisions covering otherwise exempt 
transportation thereby subject themselves to the requirements of this 
part, including the requirement to adhere to the tariff provisions.
    (2) Mail in foreign commerce. Transportation of mail between the 
United States and foreign countries.
    (3) Used military household goods. Transportation of used military 
household goods and personal effects by ocean transportation 
intermediaries.

[[Page 177]]

    (4) Department of Defense cargo. Transportation of U.S. Department 
of Defense cargo moving in foreign commerce under terms and conditions 
negotiated and approved by the Military Transportation Management 
Command (``MTMC'') and published in a universal service contract. An 
exact copy of the universal service contract, including any amendments 
thereto, shall be filed in paper format with the Commission as soon as 
it becomes available.
    (5) Used household goods--General Services Administration. 
Transportation of used household goods and personal effects by ocean 
transportation intermediaries shipped for federal civilian executive 
agencies under the International Household Goods Program administered by 
the General Services Administration.
    (d) Services involving foreign countries. The following 
transportation services involving foreign countries are not subject to 
the requirements of this part:
    (1) Between foreign countries. This part does not apply to 
transportation of cargo between foreign countries, including that which 
is transshipped from one ocean common carrier to another (or between 
vessels of the same common carrier) at a U.S. port or transferred 
between an ocean common carrier and another transportation mode at a 
U.S. port for overland carriage through the United States, where the 
ocean common carrier accepts custody of the cargo in a foreign country 
and issues a through bill of lading covering its transportation to a 
foreign point of destination.
    (2) Between Canada and U.S. The following services are exempt from 
the filing requirements of the Act and the rules of this part:
    (i) Prince Rupert and Alaska. (A) Vehicles. Transportation by 
vessels operated by the State of Alaska between Prince Rupert, Canada 
and ports in southeastern Alaska, if all the following conditions are 
met:
    (1) Carriage of property is limited to vehicles;
    (2) Tolls levied for vehicles are based solely on space utilized 
rather than the weight or contents of the vehicle and are the same 
whether the vehicle is loaded or empty;
    (3) The vessel operator does not move the vehicles on or off the 
ship; and
    (4) The common carrier does not participate in any joint rate 
establishing through routes or in any other type of agreement with any 
other common carrier.
    (B) Passengers. Transportation of passengers, commercial buses 
carrying passengers, personal vehicles and personal effects by vessels 
operated by the State of Alaska between Seattle, Washington and Prince 
Rupert, Canada, only if such vehicles and personal effects are the 
accompanying personal property of the passengers and are not transported 
for the purpose of sale.
    (ii) British Columbia and Puget Sound Ports; rail cars--(A) Through 
rates. Transportation by water of cargo moving in rail cars between 
British Columbia, Canada and United States ports on Puget Sound, and 
between British Columbia, Canada and ports or points in Alaska, only if 
the cargo does not originate in or is not destined to foreign countries 
other than Canada, but only if:
    (1) The through rates are filed with the Surface Transportation 
Board and/or the Canadian Transport Commission; and
    (2) Certified copies of the rate divisions and of all agreements, 
arrangements or concurrences, entered into in connection with the 
transportation of such cargo, are filed with the Commission within 30 
days of the effectiveness of such rate divisions, agreements, 
arrangements or concurrences.
    (B) Bulk; port-to-port. Transportation by water of cargo moving in 
bulk without mark or count in rail cars on a local port-to-port rate 
basis between ports in British Columbia, Canada and United States ports 
on Puget Sound, only if the rates charged for any particular bulk type 
commodity on any one sailing are identical for all shippers, except 
that:
    (1) This exemption shall not apply to cargo originating in or 
destined to foreign countries other than Canada; and
    (2) The carrier will remain subject to all other provisions of the 
Act.
    (iii) Incan Superior, Ltd. Transportation by Incan Superior, Ltd. of 
cargo

[[Page 178]]

moving in railroad cars between Thunder Bay, Ontario, and Superior, 
Wisconsin, only if the cargo does not originate in or is not destined to 
foreign countries other than Canada, and if:
    (A) The through rates are filed with the Surface Transportation 
Board and/or the Canadian Transport Commission; and
    (B) Certified copies of the rate divisions and all agreements, 
arrangements or concurrences entered into in connection with the 
transportation of such cargo are filed with the Commission within 30 
days of the effectiveness of such rate divisions, agreements, 
arrangements or concurrences.
    (e) NVOCC Negotiated Rate Arrangements. An NVOCC that satisfies the 
requirements of part 532 of this chapter is exempt from the requirement 
in this part that it include rates in a tariff open to public inspection 
in an automated tariff system.

[64 FR 11225, Mar. 8, 1999, as amended at 74 FR 50722, Oct. 1, 2009; 76 
FR 11360, Mar. 2, 2011; 78 FR 42888, July 18, 2013]



Sec. 520.14  Special permission.

    (a) General. Section 8(d) of the Act (46 U.S.C. 40501(e)) authorizes 
the Commission, in its discretion and for good cause shown, to permit 
increases or decreases in rates, or the issuance of new or initial 
rates, on less than the statutory notice. Section 9(c) of the Act (46 
U.S.C. 40703, 40704(a)) authorizes the Commission to permit a controlled 
carrier's rates, charges, classifications, rules or regulations to 
become effective on less than 30 days' notice. The Commission may also 
in its discretion and for good cause shown, permit departures from the 
requirements of this part.
    (b) Clerical errors. Typographical and/or clerical errors constitute 
good cause for the exercise of special permission authority but every 
application based thereon must plainly specify the error and present 
clear evidence of its existence, together with a full statement of the 
attending circumstances, and shall be submitted with reasonable 
promptness after publishing the defective tariff material.
    (c) Application. (1) Applications for special permission to 
establish rate increases or decreases on less than statutory notice or 
for waiver of the provisions of this part, shall be made by the common 
carrier, conference or agent for publishing. Every such application 
shall be submitted to the Bureau of Trade Analysis and be accompanied by 
a filing fee of $195.
    (2) Applications for special permission shall be made only by 
letter, except that in emergency situations, application may be made by 
telephone or facsimile if the communication is promptly followed by a 
letter and the filing fee.
    (3) Applications for special permission shall contain the following 
information:
    (i) Organization name, number and trade name of the conference or 
carrier;
    (ii) Tariff number and title; and
    (iii) The rate, commodity, or rules related to the application, and 
the special circumstances which the applicant believes constitute good 
cause to depart from the requirements of this part or to warrant a 
tariff change upon less than the statutory notice period.
    (d) Implementation. The authority granted by the Commission shall be 
used in its entirety, including the prompt publishing of the material 
for which permission was requested. Applicants shall use the special 
case number assigned by the Commission with the symbol ``S''.

[64 FR 11225, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 70 
FR 10330, Mar. 3, 2005; 74 FR 50722, Oct. 1, 2009]



Sec. 520.91  OMB control number assigned pursuant to the Paperwork 
Reduction Act.

    The Commission has received OMB approval for this collection of 
information pursuant to the Paperwork Reduction Act of 1995, as amended. 
In accordance with the Act, agencies are required to display a currently 
valid control number. The valid control number for this collection of 
information is 3072-0064.



       Sec. Appendix A to Part 520--Standard Terminology and Codes

                   I--Publishing/Amendment Type Codes
------------------------------------------------------------------------
             Code                              Definition
------------------------------------------------------------------------
A............................  Increase.

[[Page 179]]

 
C............................  Change resulting in neither increase nor
                                decrease in rate or charges.
E............................  Expiration (also use ``A'' if the
                                deletion results in the application of a
                                higher ``cargo, n.o.s.'' or similar
                                rate).
I............................  New or initial matter.
K............................  Rate or change filed by a controlled
                                common carrier member of a conference
                                under independent action.
M............................  Transportation of U.S. Department of
                                Defense cargo by American-flag common
                                carriers.
P............................  Addition of a port or point.
R............................  Reduction.
S............................  Special Case matter filed pursuant to
                                Special Permission, Special Docket or
                                other Commission direction, including
                                filing of tariff data after suspension,
                                such as for controlled carriers.
                                Requires ``Special Case Number.''
T............................  Terminal Rates, charges or provisions or
                                canal tolls over which the carrier has
                                no control.
W............................  Withdrawal of an erroneous publication on
                                the same publication date.
X............................  Exemption for controlled carrier data in
                                trades served exclusively by controlled
                                carriers or by controlled carriers of
                                states receiving most-favored-nation
                                treatment.
------------------------------------------------------------------------


                             II--Unit Codes
A. Weight Units:
  Kilograms..................................  KGS
  1000 Kgs (Metric Ton)......................  KT
  Pounds.....................................  LBS
  Long Ton (2240 LBS)........................  LT
  Short Ton (2000 LBS).......................  ST
B. Volume Units:
  Cubic meter................................  CBM
  Cubic feet.................................  CFT
C. Length Units:
  Centimeters................................  CM
  Feet.......................................  FT
  Inches.....................................  IN
  Meters.....................................  M
D. Measure Board Feet:
  Thousand Board Feet........................  MBF
E. Distance Units:
  Kilometers.................................  KM
  Miles......................................  MI
F. Rate Basis:
  Ad Valorem.................................  AV
  Each.......................................  EA
  Lump Sum...................................  LS
  Measure....................................  M
  Thousand Board Feet........................  MBF
  Per Container..............................  PC
  Weight.....................................  W
  Weight/Measure.............................  WM
G. Container Size Codes:
  Not Applicable.............................  N/A
  Less Than Load.............................  LTL
  10 FT Any Height...........................  10X
  20 FT 8[foot]6..................  20
  20 FT 9[foot]0 High Cube........  20A
  20 FT 9[foot]6 High Cube........  20B
  20 FT 8[foot]0..................  20S
  20 FT Any Height...........................  20X
  24 FT 8[foot]6..................  24
  24 FT 9[foot]0 High Cube........  24A
  24 FT 9[foot]6 High Cube........  24B
  24 FT 8[foot]0..................  24S
  24 FT Any Height...........................  24X
  35 FT 8[foot]6..................  35
  35 FT 9[foot]0 High Cube........  35A
  35 FT 9[foot]6 High Cube........  35B
  35 FT 8[foot]0..................  35S
  35 FT Any Height...........................  35X
  40 FT 8[foot]6..................  40
  40 FT 9[foot]0 High Cube........  40A
  40 FT 9[foot]6 High Cube........  40B
  40 FT 8[foot]0..................  40S
  40 FT Any Height...........................  40X
  42 FT 8[foot]6..................  42
  42 FT 9[foot]0 High Cube........  42A
  42 FT 9[foot]6 High Cube........  42B
  42 FT 8[foot]0..................  42S
  42 FT Any Height...........................  42X
  43 FT 8[foot]6..................  43
  43 FT 9[foot]0 High Cube........  43A
  43 FT 9[foot]6 High Cube........  43B
  43 FT 8[foot]0..................  43S
  43 FT Any Height...........................  43X
  45 FT 8[foot]6..................  45
  45 FT 9[foot]0 High Cube........  45A
  45 FT 9[foot]6 High Cube........  45B
  45 FT 8[foot]0..................  45S
  45 FT Any Height...........................  45X
  48 FT 8[foot]6..................  48
  48 FT 9[foot]0 High Cube........  48A
  48 FT 9[foot]6 High Cube........  48B
  48 FT 8[foot]0..................  48S
  48 FT Any Height...........................  48X
  53 FT 8[foot]6..................  53
  53 FT 9[foot]0 High Cube........  53A
  53 FT 9[foot]6 High Cube........  53B
  53 FT 8[foot]0..................  53S
  53 FT Any Height...........................  53X
H. Container Type Codes:
  Not Applicable.............................  N/A
  Atmosphere Control.........................  AC
  Collapsible Flatrack.......................  CF
  Drop Frame.................................  DF
  Flat Bed...................................  FB
  Flat Rack..................................  FR
  Garment Container..........................  GC
  Half-Height................................  HH
  Hardtop....................................  HT
  Insulated..................................  IN
  Open Top...................................  OT
  Dry........................................  PC
  Platform...................................  PL
  Reefer.....................................  RE
  Tank.......................................  TC
  Top Loader.................................  TL
  Trailer....................................  TR
  Vehicle Racks..............................  VR
I. Container Temperature Codes:
  Not Appl/Operating.........................  N/A
  Artificial Atmo Ctrl.......................  AC
  Chilled....................................  CLD
  Frozen.....................................  FRZ
  Heated.....................................  HTD
  Refrigerated...............................  RE
  Ventilated.................................  VEN
J. Packaging Codes:
  Bag........................................  BAG
  Bale.......................................  BAL
  Bar........................................  BAR
  Barrel.....................................  BBL
  Bundle.....................................  BDL
  Beam.......................................  BEM
  Bing Chest.................................  BIC
  Bin........................................  BIN
  Bulk.......................................  BLK
  Bobbin.....................................  BOB

[[Page 180]]

 
  Box........................................  BOX
  Barge......................................  BRG
  Basket/Hamper..............................  BSK
  Bushel.....................................  BUS
  Box, with Inner Cntn.......................  BXI
  Bucket.....................................  BXT
  Cabinet....................................  CAB
  Cage.......................................  CAG
  Can........................................  CAN
  Carrier....................................  CAR
  Case.......................................  CAS
  Cntnrs of Bulk Cargo.......................  CBC
  Carboy.....................................  CBY
  Can Case...................................  CCS
  Cheeses....................................  CHE
  Core.......................................  COR
  Cradle.....................................  CRD
  Crate......................................  CRT
  Cask.......................................  CSK
  Carton.....................................  CTN
  Cylinder...................................  CYL
  Dry Bulk...................................  DBK
  Double-length Rack.........................  DRK
  Drum.......................................  DRM
  Double-length Skid.........................  DSK
  Double-length..............................  DTB
  Firkin.....................................  FIR
  Flo-Bin....................................  FLO
  Frame......................................  FRM
  Flask......................................  FSK
  Forward Reel...............................  FWR
  Garment on Hanger..........................  GOH
  Heads of Beef..............................  HED
  Hogshead...................................  HGH
  Hopper Car.................................  HPC
  Hopper Truck...............................  HPT
  On Hanger/Rack in bx.......................  HRB
  Half-Standard Rack.........................  HRK
  Half-Stand. Tote Bin.......................  HTB
  Jar........................................  JAR
  Keg........................................  KEG
  Kit........................................  KIT
  Knockdown Rack.............................  KRK
  Knockdown Wood Crates......................  KWC
  Knockdown Tote Bin.........................  KTB
  Liquid Bulk................................  LBK
  Lifts......................................  LIF
  Log........................................  LOG
  Loose......................................  LSE
  Lug........................................  LUG
  Lift Van...................................  LVN
  Multi-roll Pak.............................  MRP
  Noil.......................................  NOL
  Nested.....................................  NST
  Pail.......................................  PAL
  Packed--NOS................................  PCK
  Pieces.....................................  PCS
  Pirns......................................  PIR
  Package....................................  PKG
  Platform...................................  PLF
  Pipe Line..................................  PLN
  Pallet.....................................  PLT
  Private Vehicle............................  POV
  Pipe Rack..................................  PRK
  Quarters of Beef...........................  QTR
  Rail (semiconductor).......................  RAL
  Rack.......................................  RCK
  Reel.......................................  REL
  Roll.......................................  ROL
  Reverse Reel...............................  RVR
  Sack.......................................  SAK
  Shook......................................  SHK
  Sides of Beef..............................  SID
  Skid.......................................  SKD
  Skid, Elev, Lift Trk.......................  SKE
  Sleeve.....................................  SLV
  Spin Cylinders.............................  SPI
  Spool......................................  SPL
  Tube.......................................  TBE
  Tote Bin...................................  TBN
  Tank Car Rail..............................  TKR
  Tank Truck.................................  TKT
  Intermdl Trlr/Cntnr........................  TLD
  Tank.......................................  TNK
  Tierce.....................................  TRC
  Trunk and Chest............................  TRK
  Tray.......................................  TRY
  Trunk, Salesmen Samp.......................  TSS
  Tub........................................  TUB
  Unpacked...................................  UNP
  Unit.......................................  UNT
  Vehicles...................................  VEH
  Van Pack...................................  VPK
  On Own Wheels..............................  WHE
  Wheeled Carrier............................  WLC
  Wood Crates................................  WC
  Wrapped....................................  WRP
  Not Applicable.............................  N/A
K. Shipment Stowage Location Codes:
  Not Applicable.............................  N/A
  On Deck....................................  OD
  Bottom Stowage.............................  BS
L. Hazard Codes:
  Not Applicable.............................  N/A
  IMD Stow Category A........................  A
  IMD Stow Category B........................  B
  IMD Stow Category C........................  C
  IMD Stow Category D........................  D
  IMD Stow Category E........................  E
  Hazardous..................................  HAZ
  Non-Hazardous..............................  NHZ
M. Stuffing/Stripping Modes:
  Not Applicable.............................  N/A
  Mechanical.................................  MECH
  Hand Loading...............................  HAND
N. Inland Transportation Modes:
  Not Applicable.............................  N/A
  Motor......................................  M
  Rail.......................................  R
  Barge......................................  B
  Motor/Rail.................................  MR
  Rail/Motor.................................  RM
  Motor/Barge................................  MB
  Barge/Motor................................  BM
  Rail/Barge.................................  RB
  Barge/Rail.................................  BR
O. Shipment Service Types:
  Barge......................................  B
  Door.......................................  D
  House......................................  H
  Motor......................................  M
  Ocean Port.................................  O
  Pier.......................................  P
  Rail Yard..................................  R
  Container Station..........................  S
  Terminal...................................  T
  Container Yard.............................  Y
  Rail Siding................................  U
  Team Tracks................................  X
P. Freight Forwarder/Broker Type Codes:
  Not Applicable.............................  N/A
  Freight Forwarder..........................  FF
  Customs House Broker.......................  CB
  Other......................................  OTH
Q. Tariff Type Codes:
  Bill of Lading Tariff......................  BL
  Equipment Interchange Agreement Tariff.....  EI
  Essential Terms Publication................  ET

[[Page 181]]

 
  Foreign Commodity Tariff...................  FC
  Foreign Rules Tariff.......................  FR
  Terminal Tariff............................  TM
  Service Contracts..........................  SC
------------------------------------------------------------------------



PART 525_MARINE TERMINAL OPERATOR SCHEDULES--Table of Contents



Sec.
525.1 Purpose and scope.
525.2 Terminal schedules.
525.3 Availability of marine terminal operator schedules.
525.4 OMB Control number assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 46 U.S.C. 40102, 40501, 41101-41106.

    Source: 64 FR 9283, Feb. 25, 1999, unless otherwise noted.



Sec. 525.1  Purpose and scope.

    (a) Purpose. This part implements the Shipping Act of 1984, as 
amended by the Ocean Shipping Reform Act of 1998 and the Coast Guard 
Authorization Act of 1998. The form and manner requirements of this part 
are necessary to enable the Commission to meet its responsibilities with 
regard to identifying and preventing unreasonable preference or 
prejudice and unjust discrimination pursuant to section 10 of the Act 
(46 U.S.C. 41101-41106).
    (b) Scope. This part sets forth the regulations for the publication 
of terminal schedules by marine terminal operators. Information made 
available under this part may be used to determine marine terminal 
operators' compliance with shipping statutes and regulations.
    (c) Definitions. The following definitions apply to the regulations 
of this part:
    (1) Act means the Shipping Act of 1984, as amended by the Ocean 
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of 
1998.
    (2) Bulk cargo means cargo that is loaded and carried in bulk 
without mark or count, in a loose unpackaged form, having homogenous 
characteristics. Bulk cargo loaded into intermodal equipment, except 
LASH or Seabee barges, is subject to mark and count and is, therefore, 
subject to the requirements of this part.
    (3) Checking means the service of counting and checking cargo 
against appropriate documents for the account of the cargo or the 
vessel, or other person requesting same.
    (4) Commission means the Federal Maritime Commission.
    (5) Dockage means the charge assessed against a vessel for berthing 
at a wharf, pier, bulkhead structure, or bank or for mooring to a vessel 
so berthed.
    (6) Effective date means the date a schedule or an element of a 
schedule becomes effective. Where there are multiple publications on the 
same day, the last schedule or element of a schedule published with the 
same effective date is the one effective for that day.
    (7) Expiration date means the last day, after which the entire 
schedule or a single element of the schedule, is no longer in effect.
    (8) Forest products means forest products including, but not limited 
to, lumber in bundles, rough timber, ties, poles, piling, laminated 
beams, bundled siding, bundled plywood, bundled core stock or veneers, 
bundled particle or fiber boards, bundled hardwood, wood pulp in rolls, 
wood pulp in unitized bales, paper and paper board in rolls or in pallet 
or skid-sized sheets, liquid or granular by-products derived from 
pulping and papermaking, and engineering wood products.
    (9) Free time means the period specified in the terminal schedule 
during which cargo may occupy space assigned to it on terminal property, 
including off-dock facilities, free of wharf demurrage or terminal 
storage charges immediately prior to the loading or subsequent to the 
discharge of such cargo on or off the vessel.
    (10) Handling means the service of physically moving cargo between 
point of rest and any place on the terminal facility, other than the end 
of ship's tackle.
    (11) Heavy lift means the service of providing heavy lift cranes and 
equipment for lifting cargo.
    (12) Loading and unloading means the service of loading or unloading 
cargo between any place on the terminal and railroad cars, trucks, 
lighters or barges or any other means of conveyance to or from the 
terminal facility.
    (13) Marine terminal operator means a person engaged in the United 
States or

[[Page 182]]

a commonwealth, territory, or possession thereof, 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, 
United States Code. A marine terminal operator includes, but is not 
limited to, terminals owned or operated by states and their political 
subdivisions; railroads who perform port terminal services not covered 
by their line haul rates; common carriers who perform port terminal 
services; and warehousemen who operate port terminal facilities. For the 
purposes of this part, marine terminal operator includes conferences of 
marine terminal operators.
    (14) Organization name means an entity's name on file with the 
Commission and for which the Commission assigns an organizational 
number.
    (15) Person includes individuals, firms, partnerships, associations, 
companies, corporations, joint stock associations, trustees, receivers, 
agents, assignees and personal representatives.
    (16) Rate means a price quoted in a schedule for providing a 
specified level of marine terminal service or facility for a stated 
cargo quantity, on and after a stated effective date or within a defined 
time frame.
    (17) Schedule means a publication containing the actual rates, 
charges, classifications, regulations and practices of a marine terminal 
operator. The term ``practices'' refers to those usages, customs or 
modes of operation which in any way affect, determine or change the 
rates, charges or services provided by a marine terminal operator.
    (18) Terminal facilities means one or more structures comprising a 
terminal unit, which include, but are not limited to, wharves, 
warehouses, covered and/or open storage spaces, cold storage plants, 
cranes, grain elevators and/or bulk cargo loading and/or unloading 
structures, landings, and receiving stations, used for the transmission, 
care and convenience of cargo and/or passengers in the interchange of 
same between land and water carriers or between two water carriers.
    (19) Terminal services includes checking, dockage, free time, 
handling, heavy lift, loading and unloading, terminal storage, usage, 
wharfage, and wharf demurrage, as defined in this section. The 
definitions of terminal services set forth in this section shall be set 
forth in terminal schedules, except that other definitions of terminal 
services may be used if they are correlated by footnote, or other 
appropriate method, to the definitions set forth herein. Any additional 
services which are offered shall be listed and charges therefor shall be 
shown in the terminal schedule.
    (20) Terminal storage means the service of providing warehouse or 
other terminal facilities for the storage of inbound or outbound cargo 
after the expiration of free time, including wharf storage, shipside 
storage, closed or covered storage, open or ground storage, bonded 
storage and refrigerated storage.
    (21) Usage means the use of a terminal facility by any rail carrier, 
lighter operator, trucker, shipper or consignee, its agents, servants, 
and/or employees, when it performs its own car, lighter or truck loading 
or unloading, or the use of said facilities for any other gainful 
purpose for which a charge is not otherwise specified.
    (22) Wharf demurrage means a charge assessed against cargo remaining 
in or on terminal facilities after the expiration of free time, unless 
arrangements have been made for storage.
    (23) Wharfage means a charge assessed against the cargo or vessel on 
all cargo passing or conveyed over, onto, or under wharves or between 
vessels (to or from barge, lighter, or water), when berthed at wharf or 
when moored in slip adjacent to a wharf. Wharfage is solely the charge 
for use of a wharf and does not include charges for any other service.

[64 FR 9283, Feb. 25, 1999, as amended at 74 FR 50723, Oct. 1, 2009]



Sec. 525.2  Terminal schedules.

    (a) Marine terminal operator schedules. A marine terminal operator, 
at its discretion, may make available to the public, subject to section 
10(d) of the Act (46 U.S.C. 41102(c), 41103, 41106), a

[[Page 183]]

schedule of its rates, regulations, and practices.
    (1) Limitations of liability. Any limitations of liability for cargo 
loss or damage pertaining to receiving, delivering, handling, or storing 
property at the marine terminal contained in a terminal schedule must be 
consistent with domestic law and international conventions and 
agreements adopted by the United States; such terminal schedules cannot 
contain provisions that exculpate or relieve marine terminal operators 
from liability for their own negligence, or that impose upon others the 
obligation to indemnify or hold-harmless the terminals from liability 
for their own negligence.
    (2) Enforcement of terminal schedules. Any schedule that is made 
available to the public by the marine terminal operator shall be 
enforceable by an appropriate court as an implied contract between the 
marine terminal operator and the party receiving the services rendered 
by the marine terminal operator, without proof that such party has 
actual knowledge of the provisions of the applicable terminal schedule.
    (3) Contracts for terminal services. If the marine terminal operator 
has an actual contract with a party covering the services rendered by 
the marine terminal operator to that party, an existing terminal 
schedule covering those same services shall not be enforceable as an 
implied contract.
    (b) Cargo types not subject to this part. (1) Except as set forth in 
paragraph (b)(2) of this section, this part does not apply to bulk 
cargo, forest products, recycled metal scrap, new assembled motor 
vehicles, waste paper and paper waste in terminal schedules.
    (2) Marine terminal operators which voluntarily make available 
terminal schedules covering any of the commodities identified in 
paragraph (b)(1) of this section thereby subject their services with 
respect to those commodities to the requirements of this part.
    (c) Marine terminal operator agreements. The regulations relating to 
agreements to which a marine terminal operator is a party are located at 
part 535 of this chapter.

[64 FR 9283, Feb. 25, 1999, as amended at 74 FR 50723, Oct. 1, 2009]



Sec. 525.3  Availability of marine terminal operator schedules.

    (a) Availability of terminal schedules--(1) Availability to the 
Commission. A complete and current set of terminal schedules used by a 
marine terminal operator, or to which it is a party, shall be maintained 
in its office(s) for a period of five (5) years, whether or not made 
available to the public, and shall promptly be made available to the 
Commission upon request.
    (2) Availability to the public. Any terminal schedule that is made 
available to the public shall be available during normal business hours 
and in electronic form. The public may be assessed a reasonable 
nondiscriminatory charge for access to the terminal schedules; no charge 
will be assessed against the Commission.
    (b) Access to electronically published schedules. Marine terminal 
operators shall provide access to their terminal schedules via a 
personal computer (PC) by:
    (1) Dial-up connection via public switched telephone networks 
(PSTN); or
    (2) The Internet (Web) by:
    (i) Web browser; or
    (ii) Telnet session.
    (c) Dial-up connection via PSTN. (1) This connection option requires 
that terminal schedules provide:
    (i) A minimum of a 14.4Kbps modem capable of receiving incoming 
calls,
    (ii) Smart terminal capability for VT-100 terminal or terminal 
emulation access, and
    (iii) Telephone line(s) quality for data transmission.
    (2) The modem may be included in a collection (bank) of modems as 
long as all modems in the bank meet the minimum speed. Smart terminal 
emulation provides for features such as bold, blinking, underlining and 
positioning to specific locations on the display screen.
    (d) Internet connection. (1) This connection option requires that 
systems provide:
    (i) A universal resource locator (URL) Internet address (e.g., 
http://www.tariffsrus.com or http://1.2.3.4), and/or
    (ii) A universal resource locator (URL) Internet address (e.g., 
telnet://

[[Page 184]]

tariffsrus or telnet://1.2.3.4), for Telnet session access over the 
Internet.
    (2) Marine terminal operators shall ensure that their Internet 
service providers shall provide static Internet addresses.
    (e) Commission access. Commission telecommunications access to 
systems must include connectivity via a dial-up connection over public 
switched telephone networks (PSTN) or a connection over the Internet. 
Connectivity will be provided at the expense of the publishers. Any 
recurring connection fees, hardware rental fees, usage fees or any other 
charges associated with the availability of the system are the 
responsibility of the publisher. The Commission shall only be 
responsible for the long-haul charges for PSTN calls to a terminal 
schedule initiated by the Commission.
    (f) Notification. Each marine terminal operator shall notify the 
Commission's Bureau of Tariffs, Certification and Licensing (``BTCL''), 
prior to the commencement of marine terminal operations, of its 
organization name, organization number, home office address, name and 
telephone number of firm's representative, the location of its terminal 
schedule(s), and the publisher, if any, used to maintain its terminal 
schedule, by electronically submitting Form FMC-1 via the Commission's 
website at www.fmc.gov. Any changes to the above information shall be 
immediately transmitted to BTCL. The Commission will publish a list on 
its website of the location of any terminal schedule made available to 
the public.
    (g) Form and manner. Each terminal schedule made available by a 
marine terminal operator shall contain an individual identification 
number, effective date, expiration date, if any, and the complete 
terminal schedule in full text and/or data format showing all its rates, 
charges, and regulations relating to or connected with the receiving, 
handling, storing, and/or delivering of property at its terminal 
facilities.



Sec. 525.4  OMB control number assigned pursuant to the Paperwork
Reduction Act.

    The Commission has received Office of Management and Budget approval 
for this collection of information 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-
0061.



PART 530_SERVICE CONTRACTS--Table of Contents



                      Subpart A_General Provisions

Sec.
530.1 Purpose.
530.2 Scope and applicability.
530.3 Definitions.
530.4 Confidentiality.
530.5 Duty to file.
530.6 Certification of shipper status.
530.7 Duty to labor organizations.

                      Subpart B_Filing Requirements

530.8 Service contracts.
530.9 Notices.
530.10 Amendment, correction, cancellation, and electronic transmission 
          errors.
530.11 [Reserved]

                Subpart C_Publication of Essential Terms

530.12 Publication.

                 Subpart D_Exceptions and Implementation

530.13 Exceptions and exemptions.
530.14 Implementation.

                    Subpart E_Recordkeeping and Audit

530.15 Recordkeeping and audit.
530.91 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

Appendix A to Part 530--Instructions for the Filing of Service Contracts
Exhibit 1 to Part 530--Service Contract Registration [Form FMC-83]

    Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40301-40306, 40501-40503, 
41307.

    Source: 64 FR 11206, Mar. 8, 1999, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 530.1  Purpose.

    The purpose of this part is to facilitate the filing of service 
contracts and the publication of certain essential terms of those 
service contracts as required by section 8(c) of the Shipping Act of 
1984 (``the Act'') (46 U.S.C. 40502). This part enables the Commission 
to

[[Page 185]]

review service contracts to ensure that these contracts and the parties 
to them comport with the requirements of the Act. This part also 
implements electronic filing provisions for service contracts to 
facilitate compliance and minimize the filing burdens on the oceanborne 
commerce of the United States.

[64 FR 11206, Mar. 8, 1999, as amended at 74 FR 50723, Oct. 1, 2009]



Sec. 530.2  Scope and applicability.

    An individual ocean common carrier or an agreement between or among 
ocean common carriers may enter into a service contract with one or more 
shippers subject to the requirements of the Act.



Sec. 530.3  Definitions.

    When used in this part:
    (a) Act means the Shipping Act of 1984 as amended by the Ocean 
Shipping Reform Act of 1998.
    (b) Agreement means an understanding, arrangement, or association 
(written or oral) and any modification or cancellation thereof which has 
been filed and effective under part 535 of this chapter with the 
Commission. The term does not include a maritime labor agreement.
    (c) Authorized person means a carrier or a duly appointed agent who 
is authorized to file service contracts on behalf of the carrier party 
to a service contract and to publish the corresponding statement of 
essential terms and is registered by the Commission to file under Sec. 
530.5(d) and appendix A to this part.
    (d) BTCL means the Commission's Bureau of Tariffs, Certification and 
Licensing or its successor bureau.
    (e) Commission means the Federal Maritime Commission.
    (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 means an agreement between or among two or more ocean 
common carriers which provides for the fixing of and adherence to 
uniform 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.
    (h) Controlled carrier means an ocean common carrier that is, or 
whose operating assets are, directly or indirectly owned or controlled 
by a government. Ownership or control by a government shall be deemed to 
exist with respect to any ocean common carrier if:
    (1) A majority portion of the interest in the carrier is owned or 
controlled in any manner by that government, by any agency thereof, or 
by any public or private person controlled by that government; or
    (2) That government has the right to appoint or disapprove the 
appointment of a majority of the directors, the chief operating officer 
or the chief executive officer of the carrier.
    (i) Effective date means the date upon which a service contract or 
amendment is scheduled to go into effect by the parties to the contract. 
A service contract or amendment becomes effective at 12:01 a.m. Eastern 
Standard Time on the beginning of the effective date. The effective date 
cannot be prior to the filing date of the service contract or amendment 
with the Commission.
    (j) Expiration date means the last day after which the entire 
service contract is no longer in effect.

[[Page 186]]

    (k) File or filing (of service contracts or amendments thereto) 
means the use of the Commission's electronic filing system for receipt 
of a service contract or an amendment thereto by the Commission, 
consistent with the method set forth in appendix A of this part, and the 
recording of its receipt by the Commission.
    (l) Labor agreement means a collective-bargaining agreement between 
an employer subject to the Act, or group of such employers, and a labor 
organization or an agreement preparatory to such a collective-bargaining 
agreement among members of a multi-employer bargaining group, or an 
agreement specifically implementing provisions of such a collective-
bargaining agreement or providing for the formation, financing, or 
administration of a multi-employer bargaining group, but the term does 
not include an assessment agreement.
    (m) Motor vehicle means a wheeled vehicle whose primary purpose is 
ordinarily the non-commercial transportation of passengers, including an 
automobile, pickup truck, minivan or sport utility vehicle.
    (n) Ocean common carrier means a common carrier that operates, for 
all or part of its common carrier service, a vessel 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.
    (o) OIRM means the Commission's Office of Information and Resources 
Management.
    (p) Non-vessel-operating common carrier (``NVOCC'') means an ocean 
transportation intermediary as defined by section 3(17)(B) of the Act 
(46 U.S.C. 40102(16)).
    (q) Service contract means a written contract, other than a bill of 
lading or 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 makes a commitment to provide a certain minimum 
quantity or portion of its cargo or freight revenue over a fixed time 
period, and the individual 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.
    (r) Shipper means a cargo owner; the person for whose account the 
ocean transportation is provided; the person to whom delivery is to be 
made; a shippers' association; or an NVOCC that accepts responsibility 
for payment of all applicable charges under the service contract.
    (s) Statement of essential terms means a concise statement of the 
essential terms of a service contract required to be published under 
Sec. 530.12 of this part.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 23792, May 4, 1999; 64 
FR 41042, July 29, 1999; 65 FR 26513, May 8, 2000; 74 FR 50723, Oct. 1, 
2009]



Sec. 530.4  Confidentiality.

    All service contracts and amendments to service contracts filed with 
the Commission shall, to the full extent permitted by law, be held in 
confidence. Nothing contained in this part shall preclude the Commission 
from providing certain information from or access to service contracts 
to another agency of the Federal government of the United States.



Sec. 530.5  Duty to file.

    (a) The duty under this part to file service contracts, amendments 
and notices, and to publish statements of essential terms shall be upon 
the individual carrier party or parties participating or eligible to 
participate in the service contract.
    (b) Filing may be accomplished by any duly agreed-upon agent, as the 
parties to the service contract may designate, and subject to conditions 
as the parties may agree.
    (c) Registration--(1) Application. Authority to file or delegate the 
authority to file must be requested by a responsible official of the 
service contract carrier in writing by submitting to BTCL the 
Registration Form (FMC-83) in Exhibit 1 to this part.
    (2) Approved registrations. OIT shall provide approved Registrants a 
log-on

[[Page 187]]

ID and password for filing and amending service contracts and notify 
Registrants of such approval.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 41042, July 29, 1999; 76 
FR 11680, Mar. 3, 2011]



Sec. 530.6  Certification of shipper status.

    (a) Certification. The shipper contract party shall sign and certify 
on the signature page of the service contract its shipper status (e.g., 
owner of the cargo, shippers' association, NVOCC, or specified other 
designation), and the status of every affiliate of such contract party 
or member of a shippers' association entitled to receive service under 
the contract.
    (b) Proof of tariff and financial responsibility. If the 
certification completed by the contract party under paragraph (a) of 
this section identifies the contract party or an affiliate or member of 
a shippers' association as an NVOCC, the ocean common carrier, 
conference or agreement shall obtain proof that such NVOCC has a 
published tariff and proof of financial responsibility as required under 
sections 8 (46 U.S.C. 40501-40503) and 19 (46 U.S.C. 40901-40904) of the 
Act before signing the service contract. An ocean common carrier, 
conference or agreement can obtain such proof by the same methods 
prescribed in Sec. 515.27 of this chapter.
    (c) Joining shippers' association during term of contract. If an 
NVOCC joins a shippers' association during the term of a service 
contract and is thereby entitled to receive service under the contract, 
the NVOCC shall provide to the ocean common carrier, agreement or 
conference the proof of compliance required by paragraph (b) of this 
section prior to making any shipments under the contract.
    (d) Reliance on NVOCC proof; independent knowledge. An ocean common 
carrier, agreement or conference executing a service contract shall be 
deemed to have complied with section 10(b)(12) of the Act (46 U.S.C. 
41104(12)) upon meeting the requirements of paragraphs (a) and (b) of 
this section, unless the carrier party had reason to know such 
certification or documentation of NVOCC tariff and bonding was false.

[64 FR 11206, Mar. 8, 1999, as amended at 74 FR 50723, Oct. 1, 2009]



Sec. 530.7  Duty to labor organizations.

    (a) Terms. When used in this section, the following terms will have 
these meanings:
    (1) Dock area and within the port area shall have the same meaning 
and scope as defined in the applicable collective bargaining agreement.
    (2) Reasonable period of time ordinarily means:
    (i) If the cargo in question is due to arrive in less than five (5) 
days from the date of receipt of the request as defined in paragraph (b) 
of this section, two (2) days from the date of receipt of the request; 
but
    (ii) If cargo in question is due to arrive in more than five (5) 
days from the date of receipt of the request as defined in paragraph (b) 
of this section, four (4) days from the date of receipt of the request.
    (3) Movement includes, but is not necessarily limited to, the normal 
and usual aspects of the loading and discharging of cargo in containers; 
placement, positioning and re-positioning of cargo or of containers; the 
insertion and removal of cargo into and from containers; and the storage 
and warehousing of cargo.
    (4) Assignment includes, but is not limited to, the carrier's direct 
or indirect control over the parties which, the manner by which, or the 
means by which the shipper's cargo is moved, regardless of whether such 
movement is completed within or outside of containers.
    (5) Transmit means communication by first-class mail, facsimile, 
telegram, hand-delivery, or electronic mail (``e-mail'').
    (b) Procedure. In response to a written request transmitted from a 
labor organization with which it is a party or is subject to the 
provisions of a collective bargaining agreement with a labor 
organization, an ocean common carrier shall state, within a reasonable 
period of time, whether it is responsible for the following work at dock 
areas and within port areas in the United States

[[Page 188]]

with respect to cargo transported under a service contract:
    (1) The movement of the shipper's cargo on a dock area or within the 
port area or to or from railroad cars on a dock area or within a port 
area;
    (2) The assignment of intraport carriage of the shipper's cargo 
between areas on a dock or within the port area;
    (3) The assignment of the carriage of the shipper's cargo between a 
container yard on a dock area or within the port area and a rail yard 
adjacent to such container yard; or
    (4) The assignment of container freight station work and maintenance 
and repair work performed at a dock area or within the port area.
    (c) Applicability. This section requires the disclosure of 
information by an ocean common carrier only if there exists an 
applicable and otherwise lawful collective bargaining agreement which 
pertains to that carrier.
    (d) Disclosure not deemed admission or agreement. No disclosure made 
by an ocean common carrier shall be deemed to be an admission or 
agreement that any work is covered by a collective bargaining agreement.
    (e) Dispute resolution. Any dispute regarding whether any work is 
covered by a collective bargaining agreement and the responsibility of 
the ocean common carrier under such agreement shall be resolved solely 
in accordance with the dispute resolution procedures contained in the 
collective bargaining agreement and the National Labor Relations Act, 
and without reference to this section.
    (f) Jurisdiction and lawfulness. Nothing in this section has any 
effect on the lawfulness or unlawfulness under the Shipping Act of 1984, 
the National Labor Relations Act, the Taft-Hartley Act, the Federal 
Trade Commission Act, the antitrust laws, or any other federal or state 
law, or any revisions or amendments thereto, of any collective 
bargaining agreement or element thereof, including any element that 
constitutes an essential term of a service contract under section 8(c) 
of the Act (46 U.S.C. 40502).

[64 FR 11206, Mar. 8, 1999, as amended at 74 FR 50723, Oct. 1, 2009]



                      Subpart B_Filing Requirements



Sec. 530.8  Service Contracts.

    (a) Authorized persons shall file with BTCL, in the manner set forth 
in appendix A of this part, a true and complete copy of every service 
contract or amendment to a filed service contract before any cargo moves 
pursuant to that service contract or amendment.
    (b) Every service contract filed with the Commission shall include 
the complete terms of the service contract including, but not limited 
to, the following:
    (1) The origin port ranges in the case of port-to-port movements and 
geographic areas in the case of through intermodal movements;
    (2) The destination port ranges in the case of port-to-port 
movements and geographic areas in the case of through intermodal 
movements;
    (3) The commodity or commodities involved;
    (4) The minimum volume or portion;
    (5) The service commitments;
    (6) The line-haul rate;
    (7) Liquidated damages for non-performance (if any);
    (8) Duration, including the
    (i) Effective date; and
    (ii) Expiration date;
    (9) The legal names and business addresses of the contract parties; 
the legal names of affiliates entitled to access the contract; the 
names, titles and addresses of the representatives signing the contract 
for the parties; and the date upon which the service contract was 
signed, except that in the case of a contract entered under the 
authority of an agreement or by a shippers' association, individual 
members need not be named unless the contract includes or excludes 
specific members. Subsequent references in the contract to the contract 
parties shall be consistent with the first reference (e.g., (exact 
name), ``carrier,'' ``shipper,'' or ``association,'' etc.). Carrier 
parties which enter into contracts that include affiliates must either:
    (i) List the affiliates' business addresses; or
    (ii) Certify that this information will be provided to the 
Commission upon request within ten (10) business days of

[[Page 189]]

such request. However, the requirements of this section do not apply to 
amendments to contracts that have been filed in accordance with the 
requirements of this section unless the amendment adds new parties or 
affiliates;
    (10) A certification of shipper status;
    (11) A description of the shipment records which will be maintained 
to support the service contract and the address, telephone number, and 
title of the person who will respond to a request by making shipment 
records available to the Commission for inspection under Sec. 530.15 of 
this part; and
    (12) All other provisions of the contract.
    (c) Certainty of terms. The terms described in paragraph (b) of this 
section may not:
    (1) Be uncertain, vague or ambiguous; or
    (2) Make reference to terms not explicitly contained in the service 
contract itself unless those terms are readily available to the parties 
and the Commission.
    (3) Pursuant to Sec. 530.15(c), the carrier party to the service 
contract must, upon written request by the Commission, provide the 
Commission with the associated records of the referenced terms. For the 
purpose of paragraph (c)(2) of this section, the referenced terms will 
be deemed readily available to the Commission if the carrier party to 
the service contract provides the Commission with the associated records 
of the terms within thirty (30) days of the Commission's written 
request.
    (d) Other requirements. Every service contract filed with BTCL shall 
include, as set forth in appendix A to this part by:
    (1) A unique service contract number of more than one (1) but less 
than ten (10) alphanumeric characters in length (``SC Number''); and
    (2) A consecutively numbered amendment number no more than three 
digits in length, with initial service contracts using ``0''(``Amendment 
number'');
    (3) The filed FMC Agreement Number(s) assigned by the Commission 
under 46 CFR part 535 (if applicable); and
    (4) An indication of the method by which the statement of essential 
terms will be published.
    (e) Exception in case of malfunction of Commission filing system. 
(1) In the event that the Commission's filing systems are not 
functioning and cannot receive service contract filings for twenty-four 
(24) continuous hours or more, affected parties will not be subject to 
the requirements of paragraph (a) of this section and Sec. 530.14(a) 
that a service contract be filed before cargo is shipped under it.
    (2) However, service contracts which go into effect before they are 
filed, pursuant to paragraph (e)(1) of this section, must be filed 
within twenty-four (24) hours of the Commission's filing systems' return 
to service.
    (3) Failure to file a service contract that goes into effect before 
it is filed, pursuant to paragraph (e)(1) of this section, within 
twenty-four (24) hours of the Commission's filing systems' return to 
service will be considered a violation of Commission regulations.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 23793, May 4, 1999; 64 
FR 41042, July 29, 1999; 77 FR 13510, Mar. 7, 2012]



Sec. 530.9  Notices.

    Within thirty (30) days of the occurrence of any event listed below, 
there shall be filed with the Commission, pursuant to the same 
procedures as those followed for the filing of an amendment pursuant to 
Sec. 530.10 and appendix A to this part, a detailed notice of:
    (a) Correction (clerical or administrative errors);
    (b) Cancellation (as defined in Sec. 530.10(a)(3));
    (c) Adjustment of accounts, by re-rating, liquidated damages, or 
otherwise;
    (d) Final settlement of any account adjusted as described in 
paragraph (c) of this section; and
    (e) Any change to:
    (1) The name of a basic contract party; or
    (2) The list of affiliates under Sec. 530.8(b)(9), including 
changes to legal names and business addresses, of any contract party 
entitled to receive or authorized to offer services under the contract.

[[Page 190]]



Sec. 530.10  Amendment, correction, cancellation, and electronic 
transmission errors.

    (a) Terms. When used in this section, the following terms will have 
these meanings:
    (1) Amendment means any change to a service contract which has 
prospective effect and which is mutually agreed upon by the service 
contract parties.
    (2) Correction means any change to a service contract which has 
retroactive effect.
    (3) Cancellation means an event which is unanticipated by the 
service contract, in liquidated damages or otherwise, and is due to the 
failure of the shipper party to tender minimum cargo as set forth in the 
contract, unless such tender was made impossible by an action of the 
carrier party.
    (b) Amendment. Service contracts may be amended by mutual agreement 
of the parties to the contract. Amendments shall be filed electronically 
with the Commission in the manner set forth in Sec. 530.8 and appendix 
A to this part.
    (1) Where feasible, service contracts should be amended by amending 
only the affected specific term(s) or subterms.
    (2) Each time any part of a service contract is amended, the filer 
shall assign a consecutive amendment number (up to three digits), 
beginning with the number ``1.''
    (3) Each time any part of the service contract is amended, the 
``Filing Date'' will be the date of filing of the amendment.
    (c) Corrections. Requests shall be filed, in duplicate, with the 
Commission's Office of the Secretary within forty-five (45) days of the 
contract's filing with the Commission, accompanied by remittance of a 
$315 service fee, and shall include:
    (1) A letter of transmittal explaining the purpose of the 
submission, and providing specific information to identify the initial 
or amended service contract to be corrected;
    (2) A paper copy of the proposed correct terms. Corrections shall be 
indicated as follows:
    (i) Matter being deleted shall be struck through; and
    (ii) Matter to be added shall immediately follow the language being 
deleted and be underscored;
    (3) An affidavit from the filing party attesting with specificity to 
the factual circumstances surrounding the clerical or administrative 
error, with reference to any supporting documentation;
    (4) Documents supporting the clerical or administrative error; and
    (5) A brief statement from the other party to the contract 
concurring in the request for correction.
    (6) If the request for correction is granted, the carrier, agreement 
or conference shall file the corrected contract provisions using a 
special case number as described in appendix A to this part.
    (d) Electronic transmission errors. An authorized person who 
experiences a purely technical electronic transmission error or a data 
conversion error in transmitting a service contract filing or an 
amendment thereto is permitted to file a Corrected Transmission (``CT'') 
of that filing within 48 hours of the date and time of receipt recorded 
in SERVCON (excluding Saturdays, Sundays and legal public holidays). 
This time-limited permission to correct an initial defective service 
contract filing is not to be used to make changes in the original 
service contract rates, terms or conditions that are otherwise provided 
for in paragraphs 530.10(b) and (c) of this section. The CT tab box in 
SERVCON must be checked at the time of resubmitting a previously filed 
service contract, and a description of the corrections made must be 
stated at the beginning of the corrected service contract in a comment 
box. Failure to check the CT box and enter a description of the 
correction will result in the rejection of a file with the same name, 
since documents with duplicate file names or service contract and 
amendment numbers are not accepted by SERVCON.
    (e) Cancellation. (1) An account may be adjusted for events and 
damages covered by the service contract. This shall include adjustment 
necessitated by either liability for liquidated damages appearing in the 
service contract as filed with the Commission under Sec. 530.8(b)(7), 
or the occurrence of an

[[Page 191]]

event described below in paragraph (d)(2) of this section.
    (2) In the event of cancellation as defined in Sec. 530.10(a)(3):
    (i) Further or continued implementation of the service contract is 
prohibited; and
    (ii) The cargo previously carried under the contract shall be re-
rated according to the otherwise applicable tariff provisions.
    (f) If the amendment, correction or cancellation affects an 
essential term required to be published under Sec. 530.12 of this part, 
the statement of essential terms shall be changed as soon as possible 
after the filing of the amendment to accurately reflect the change to 
the contract terms.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 23793, May 4, 1999; 67 
FR 39860, June 11, 2002; 68 FR 43327, July 22, 2003; 70 FR 10330, Mar. 
3, 2005]



Sec. 530.11  [Reserved]



                Subpart C_Publication of Essential Terms



Sec. 530.12  Publication.

    (a) Contents. All authorized persons who have a duty to file service 
contracts under Sec. 530.5 are also required to make available to the 
public, contemporaneously with the filing of each service contract with 
the Commission, and in tariff format, a concise statement of the 
following essential terms:
    (1) The port ranges:
    (i) Origin; and
    (ii) Destination;
    (2) The commodity or commodities involved;
    (3) The minimum volume or portion; and
    (4) The duration.
    (b) Certainty of terms. The terms described in paragraph (a) of this 
section may not:
    (1) Be uncertain, vague or ambiguous; or
    (2) Make reference to terms not explicitly detailed in the statement 
of essential terms, unless those terms are contained in a publication 
widely available to the public and well known within the industry.
    (c) Location--(1) Generally. The statement of essential terms shall 
be published as a separate part of the individual carrier's automated 
tariff system.
    (2) Multi-party service contracts. For service contracts in which 
more than one carrier participates or is eligible to participate, the 
statement of essential terms shall be published:
    (i) If the service contract is entered into under the authority of a 
conference agreement, then in that conference's automated tariff system;
    (ii) If the service contract is entered into under the authority of 
a non-conference agreement, then in each of the participating or 
eligible-to-participate carriers' individual automated tariff systems, 
clearly indicating the relevant FMC-assigned agreement number.
    (d) References. The statement of essential terms shall contain a 
reference to the ``SC Number'' as described in Sec. 530.8(d)(1).
    (e) Terms. (1) The publication of the statement of essential terms 
shall accurately reflect the terms as filed confidentially with the 
Commission.
    (2) If any of the published essential terms include information not 
required to be filed with the Commission but filed voluntarily, the 
statement of essential terms shall so note.
    (f) Agents. Common carriers, conferences, or agreements may use 
agents to meet their publication requirements under this part.
    (g) Commission listing. The Commission will publish on its website, 
www.fmc.gov, a listing of the locations of all service contract 
essential terms publications.
    (h) Updating statements of essential terms. To ensure that the 
information contained in a published statement of essential terms is 
current and accurate, the statement of essential terms publication shall 
include a prominent notice indicating the date of its most recent 
publication or revision. When the published statement of essential terms 
is affected by filed amendments, corrections, or cancellations, the 
current terms shall be changed and published as soon as possible in the 
relevant statement of essential terms.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 23793, May 4, 1999]

[[Page 192]]



                 Subpart D_Exceptions and Implementation



Sec. 530.13  Exceptions and exemptions.

    (a) Statutory exceptions. Service contracts for the movement of the 
following, as defined in section 3 of the Act (46 U.S.C. 40102), Sec. 
530.3 or Sec. 520.2 of this chapter, are excepted by section 8(c) of 
the Act (46 U.S.C. 40502) from the requirements of that section, and are 
therefore not subject to the requirements of this part:
    (1) Bulk cargo;
    (2) Forest products;
    (3) Recycled metal scrap;
    (4) New assembled motor vehicles; and
    (5) Waste paper or paper waste.
    (b) Commission exemptions. Exemptions from the requirements of this 
part are governed by section 16 of the Act (46 U.S.C. 40103) and Rule 67 
of the Commission's Rules of Practice and Procedure, Sec. 502.67 of 
this chapter. The following commodities and/or services are exempt from 
the requirements of this part:
    (1) Mail in foreign commerce. Transportation of mail between the 
United States and foreign countries.
    (2) Department of Defense cargo. Transportation of U.S. Department 
of Defense cargo moving in foreign commerce under terms and conditions 
negotiated and approved by the Military Transportation Management 
Command and published in a universal service contract. An exact copy of 
the universal service contract, including any amendments thereto, shall 
be filed with the Commission as soon as it becomes available.
    (c) Inclusion of excepted or exempted matter. (1) The Commission 
will not accept for filing service contracts which exclusively concern 
the commodities or services listed in paragraph (a) or (b) of this 
section.
    (2) Service contracts filed with the Commission may include the 
commodities or services listed in paragraph (a) or (b) of this section 
only if:
    (i) There is a tariff of general applicability for the 
transportation, which contains a specific commodity rate for the 
commodity or service in question; or
    (ii) The service contract itself sets forth a rate or charge which 
will be applied if the contract is canceled, as defined in Sec. 
530.10(a)(3).
    (d) Waiver. Upon filing a service contract pursuant to paragraph (c) 
of this section, the service contract shall be subject to the same 
requirements as those for service contracts generally.

[64 FR 23793, May 4, 1999, as amended at 74 FR 50724, Oct. 1, 2009]



Sec. 530.14  Implementation

    (a) Generally. Performance under a service contract or amendment 
thereto may not begin before the day it is effective and filed with the 
Commission.
    (b) Prohibition or suspension. When the filing parties receive 
notice that an initial or amended service contract has been prohibited 
under section 9(d) (46 U.S.C. 40704) or suspended under section 11 of 
the Act (46 U.S.C. 41301-41302, 41305-41307(a)):
    (1) Further or continued implementation of the service contract is 
prohibited;
    (2) All services performed under the contract shall be re-rated in 
accordance with the otherwise applicable tariff provisions for such 
services with notice to the shipper within five (5) days of the date of 
prohibition or suspension; and
    (3) Detailed notice shall be given to the Commission under Sec. 
530.9 within thirty (30) days of:
    (i) The re-rating or other account adjustment resulting from 
prohibition or suspension under paragraph (b)(2) of this section; or
    (ii) Final settlement of the account adjusted under Sec. 530.10.
    (c) Agreements. If the prohibited or suspended service contract was 
that of an agreement with no common tariff, the re-rating shall be in 
accordance with the published tariff rates of the carrier which 
transported the cargo in effect at the time.

[64 FR 11206, Mar. 8, 1999, as amended at 74 FR 50724, Oct. 1, 2009]

[[Page 193]]



                    Subpart E_Recordkeeping and Audit



Sec. 530.15  Recordkeeping and audit.

    (a) Records retention for five years. Every common carrier, 
conference or agreement shall maintain original signed service 
contracts, amendments, and their associated records in an organized, 
readily accessible or retrievable manner for a period of five (5) years 
from the termination of each contract.
    (b) (paragraph (b) is stayed until further notice.) Where 
maintained. (1) Service contract records shall be maintained in the 
United States, except that service contract records may be maintained 
outside the United States if the Chairman or Secretary of an agreement 
or President or Chief Executive Officer of the carrier certifies 
annually by January 1, on a form to be supplied by the Commission, that 
service contract records will be made available as provided in paragraph 
(c) of this section.
    (2) Penalty. If service contract records are not made available to 
the Commission as provided in paragraph (c) of this section, the 
Commission may cancel any carrier's or agreement's right to maintain 
records outside the United States pursuant to the certification 
procedure of paragraph (b) of this section.
    (c) Production for audit within 30 days of request. Every carrier or 
agreement shall, upon written request of the FMC's Director, Bureau of 
Enforcement, any Area Representative or the Director, Bureau of 
Economics and Agreements Analysis, submit copies of requested original 
service contracts or their associated records within thirty (30) days of 
the date of the request.
    (d) Agreement service contracts. In the case of service contracts 
made by agreements, the penalties for a failure to maintain records 
pursuant to this section shall attach jointly and severally on all of 
the agreement members participating in the service contract in question.



Sec. 530.91  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

    The Commission has received OMB approval for this collection of 
information 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. The valid control number for this 
collection of information is 3072-0065.



  Sec. Appendix A to Part 530--Instructions for the Filing of Service 
                                Contracts

    Service contracts shall be filed in accordance with the instructions 
found on the Commission's home page, http://www.fmc.gov.

                 A. Registration, Log-on ID and Password

    To register for filing, a carrier, conference, agreement or 
publisher must submit the Service Contract Registration Form (Form FMC-
83) to BTCL. A separate Service Contract Registration Form is required 
for each individual that will file service contracts. BTCL will direct 
OIRM to provide approved filers with a log-on ID and password. Filers 
who wish a third party (publisher) to file their service contracts must 
so indicate on Form FMC-83. Authority for organizational filing can be 
transferred by submitting an amended registration form requesting the 
assignment of a new log-on ID and password. The original log-on ID will 
be canceled when a replacement log-on ID is issued. Log-on IDs and 
passwords may not be shared with, loaned to or used by any individual 
other than the individual registrant. The Commission reserves the right 
to disable any log-on ID that is shared with, loaned to or used by 
parties other than the registrant.

                                B. Filing

    After receiving a log-on ID and a password, a filer may log-on to 
the service contract filing area on the Commission's home page and file 
service contracts. The filing screen will request such information as: 
filer name, Registered Persons Index (``RPI'') number and carrier RPI 
number (if different); Service Contract and amendment number; and 
effective date. The filer will attach the entire service contract file 
and submit it into the system. When the service contract has been 
submitted for filing, the system will assign a filing date and an FMC 
control number, both of which will be included in the acknowledgment/
confirmation message.

[64 FR 41042, July 29, 1999]

[[Page 194]]



 Sec. Exhibit 1 to Part 530--Service Contract Registration [Form FMC-83]
[GRAPHIC] [TIFF OMITTED] TR08MR99.023


[[Page 195]]



                      Instructions for Form FMC-83

                              Instructions

    Line 1. Registration. Indicate whether this is the initial (first 
time) registration or an amendment to an existing Service Contract 
Registration.
    Line 2. Registrant. This must be the full legal name of the firm or 
individual registering for the FMC's Service Contract Filing System and 
any trade names. The registrant name should match the corporate charter 
or business license, conference membership, etc. It should be noted that 
the registrant name cannot be changed by the registrant after the 
registration without submission of an amended registration fee.
    Line 3. Address of Home Office. The complete street address should 
be shown in addition to the post office box. Also, provide the 
registrant's Federal Taxpayer Identification Number (``TIN'' Number).
    Line 4. Billing Address if Different. This should be completed if 
the billing address differs from the home office address. Show the firm 
name (if different from the registrant), street address and post office 
box (if applicable).
    Line 5. Organization Number. Complete if known. (Regulated Persons 
Index or ``RPI'' number.)
    Line 6. Registrant Type. Indicate the type of organization. A 
registrant cannot be more than one type. This data cannot be changed by 
the registrant after registration without submission of an amended 
registration form.
    Line 7. Permissions Requested and Person Granted These Permissions. 
Delegation of the authority to file should be noted here.
    Maintenance of Organization Record--The person listed in line 8 is 
authorized to access the organization maintenance functions (i.e., 
modify organization information, assign publishers, affiliations, and d/
b/as).
    Service Contract Filing--The person listed in line 8 is authorized 
only to submit filings.
    Line 8. Certified for Batch Filing. Indicate whether the registrant 
was registered with software certified to perform batch filings prior to 
May 1, 1999. Otherwise, the registrant must first be certified for batch 
filing as outlined in 46 CFR part 530. After certification, the 
registrant can submit an amended registration form to request permission 
for a person in their organization to perform the batch filing. If the 
person already has an existing log-on, the log-on (not the password) 
should be listed on the registration form. Also, the certification date 
received from the FMC should be listed on the registration form.



PART 531_NVOCC SERVICE ARRANGEMENTS--Table of Contents



                      Subpart A_General Provisions

Sec.
531.1 Purpose.
531.2 Scope and applicability.
531.3 Definitions.
531.4 Confidentiality.
531.5 Duty to file.

                      Subpart B_Filing Requirements

531.6 NVOCC Service Arrangements.
531.7 Notices.
531.8 Amendment, correction, cancellation, and electronic transmission 
          errors.

                Subpart C_Publication of Essential Terms

531.9 Publication.

                 Subpart D_Exceptions and Implementation

531.10 Excepted and exempted commodities.
531.11 Implementation.

                    Subpart E_Recordkeeping and Audit

531.12 Recordkeeping and audit.
531.13-531.98 [Reserved]
531.99 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

Appendix A to Part 531--Instructions for the Filing of NVOCC Service 
          Arrangements
Exhibit 1 to Part 531--NVOCC Service Arrangement Registration [FORM FMC-
          78]

    Authority: 46 U.S.C. 40103.

    Source: 69 FR 75853, Dec. 20, 2004, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 531.1  Purpose.

    This part exempts NVOCCs from certain provisions of the Shipping 
Act. The purpose of this part is to facilitate the filing of NVOCC 
Service Arrangements (``NSAs'') and the publication of certain essential 
terms of those NSAs as they are exempt from the otherwise applicable 
provisions of the Shipping Act of 1984 (``the Act''). This part enables 
the Commission to review NSAs to ensure that they and the parties to 
them comport with the conditions of the exemption as set forth below.

[69 FR 75853, Dec. 20, 2004, as amended at 74 FR 50724, Oct. 1, 2009]

[[Page 196]]



Sec. 531.2  Scope and applicability.

    Only individual NVOCCs compliant with the requirements of section 19 
of the Act (46 U.S.C. 40901-40904) and the Commission's regulations at 
46 CFR part 515 may enter into an NSA with one or more NSA shippers 
subject to the requirements of these rules. Any NVOCC who has failed to 
maintain its bond or license or had its tariff suspended or cancelled by 
the Commission is ineligible to offer and file NSAs.

[69 FR 75853, Dec. 20, 2004, as amended at 74 FR 50724, Oct. 1, 2009]



Sec. 531.3  Definitions.

    When used in this part:
    (a) Act means the Shipping Act of 1984 as amended by the Ocean 
Shipping Reform Act of 1998;
    (b) Affiliate means two or more entities which are under common 
ownership or control by reason of being parent and subsidiary or 
entities associated with, under common control with, or otherwise 
related to each other through common stock ownership or common directors 
or officers.
    (c) Amendment means any change to a filed NSA which has prospective 
effect and which is mutually agreed upon by all parties to the NSA.
    (d) Authorized person means an NVOCC or duly appointed agent who is 
authorized to file NSAs on behalf of the NVOCC and to publish the 
corresponding statement of essential terms and is registered by the 
Commission to file under Sec. 531.5 and Appendix A to this part.
    (e) BTA means the Commission's Bureau of Trade Analysis, or its 
successor bureau.
    (f) BCL means the Commission's Bureau of Certification and 
Licensing, or its successor bureau.
    (g) Cancellation means an event which is unanticipated by the NSA, 
in liquidated damages or otherwise, and is due to the failure of the NSA 
shipper to tender minimum cargo as set forth in the contract, unless 
such tender was made impossible by an action of the NVOCC.
    (h) Commission or FMC means the Federal Maritime Commission.
    (i) 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.
    (j) Correction means any change to a filed NSA that has retroactive 
effect.
    (k) Effective date means the date upon which an NSA or amendment is 
scheduled to go into effect by the parties to the NSA. An NSA or 
amendment becomes effective at 12:01 a.m. Eastern Standard Time on the 
beginning of the effective date. The effective date cannot be prior to 
the filing date of the NSA or amendment with the Commission.
    (l) Expiration date means the last day after which the entire NSA is 
no longer in effect.
    (m) File or filing (of NSAs or amendments thereto) means the use of 
the Commission's electronic filing system for receipt of an NSA or an 
amendment thereto by the Commission, consistent with the method set 
forth in Appendix A of this part, and the recording of its receipt by 
the Commission.
    (n) OIT means the Commission's Office of Information Technology, or 
its successor office.
    (o) NSA shipper means a cargo owner, the person for whose account 
the ocean transportation is provided, the person

[[Page 197]]

to whom delivery is to be made, a shippers' association, or an ocean 
transportation intermediary, as defined in section 3(17)(B) of the Act 
(46 U.S.C. 40102(16)), that accepts responsibility for payment of all 
applicable charges under the NSA.
    (p) NVOCC Service Arrangement (``NSA'') means a written contract, 
other than a bill of lading or receipt, between one or more NSA shippers 
and an individual NVOCC or two or more affiliated NVOCCs, in which the 
NSA shipper makes a commitment to provide a certain minimum quantity or 
portion of its cargo or freight revenue over a fixed time period, and 
the NVOCC commits to a certain rate or rate schedule and a defined 
service level. The NSA may also specify provisions in the event of 
nonperformance on the part of any party.
    (q) Statement of essential terms means a concise statement of the 
essential terms of an NSA required to be published under this part.

[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 56580, Sept. 28, 2005; 
74 FR 50724, Oct. 1, 2009]



Sec. 531.4  Confidentiality.

    (a) All NSAs and amendments to NSAs filed with the Commission shall, 
to the fullest extent permitted by law, be held in confidence by the 
Commission.
    (b) Nothing contained in this part shall preclude the Commission 
from providing certain information from or access to NSAs to another 
agency of the Federal government of the United States.
    (c) Parties to a filed NSA may agree to disclose information 
contained in it. Breach of any confidentiality agreement contained in an 
NSA by either party will not, on its own, be considered a violation of 
these rules.



Sec. 531.5  Duty to file.

    (a) The duty under this part to file NSAs, amendments and notices, 
and to publish statements of essential terms, shall be upon the NVOCC 
acting as carrier party to the NSA.
    (b) The Commission shall not order any person to pay the difference 
between the amount billed and agreed upon in writing with a common 
carrier or its agent and the amount set forth in an NSA by that common 
carrier for the transportation service provided.
    (c) Filing may be accomplished by any duly agreed-upon agent, as the 
parties to the NSA may designate, and subject to conditions as the 
parties may agree.
    (d) Registration--(1) Application. Authority to file or delegate the 
authority to file must be requested by a responsible official of the 
NVOCC in writing by submitting to BTA, either by mail to 800 N. Capitol 
Street, NW., Washington, DC 20573, or by facsimile to (202) 523-5867, a 
completed NSA Registration Form (FMC-78)(Exhibit 1 to this part).
    (2) Approved registrations. OIT shall provide approved Registrants a 
log-on ID and password for filing and amending NSAs and notify 
Registrants of such approval.

[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 56580, Sept. 28, 2005; 
76 FR 11680, Mar. 3, 2011]



                      Subpart B_Filing Requirements



Sec. 531.6  NVOCC Service Arrangements.

    (a) Authorized persons shall file with BTA, in the manner set forth 
in Appendix A of this part, a true and complete copy of every NSA or 
amendment before any cargo moves pursuant to that NSA or amendment.
    (b) Every NSA filed with the Commission shall include the complete 
terms of the NSA including, but not limited to, the following:
    (1) The origin port ranges in the case of port-to-port movements and 
geographic areas in the case of through intermodal movements;
    (2) The destination port ranges in the case of port-to-port 
movements and geographic areas in the case of through intermodal 
movements;
    (3) The commodity or commodities involved;
    (4) The minimum volume or portion;
    (5) The service commitments;
    (6) The line-haul rate;
    (7) Liquidated damages for non-performance (if any);
    (8) Duration, including the
    (i) Effective date; and
    (ii) Expiration date;

[[Page 198]]

    (9) The legal names and business addresses of the NSA parties; the 
legal names of all affiliates of the NSA shipper entitled to access the 
NSA; the names, titles and addresses of the representatives signing the 
NSA for the parties, except that in the case of an NSA entered into by a 
shippers' association, individual members need not be named unless the 
contract includes or excludes specific members; and the date upon which 
the NSA was signed. Subsequent references in the NSA to the signatory 
parties shall be consistent with the first reference. An NVOCC party 
which enters into an NSA that includes affiliates must either:
    (i) list the affiliates' business addresses; or
    (ii) certify that this information will be provided to the 
Commission upon request within ten (10) business days of such request.
    (10) A description of the shipment records which will be maintained 
to support the NSA and the address, telephone number, and title of the 
person who will respond to a request by making shipment records 
available to the Commission for inspection under Sec. 531.12 of this 
part; and
    (11) All other provisions of the NSA.
    (c) Certainty of terms. The terms described in paragraph (b) of this 
section may not:
    (1) Be uncertain, vague or ambiguous; or
    (2) Make reference to terms not explicitly contained in the NSA 
itself unless those terms are readily available to the parties and the 
Commission. Reference may not be made to a tariff of a common carrier 
other than the NVOCC acting as carrier party to the NSA.
    (3) Pursuant to Sec. 531.12(b), the carrier party to the NSA must, 
upon written request by the Commission, provide the Commission with the 
associated records of the referenced terms. For the purpose of paragraph 
(c)(2) of this section, the referenced terms will be deemed readily 
available to the Commission if the carrier party to the NSA provides the 
Commission with the associated records of the terms within thirty (30) 
days of the Commission's written request.
    (d) Other requirements. (1) For service pursuant to an NSA, no NVOCC 
may, either alone or in conjunction with any other person, directly or 
indirectly, provide service in the liner trade that is not in accordance 
with the rates, charges, classifications, rules and practices contained 
in a filed NSA.
    (2) For service pursuant to an NSA, no NVOCC, may, either alone or 
in conjunction with any other person, directly or indirectly, engage in 
any unfair or unjustly discriminatory practice in the matter of rates or 
charges with respect to any port; and
    (3) For service under an NSA, no NVOCC may, either alone or in 
conjunction with any other person, directly or indirectly, give any 
undue or unreasonable preference or advantage or impose any undue or 
unreasonable prejudice or disadvantage with respect to any port.
    (4) No NVOCC may knowingly and willfully enter into an NSA with an 
ocean transportation intermediary that does not have a tariff and a 
bond, insurance, or other surety as required by sections 8 (46 U.S.C. 
40501-40503) and 19 (46 U.S.C. 40901-40904) of the Act.
    (e) Format requirements. Every NSA filed with BTA shall include, as 
set forth in Appendix A to this part:
    (1) A unique NSA number of more than one (1) but less than ten (10) 
alphanumeric characters in length (``NSA Number''); and
    (2) A consecutively numbered amendment number no more than three 
digits in length, with initial NSAs using ``0'' (``Amendment number''); 
and
    (3) An indication of the method by which the statement of essential 
terms will be published.
    (f) Exception in case of malfunction of Commission electronic filing 
system. (1) In the event that the Commission's electronic filing system 
is not functioning and cannot receive NSAs filings for twenty-four (24) 
continuous hours or more, affected parties will not be subject to the 
requirements of paragraph (a) of this section and Sec. 531.11 that an 
NSA be filed before cargo is shipped under it.

[[Page 199]]

    (2) However, NSAs which go into effect before they are filed due to 
a malfunction of the Commission's electronic filing system pursuant to 
paragraph (f)(1) of this section, must be filed within twenty-four (24) 
hours of the Commission's electronic filing system's return to service.
    (3) For an NSA that is effective without filing due to a malfunction 
of the Commission's filing system, failure to file that NSA within 
twenty-four (24) hours of the Commission's electronic filing system's 
return to service will be considered a violation of these regulations.
    (g) Failure to comply with the provisions of this section shall 
result in the application of the terms of the otherwise applicable 
tariff.

[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 56580, Sept. 28, 2005; 
74 FR 50724, Oct. 1, 2009; 77 FR 13510, Mar. 7, 2012]



Sec. 531.7  Notices.

    Within thirty (30) days of the occurrence of any event listed below, 
there shall be filed with the Commission, pursuant to the same 
procedures as those followed for the filing of an amendment pursuant to 
Sec. 531.5 and Appendix A to this part, a detailed notice of:
    (a) Correction;
    (b) Cancellation;
    (c) Adjustment of accounts, by re-rating, liquidated damages, or 
otherwise;
    (d) Final settlement of any account adjusted as described in 
paragraph (c) of this section; and
    (e) Any change to the name, legal name and/or business address of 
any NSA party.



Sec. 531.8  Amendment, correction, cancellation, and electronic 
transmission errors.

    (a) Amendment. (1) NSAs may be amended by mutual agreement of the 
parties. Amendments shall be filed electronically with the Commission in 
the manner set forth in Sec. 531.5 and Appendix A to this part.
    (i) Where feasible, NSAs should be amended by amending only the 
affected specific term(s) or subterms.
    (ii) Each time any part of an NSA is amended, the filer shall assign 
a consecutive amendment number (up to three digits), beginning with the 
number ``1.''
    (iii) Each time any part of a filed NSA is amended, the ``Filing 
Date'' will be the date of filing of the amendment.
    (2) [Reserved]
    (b) Correction. (1) Requests shall be filed, in duplicate, with the 
Commission's Office of the Secretary within forty-five (45) days of the 
NSA's filing with the Commission, accompanied by remittance of a $276 
service fee.
    (2) Requests shall include:
    (i) A letter of transmittal explaining the purpose of the 
submission, and providing specific information to identify the initial 
or amended NSA to be corrected;
    (ii) A paper copy of the proposed correct terms. Matter to be 
deleted shall be struck through and matter to be added shall immediately 
follow the language being deleted and underscored;
    (iii) An affidavit from the filing party attesting with specificity 
to the factual circumstances surrounding the clerical or administrative 
error, with reference to any supporting documentation;
    (iv) Documents supporting the clerical or administrative error; and
    (v) A brief statement from the other party to the NSA concurring in 
the request for correction.
    (3) If the request for correction is granted, the carrier party 
shall file the corrected provisions using a special case number as 
described in Appendix A to this part.
    (c) Electronic transmission errors. (1) An authorized person who 
experiences a purely technical electronic transmission error or a data 
conversion error in transmitting an NSA filing or an amendment thereto 
is permitted to file a Corrected Transmission (``CT'') of that filing 
within 48 hours of the date and time of receipt recorded in the 
Commission's electronic filing system (excluding Saturdays, Sundays and 
legal public holidays). This time-limited permission to correct an 
initial defective NSA filing is not to be used to make changes in the 
original NSA rates, terms or conditions that are otherwise provided for 
in Sec. 531.6(b). The CT

[[Page 200]]

tab box in the Commission's electronic filing system must be checked at 
the time of resubmitting a previously filed NSA, and a description of 
the corrections made must be stated at the beginning of the corrected 
NSA in a comment box. Failure to check the CT box and enter a 
description of the correction will result in the rejection of a file 
with the same name, as documents with duplicate file names or NSA and 
amendment numbers are not accepted by the FMC's electronic filing 
system.
    (2) [Reserved]
    (d) Cancellation. (1) An account may be adjusted for events and 
damages covered by the NSA. This shall include adjustment necessitated 
by either liability for liquidated damages appearing in the NSA as filed 
with the Commission under Sec. 531.6(b)(7), or the occurrence of an 
event described below in paragraph (d)(2) of this section.
    (2) In the event of cancellation as defined in Sec. 531.3(g):
    (i) Further or continued implementation of the NSA is prohibited; 
and
    (ii) The cargo previously carried under the NSA shall be re-rated 
according to the otherwise applicable tariff provisions.
    (e) If the amendment, correction or cancellation affects an 
essential term required to be published under Sec. 531.9, the statement 
of essential terms shall be changed as soon as possible after the filing 
of the amendment to accurately reflect the change to the NSA terms.



                Subpart C_Publication of Essential Terms



Sec. 531.9  Publication.

    (a) Contents. All authorized persons who choose to file NSAs under 
this part are also required to make available to the public, 
contemporaneously with the filing of each NSA with the Commission, and 
in tariff format, a concise statement of the following essential terms:
    (1) The port ranges:
    (i) origin; and
    (ii) destination;
    (2) The commodity or commodities involved;
    (3) The minimum volume or portion; and
    (4) The duration.
    (b) Certainty of terms. The terms described in paragraph (a) of this 
section may not:
    (1) Be uncertain, vague or ambiguous; or
    (2) Make reference to terms not explicitly detailed in the statement 
of essential terms, unless those terms are contained in a publication 
widely available to the public and well known within the industry. 
Reference may not be made to a tariff of a common carrier other than the 
NVOCC party to the NSA.
    (c) Location. The statement of essential terms shall be published as 
a separate part of the individual NVOCC's automated tariff system.
    (d) References. The statement of essential terms shall contain a 
reference to the ``NSA Number'' as described in Sec. 531.6(e)(1).
    (e) Terms. (1) The publication of the statement of essential terms 
shall accurately reflect the terms as filed with the Commission.
    (2) If any of the published essential terms include information not 
required to be filed with the Commission but filed voluntarily, the 
statement of essential terms shall so note.
    (f) Commission listing. The Commission will publish on its website, 
www.fmc.gov, a listing of the locations of all NSA essential terms 
publications.
    (g) Updating statements of essential terms. To ensure that the 
information contained in a published statement of essential terms is 
current and accurate, the statement of essential terms publication shall 
include a prominent notice indicating the date of its most recent 
publication or revision. When the published statement of essential terms 
is affected by filed amendments, corrections, or cancellations, the 
current terms shall be changed and published as soon as possible in the 
relevant statement of essential terms.



                 Subpart D_Exceptions and Implementation



Sec. 531.10  Excepted and exempted commodities.

    (a) Statutory exceptions. NSAs for the movement of the following, as 
defined in section 3 of the Act (46 U.S.C. 40102)

[[Page 201]]

and Sec. 530.3 or Sec. 520.2 of this chapter, are not subject to the 
conditions of this exemption:
    (1) Bulk cargo;
    (2) Forest products;
    (3) Recycled metal scrap;
    (4) New assembled motor vehicles; and
    (5) Waste paper or paper waste.
    (b) Commission exemptions. The following commodities and/or services 
are not subject to the conditions of this exemption:
    (1) Mail in foreign commerce. Transportation of mail between the 
United States and foreign countries.
    (2) Department of Defense cargo. Transportation of U.S. Department 
of Defense cargo moving in foreign commerce under terms and conditions 
approved by the Military Transportation Management Command and published 
in a universal service contract. An exact copy of the universal service 
contract, including any amendments thereto, shall be filed with the 
Commission as soon as it becomes available.
    (c) Inclusion of excepted or exempted matter. (1) The Commission 
will not accept for filing NSAs which exclusively concern the 
commodities or services listed in paragraph (a) or (b) of this section.
    (2) NSAs filed with the Commission may include the commodities or 
services listed in paragraph (a) or (b) of this section only if:
    (i) There is a tariff of general applicability for the 
transportation, which contains a specific commodity rate for the 
commodity or service in question; or
    (ii) The NSA itself sets forth a rate or charge which will be 
applied if the NSA is canceled, as defined in Sec. 531.3(e) and Sec. 
531.8(d).
    (d) Waiver. Upon filing an NSA pursuant to paragraph (c) of this 
section, the NSA shall be subject to the same requirements as those for 
NSAs generally.

[69 FR 75853, Dec. 20, 2004, as amended at 74 FR 50725, Oct. 1, 2009]



Sec. 531.11  Implementation.

    Generally. Performance under an NSA or amendment thereto may not 
begin before the day it is effective and filed with the Commission.



                    Subpart E_Recordkeeping and Audit



Sec. 531.12  Recordkeeping and audit.

    (a) Records retention for five years. Every NVOCC shall maintain 
original signed NSAs, amendments, and their associated records in an 
organized, readily accessible or retrievable manner for a period of five 
(5) years from the termination of each NSA. These records must be kept 
in a form that is readily available and usable to the Commission; 
electronically maintained records shall be no less accessible than if 
they were maintained in paper form.
    (b) Production for audit within 30 days of request. Every NVOCC 
shall, upon written request of the FMC's Director, Bureau of 
Enforcement, any Area Representative or the Director, Bureau of Trade 
Analysis, submit copies of requested original NSAs or their associated 
records within thirty (30) days of the date of the request.



Sec. 531.13-531.98  [Reserved]



Sec. 531.99  OMB control numbers assigned pursuant to the Paperwork
Reduction Act.

    The Commission has received OMB approval for this collection of 
information 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. The valid control number for this 
collection of information is 3072-0070. The valid control number for 
form FMC-78 is 3072-0070.

[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 31370, June 1, 2005]



    Sec. Appendix A to Part 531--Instructions for the Filing of NSAs

    NSAs shall be filed in accordance with the instructions found on the 
Commission's home page, http://www.fmc.gov.

                A. Registration, Log-on I.D. and Password

    To register for filing, an NVOCC or authorized agent must submit the 
NSA Registration Form (Form FMC-78) to BTA. A separate NSA Registration 
Form is required for each individual that will file NSAs. BTA will

[[Page 202]]

direct OIT to provide approved filers with a log-on identification 
number (``I.D.'') and password. Filers who would like a third party 
(agent/publisher) to file their NSAs must so indicate on Form FMC-78. 
Authority for filing can be transferred by submitting an amended 
registration form requesting the assignment of a new log-on I.D. and 
password. The original log-on ID will be canceled when a replacement 
log-on I.D. is issued. Log-on I.D.s and passwords may not be shared 
with, loaned to or used by any individual other than the individual 
registrant. The Commission reserves the right to disable any log-on I.D. 
that is shared with, loaned to or used by parties other than the 
registrant.

                                B. Filing

    After receiving a log-on I.D. and a password, a filer may log-on to 
the NSA filing area on the Commission's home page and file NSAs. The 
filing screen will request such information as: filer name, organization 
number (``Registered Persons Index'' or ``RPI'' number); NSA and 
amendment number; effective date and file name. The filer will attach 
the entire NSA file and submit it into the system. When the NSA has been 
submitted for filing, the system will assign a filing date and an FMC 
control number, both of which will be included in the acknowledgment/
confirmation message.
[GRAPHIC] [TIFF OMITTED] TR01OC09.006


[[Page 203]]


[GRAPHIC] [TIFF OMITTED] TR01OC09.007


[[Page 204]]


[GRAPHIC] [TIFF OMITTED] TR01JN05.637


[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 31370, June 1, 2005; 74 
FR 50725, Oct. 1, 2009]

[[Page 205]]



PART 532_NVOCC NEGOTIATED RATE ARRANGEMENTS--Table of Contents



                      Subpart A_General Provisions

532.1 Purpose.
532.2 Scope and applicability.
532.3 Definitions.

   Subpart B_Procedures Related to NVOCC Negotiated Rate Arrangements

532.4 Duties of the NVOCC rules tariff.
532.5 Requirements for NVOCC negotiated rate arrangements.
532.6 Notices.

                  Subpart C_Recordkeeping Requirements

532.7 Recordkeeping and audit.
532.91 OMB control number assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 46 U.S.C. 40103.

    Source: 76 FR 11360, Mar. 2, 2011, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 532.1  Purpose.

    The purpose of this part, pursuant to the Commission's statutory 
authority, is to exempt non-vessel-operating common carriers (NVOCCs) 
from the tariff rate publication and adherence requirements of the 
Shipping Act of 1984, as enumerated herein.

[78 FR 42888, July 18, 2013]



Sec. 532.2  Scope and applicability.

    This part exempts NVOCCs duly licensed pursuant to 46 CFR 515.3 or 
registered pursuant to 46 CFR 515.19, holding adequate proof of 
financial responsibility pursuant to 46 CFR 515.21, and meeting the 
requirements of 46 CFR 532.4 through 532.7, from the following 
requirements and prohibitions of the Shipping Act and the Commission's 
regulations:
    (a) The requirement in 46 U.S.C. 40501(a)-(c) that the NVOCC include 
its rates in a tariff open to public inspection in an automated tariff 
system;
    (b) 46 U.S.C. 40501(d);
    (c) 46 U.S.C. 40501(e)
    (d) 46 U.S.C. 40503;
    (e) the prohibition in 46 U.S.C. 41104(2)(A);
    (f) the Commission's corresponding regulation at 46 CFR 520.3(a) 
that the NVOCC include its rates in a tariff open for public inspection 
in an automated tariff system; and
    (g) the Commission's corresponding regulations at 46 CFR 
520.4(a)(4), 520.4(f), 520.6(e), 520.7(c), (d), 520.8(a), 520.12, and 
520.14. Any NVOCC failing to maintain its bond or license or 
registration as set forth above, or who has had its tariff suspended by 
the Commission, shall not be eligible to invoke this exemption.

[76 FR 11360, Mar. 2, 2011, as amended at 78 FR 42888, July 18, 2013]



Sec. 532.3  Definitions.

    When used in this part,
    (a) ``NVOCC Negotiated Rate Arrangement'' or ``NRA'' means a written 
and binding arrangement between an NRA shipper and an eligible NVOCC to 
provide specific transportation service for a stated cargo quantity, 
from origin to destination, on and after receipt of the cargo by the 
carrier or its agent (or the originating carrier in the case of through 
transportation).
    (b) ``Rate'' means a price stated for providing a specified level of 
transportation service for a stated cargo quantity, from origin to 
destination, on and after a stated date or within a defined time frame.
    (c) ``Rules tariff'' means a tariff or the portion of a tariff, as 
defined by 46 CFR 520.2, containing the terms and conditions governing 
the charges, classifications, rules, regulations and practices of an 
NVOCC, but does not include a rate.
    (d) ``NRA shipper'' means a cargo owner, the person for whose 
account the ocean transportation is provided, the person to whom 
delivery is to be made, a shippers' association, or an ocean 
transportation intermediary, as defined in section 3(17)(B) of the Act 
(46 U.S.C. 40102(16)), that accepts responsibility for payment of all 
applicable charges under the NRA.
    (e) ``Affiliate'' means two or more entities which are under common 
ownership or control by reason of being parent and subsidiary or 
entities associated with, under common control with or otherwise related 
to each other through common stock ownership or common directors or 
officers.

[[Page 206]]



   Subpart B_Procedures Related to NVOCC Negotiated Rate Arrangements



Sec. 532.4  NVOCC rules tariff.

    Before entering into NRAs under this Part, an NVOCC must provide 
electronic access to its rules tariffs to the public free of charge.



Sec. 532.5  Requirements for NVOCC negotiated rate arrangements.

    In order to qualify for the exemptions to the general rate 
publication requirement as set forth in section 532.2, an NRA must:
    (a) Be in writing;
    (b) Contain the names of the parties and the names of the 
representatives agreeing to the NRA;
    (c) Be agreed to by both NRA shipper and NVOCC, prior to receipt of 
cargo by the common carrier or its agent (including originating carriers 
in the case of through transportation);
    (d) Clearly specify the rate and the shipment or shipments to which 
such rate will apply; and
    (e) May not be modified after the time the initial shipment is 
received by the carrier or its agent (including originating carriers in 
the case of through transportation).

[76 FR 11360, Mar. 2, 2011; 76 FR 19707, Apr. 8, 2011, as amended at 77 
FR 33972, June 8, 2012]



Sec. 532.6  Notices.

    An NVOCC wishing to invoke an exemption pursuant to this part must 
indicate that intention to the Commission and the public by a prominent 
notice in its rules tariff.

[77 FR 33972, June 8, 2012]



                         Subpart C_Recordkeeping



Sec. 532.7  Recordkeeping and audit.

    (a) An NVOCC invoking an exemption pursuant to this part must 
maintain original NRAs in an organized, readily accessible or 
retrievable manner for 5 years from the completion date of performance 
of the NRA by an NVOCC, in a format easily produced to the Commission.
    (b) NRAs are subject to inspection and reproduction requests by the 
Commission. An NVOCC shall produce the requested NRAs promptly in 
response to a Commission request. All records produced must be in 
English or be accompanied by a certified English translation.
    (c) Failure to keep or timely produce original NRAs will disqualify 
an NVOCC from the operation of the exemption provided pursuant to this 
part, regardless of whether it has been invoked by notice as set forth 
above, and may result in a Commission finding of a violation of 46 
U.S.C. 41104(1), 41104(2)(A) or other acts prohibited by the Shipping 
Act.

[77 FR 33972, June 8, 2012, as amended at 78 FR 42889, July 18, 2013]



Sec. 532.91  OMB control number issued pursuant to the Paperwork 
Reduction Act.

    The Commission has received OMB approval for this collection of 
information 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. The valid control number for this 
collection of information is 3072-0071.



PART 535_OCEAN COMMON CARRIER AND MARINE TERMINAL OPERATOR AGREEMENTS 
SUBJECT TO THE SHIPPING ACT OF 1984--Table of Contents



                      Subpart A_General Provisions

Sec.
535.101 Authority.
535.102 Purpose.
535.103 Policies.
535.104 Definitions.

                             Subpart B_Scope

535.201 Subject agreements.
535.202 Non-subject agreements.

                          Subpart C_Exemptions

535.301 Exemption procedures.
535.302 Exemptions for certain modifications of effective agreements.
535.303 Husbanding agreements--exemption.
535.304 Agency agreements--exemption.
535.305 Equipment interchange agreements--exemption.
535.306 Nonexclusive transshipment agreements--exemption.

[[Page 207]]

535.307 Agreements between or among wholly-owned subsidiaries and/or 
          their parent--exemption.
535.309 Marine terminal services agreements--exemption.
535.310 Marine terminal facilities agreements--exemption.
535.311 Low market share agreements--exemption.
535.312 Vessel charter party--exemption.

                     Subpart D_Filing of Agreements

535.401 General requirements.
535.402 Complete and definite agreements.
535.403 Form of agreements.
535.404 Agreement provisions.
535.405 Organization of conference agreements.
535.406 Modification of agreements.
535.407 Application for waiver.
535.408 Activities that may be conducted without further filings.

                 Subpart E_Information Form Requirements

535.501 General requirements.
535.502 Agreements subject to the Information Form requirements.
535.503 Information Form.
535.504 Application for waiver.

                     Subpart F_Action on Agreements

535.601 Preliminary review--rejection of agreements.
535.602 Federal Register notice.
535.603 Comment.
535.604 Waiting period.
535.605 Requests for expedited review.
535.606 Requests for additional information.
535.607 Failure to comply with requests for additional information.
535.608 Confidentiality of submitted material.
535.609 Negotiations.

                    Subpart G_Reporting Requirements

535.701 General requirements.
535.702 Agreements subject to Monitoring Report and alternative periodic 
          reporting requirements.
535.703 Monitoring Report form.
535.704 Filing of minutes.
535.705 Application for waiver.

              Subpart H_Mandatory and Prohibited Provisions

535.801 Independent action.
535.802 Service contracts.
535.803 Ocean freight forwarder compensation.

                           Subpart I_Penalties

535.901 Failure to file.
535.902 Falsification of reports.

                      Subpart J_Paperwork Reduction

535.991 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

Appendix A to Part 535--Information Form and Instructions
Appendix B to Part 535--Monitoring Report and Instructions

    Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40101-40104, 40301-40307, 
40501-40503, 40901-40904, 41101-41109, 41301-41302, and 41305-41307.

    Source: 69 FR 64414, Nov. 4, 2004, unless otherwise noted.



                      Subpart A_General Provisions



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'') (46 U.S.C. 305, 40101-40104, 40301-40307, 40501-
40503, 40901-40904, 41101-41109, 41301-41302, and 41305-41307), and the 
Ocean Shipping Reform Act of 1998, Pub. L. 105-258, 112 Stat. 1902.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50727, Oct. 1, 2009]



Sec. 535.102  Purpose.

    This part implements those provisions of the Act that govern 
agreements by or among ocean common carriers and agreements among marine 
terminal operators and among one or more marine terminal operators and 
one or more ocean common carriers. This part also sets forth more 
specifically certain procedures provided for in the Act.



Sec. 535.103  Policies.

    (a) The Act requires that agreements be processed and reviewed, upon 
their initial filing, according to strict statutory deadlines. This part 
is intended to establish procedures for the orderly and expeditious 
review of filed agreements in accordance with the statutory 
requirements.
    (b) The Act requires that agreements be reviewed, upon their initial 
filing, to ensure compliance with all applicable provisions of the Act 
and empowers the Commission to obtain information

[[Page 208]]

to conduct that review. This part identifies those types of agreements 
that must be accompanied by information submissions when they are first 
filed, and sets forth the kind of information for certain agreements 
that the Commission believes relevant to that review. Only information 
that is relevant to such a review is requested. It is the policy of the 
Commission to keep the costs of regulation to a minimum and at the same 
time obtain information needed to fulfill its statutory responsibility.
    (c) To further the goal of expedited processing and review of 
agreements upon their initial filing, agreements are required to meet 
certain minimum requirements as to form. These requirements are intended 
to ensure expedited review and should assist parties in preparing 
agreements. These requirements as to form do not affect the substance of 
an agreement and are intended to allow parties the freedom to develop 
innovative commercial relationships and provide efficient and economic 
transportation systems.
    (d) The Act itself excludes certain agreements from the filing 
requirements and authorizes the Commission to exempt other classes of 
agreements from any requirement of the Act or this part. To minimize 
delay in the implementation of routine agreements and to avoid the 
private and public cost of unnecessary regulation, certain classes of 
agreements are exempt from the filing requirements of this part.
    (e) Under the regulatory framework established by the Act, the role 
of the Commission as a monitoring agency has been enhanced. The Act 
favors greater freedom in allowing parties to form their commercial 
arrangements. This, however, requires greater monitoring of agreements 
after they have become effective to assure their continued compliance 
with all applicable provisions of the Act. The Act empowers the 
Commission to impose certain recordkeeping and reporting requirements. 
This part identifies those agreements that require specific record 
retention and reporting to the Commission and prescribes the applicable 
period of record retention, the form and content of such reporting, and 
the applicable time periods for filing with the Commission. Only 
information that is necessary to assure that the Commission's monitoring 
responsibilities will be fulfilled is requested.
    (f) The Act requires that conference agreements contain certain 
mandatory provisions. Each conference agreement must:
    (1) State its purpose;
    (2) Provide reasonable and equal terms and conditions for admission 
and readmission to membership;
    (3) Allow for withdrawal from membership upon reasonable notice 
without penalty;
    (4) Require an independent neutral body to police the conference, if 
requested by a member;
    (5) Prohibit conduct specified in sections 10(c)(1) or 10(c)(3) of 
the Act (46 U.S.C. 41105(1) or 41105(3));
    (6) Provide for a consultation process;
    (7) Establish procedures for considering shippers' requests and 
complaints; and
    (8) Provide for independent action.
    (g) 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.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50727, Oct. 1, 2009]



Sec. 535.104  Definitions.

    When used in this part:
    (a) Agreement means an understanding, arrangement, or association, 
written or oral (including any modification, cancellation or appendix) 
entered into by or among ocean common carriers and/or marine terminal 
operators, but does not include a maritime labor agreement.

[[Page 209]]

    (b) Antitrust laws means the Act of July 2, 1890 (ch. 647, 26 Stat. 
209), 15 U.S.C. 1, as amended; the Act of October 15, 1914 (ch. 323, 38 
Stat. 730), 15 U.S.C. 12, as amended; the Federal Trade Commission Act 
(38 Stat. 717), 15 U.S.C. 41, as amended; sections 73 and 74 of the Act 
of August 27, 1894 (28 Stat. 570), 15 U.S.C. 8, 9, as amended; the Act 
of June 19, 1936 (ch. 592, 49 Stat. 1526), 15 U.S.C. 13, as amended; the 
Antitrust Civil Process Act (76 Stat. 548), 15 U.S.C. 1311, note as 
amended; and amendments and Acts supplementary thereto.
    (c) Appendix means a document containing additional material of 
limited application and appended to an agreement, distinctly 
differentiated from the main body of the basic agreement.
    (d) Assessment agreement means an agreement, whether part of a 
collective bargaining agreement or negotiated separately, that provides 
for collectively bargained fringe benefit obligations on other than a 
uniform man-hour basis regardless of the cargo handled or type of vessel 
or equipment utilized.
    (e) Capacity rationalization means a concerted reduction, 
stabilization, withholding, or other limitation in any manner whatsoever 
by ocean common carriers on the size or number of vessels or available 
space offered collectively or individually to shippers in any trade or 
service.
    (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 that 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.
    (h) Consultation means a process whereby a conference and a shipper 
confer for the purpose of promoting the commercial resolution of 
disputes and/or the prevention and elimination of the occurrence of 
malpractices.
    (i) Cooperative working agreement means an agreement that 
establishes exclusive, preferential, or cooperative working 
relationships that are subject to the Act, but that do not fall 
precisely within the parameters of any specifically defined agreement.
    (j) Effective agreement means an agreement effective under the Act.
    (k) Equal access agreement means an agreement between ocean common 
carriers of different nationalities, as determined by the incorporation 
or domicile of the carriers' operating companies, whereby such ocean 
common carriers associate for the purpose of gaining reciprocal access 
to cargo that is otherwise reserved by national decree, legislation, 
statute or regulation to carriage by the merchant marine of the 
carriers' respective nations.
    (l) Independent neutral body means a disinterested third party, 
authorized by a conference and its members to review, examine, and 
investigate alleged breaches or violations of the conference agreement 
and/or the conference's properly promulgated tariffs, rules, or 
regulations by any member of the conference.
    (m) Information Form means the form containing economic information 
that must accompany the filing of certain agreements and modifications.

[[Page 210]]

    (n) Interconference agreement means an agreement between 
conferences.
    (o)(1) Joint service agreement means an agreement between ocean 
common carriers operating as a joint venture whereby a separate service 
is established that:
    (i) Holds itself out in its own distinct operating name;
    (ii) Independently fixes its own rates, charges, practices, and 
conditions of service or chooses to participate under its operating name 
in another agreement that is duly authorized to determine and implement 
such activities;
    (iii) Independently publishes its own tariff or chooses to 
participate under its operating name in an otherwise established tariff;
    (iv) Issues its own bills of lading; and
    (v) Acts generally as a single carrier.
    (2) The common use of facilities in a joint service may occur, and 
there is no competition between members for cargo in the agreement 
trade; but they otherwise maintain their separate identities.
    (p) Marine terminal facilities means one or more structures (and 
services connected therewith) comprising a terminal unit, including, but 
not limited to docks, berths, piers, aprons, wharves, warehouses, 
covered and/or open storage space, cold storage plants, grain elevators 
and/or bulk cargo loading and/or unloading structures, landings, and 
receiving stations, used for the transmission, care and convenience of 
cargo and/or passengers or the interchange of same between land and 
ocean common carriers or between two ocean common carriers. This term is 
not limited to waterfront or port facilities and includes so-called off-
dock container freight stations at inland locations and any other 
facility from which inbound waterborne cargo may be tendered to the 
consignee or outbound cargo may be received from shippers for vessel or 
container loading.
    (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.
    (r) Maritime labor agreement means a collective-bargaining agreement 
between an employer subject to the Act or group of such employers, and a 
labor organization representing employees in the maritime or stevedoring 
industry, or an agreement preparatory to such a collective-bargaining 
agreement among members of a multi-employer bargaining group, or an 
agreement specifically implementing provisions of such a collective-
bargaining agreement or providing for the formation, financing or 
administration of a multi-employer bargaining group; but the term does 
not include an assessment agreement.
    (s) Modification means any change, alteration, correction, addition, 
deletion, or revision of an existing effective agreement or to any 
appendix to such an agreement.
    (t) Monitoring Report means the report containing economic 
information that must be filed at defined intervals with regard to 
certain agreements that are effective under the Act.
    (u) Ocean common carrier means a common carrier that operates, for 
all or part of its common carrier service, a vessel 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.
    (v) Ocean freight forwarder means a person in the United States that 
dispatches shipments from the United States via common carriers and 
books or otherwise arranges space for those shipments on behalf of 
shippers; and processes the documentation or performs related activities 
incident to those shipments.
    (w) Person means individuals, corporations, partnerships and 
associations existing under or authorized by the laws of the United 
States or of a foreign country.
    (x) Pooling agreement means an agreement between ocean common 
carriers that provides for the division of cargo

[[Page 211]]

carryings, earnings, or revenue and/or losses between the members in 
accordance with an established formula or scheme.
    (y) Port means the place at which an ocean common carrier originates 
or terminates (and/or transships) its actual ocean carriage of cargo or 
passengers as to any particular transportation movement.
    (z) Rate, for purposes of this part, includes both the basic price 
paid by a shipper to an ocean common carrier for a specified level of 
transportation service for a stated quantity of a particular commodity, 
from origin to destination, on or after a stated effective date or 
within a defined time frame, and also any accessorial charges or 
allowances that increase or decrease the total transportation cost to 
the shipper.
    (aa) Rate agreement means an agreement between ocean common carriers 
that authorizes the discussion of or agreement on, either on a binding 
basis under a common tariff or on a non-binding basis, any kind of rate 
or charge.
    (bb) Sailing agreement means an agreement between ocean common 
carriers to provide service by establishing a schedule of ports that 
each carrier will serve, the frequency of each carrier's calls at those 
ports, and/or the size and capacity of the vessels to be deployed by the 
parties. The term does not include joint service agreements, or capacity 
rationalization agreements.
    (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 makes 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.
    (ee) Shippers' association means a group of shippers that 
consolidates or distributes freight on a nonprofit basis for the members 
of the group in order to secure carload, truckload, or other volume 
rates or service contracts.
    (ff) Shippers' requests and complaints means a communication from a 
shipper to a conference requesting a change in tariff rates, rules, 
regulations, or service; protesting or objecting to existing rates, 
rules, regulations or service; objecting to rate increases or other 
tariff changes; protesting allegedly erroneous service contract or 
tariff implementation or application, and/or requesting to enter into a 
service contract. Routine information requests are not included in the 
term.
    (gg) Space charter agreement means an agreement between ocean common 
carriers whereby a carrier (or carriers) agrees to provide vessel space 
for use by another carrier (or carriers) in exchange for compensation or 
services. The arrangement may include arrangements for equipment 
interchange and receipt/delivery of cargo, but may not include capacity 
rationalization as defined in this subpart.
    (hh) Sub-trade means the scope of ocean liner cargo carried between 
each U.S. port range and each foreign country within the scope of the 
agreement. U.S. port ranges are defined as follows:
    (1) Atlantic and Gulf shall encompass ports along the eastern 
seaboard and the Gulf of Mexico from the northern boundary of Maine to 
Brownsville, Texas. It also includes all ports bordering on the Great 
Lakes and their connecting waterways, all ports in the State of New York 
on the St. Lawrence River, and all ports in Puerto Rico and the U.S. 
Virgin Islands; and

[[Page 212]]

    (2) Pacific shall encompass all ports in the States of Alaska, 
Hawaii, California, Oregon, and Washington. It also includes all ports 
in Guam, American Samoa, Northern Marianas, Johnston Island, Midway 
Island, and Wake Island.
    (ii) Through transportation means continuous transportation between 
origin and destination for which a through rate is assessed and which is 
offered or performed by one or more carriers, at least one of which is 
an ocean common carrier, between a United States point or port and a 
foreign point or port.
    (jj) Transshipment agreement means an agreement between an ocean 
common carrier serving a port or point of origin and another such 
carrier serving a port or point of destination, whereby cargo is 
transferred from one carrier to another carrier at an intermediate port 
served by direct vessel call of both such carriers in the conduct of 
through transportation and the publishing carrier performs the 
transportation on one leg of the through transportation on its own 
vessel or on a vessel on which it has rights to space under a filed and 
effective agreement. Such an agreement does not provide for the 
concerted discussion, publication or otherwise fixing of rates for the 
account of the cargo interests, conditions of service or other tariff 
matters other than the tariff description of the transshipment service 
offered, the port of transshipment and the participation of the 
nonpublishing carrier. An agreement that involves the movement of cargo 
in a domestic offshore trade as part of a through movement of cargo via 
transshipment involving the foreign commerce of the United States shall 
be considered to be in the foreign commerce of the United States and, 
therefore, subject to the Act and this part.
    (kk) Vessel-operating costs means any of the following expenses 
incurred by an ocean common carrier: salaries and wages of officers and 
unlicensed crew, including relief crews and others regularly employed 
aboard the vessel; fringe benefits; expenses associated with consumable 
stores, supplies and equipment; vessel fuel and incidental costs; vessel 
maintenance and repair expense; hull and machinery insurance costs; 
protection and indemnity insurance costs; costs for other marine risk 
insurance not properly chargeable to hull and machinery insurance or to 
protection and indemnity insurance accounts; and charter hire expenses.



                             Subpart B_Scope



Sec. 535.201  Subject agreements.

    (a) Ocean common carrier agreements. This part 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.
    (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.



Sec. 535.202  Non-subject agreements.

    This part does not apply to the following agreements:
    (a) Any acquisition by any person, directly or indirectly, of any 
voting security or assets of any other person;
    (b) Any maritime labor agreement;
    (c) Any agreement related to transportation to be performed within 
or between foreign countries;

[[Page 213]]

    (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 that exclusively 
and solely involves transportation in the interstate commerce of the 
United States.



                          Subpart C_Exemptions



Sec. 535.301  Exemption procedures.

    (a) Authority. The Commission, upon application or its own motion, 
may by order or rule exempt for the future any class of agreement 
involving ocean common carriers and/or marine terminal operators 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.
    (b) Optional filing. Notwithstanding any exemption from filing, or 
other requirements of the Act and this part, any party to an exempt 
agreement may file such an agreement with the Commission.
    (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.
    (d) Retention of agreement by parties. Any agreement that has been 
exempted by the Commission pursuant to section 16 of the Act (46 U.S.C. 
40103) shall be retained by the parties and shall be available upon 
request by the Bureau of Trade Analysis for inspection during the term 
of the agreement and for a period of three years after its termination.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50727, Oct. 1, 2009]



Sec. 535.302  Exemptions for certain modifications of effective 
agreements.

    (a) Non-substantive modifications to effective agreements. A non-
substantive modification to an effective agreement between ocean common 
carriers and/or marine terminal operators, acting individually or 
through approved agreements, is one which:
    (1) Reflects changes in the name of any geographic locality stated 
therein, the name of the agreement or the name of a party to the 
agreement, the names and/or numbers of any other section 4 agreement (46 
U.S.C. 40301(a)-(c)) or designated provisions thereof referred to in an 
agreement;
    (2) Corrects typographical and grammatical errors in the text of the 
agreement or renumbers or reletters articles or sub-articles of 
agreements and references thereto in the text; or
    (3) Reflects changes in the titles of persons or committees 
designated therein or transfers the functions of such persons or 
committees to other designated persons or committees or which merely 
establishes a committee.
    (b) Other Miscellaneous Modifications to effective agreements. A 
miscellaneous modification to an effective agreement is one that:
    (1) Cancels the agreement or a portion thereof;
    (2) Deletes an agreement party;
    (3) Changes the parties to a conference agreement or a discussion 
agreement among passenger vessel operating common carriers that is open 
to all ocean common carriers operating passenger vessels of a class 
defined in the agreements and that does not contain ratemaking, pooling, 
joint service, sailing or space chartering authority; or
    (4) Changes the officials of the agreement and delegations of 
authority.
    (c) A copy of a modification described in (a) or (b) of this section 
shall be submitted to the Commission but is otherwise exempt from the 
waiting period requirement of the Act and this part.
    (d) Parties to agreements may seek a determination from the Director 
of the Bureau of Trade Analysis as to whether a particular modification 
is a non-substantive or other miscellaneous modification within the 
meaning of this section.
    (e) The filing fee for non-substantive or other miscellaneous 
modifications is provided in Sec. 535.401(g).

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50727, Oct. 1, 2009]



Sec. 535.303  Husbanding agreements--exemption.

    (a) A husbanding agreement is an agreement between an ocean common

[[Page 214]]

carrier and another ocean common carrier or marine terminal operator, 
acting as the former's agent, under which the agent handles routine 
vessel operating activities in port, such as notifying port officials of 
vessel arrivals and departures; ordering pilots, tugs, and linehandlers; 
delivering mail; transmitting reports and requests from the Master to 
the owner/operator; dealing with passenger and crew matters; and 
providing similar services related to the above activities. The term 
does not include an agreement that provides for the solicitation or 
booking of cargoes, signing contracts or bills of lading and other 
related matters, nor does it include an agreement that prohibits the 
agent from entering into similar agreements with other carriers.
    (b) A husbanding agreement is exempt from the filing requirements of 
the Act and of this part.
    (c) The filing fee for optional filing of husbanding agreements is 
provided in Sec. 535.401(g).



Sec. 535.304  Agency agreements--exemption.

    (a) An agency agreement is an agreement between an ocean common 
carrier and another ocean common carrier or marine terminal operator, 
acting as the former's agent, under which the agent solicits and books 
cargoes and signs contracts of affreightment and bills of lading on 
behalf of the ocean common carrier. Such an agreement may or may not 
also include husbanding service functions and other functions incidental 
to the performance of duties by agents, including processing of claims, 
maintenance of a container equipment inventory control system, 
collection and remittance of freight and reporting functions.
    (b) An agency agreement as defined above is exempt from the filing 
requirements of the Act and of this part, except those:
    (1) Where a common carrier is to be the agent for a competing ocean 
common carrier in the same trade; or
    (2) That permit an agent to enter into similar agreements with more 
than one ocean common carrier in a trade.
    (c) The filing fee for optional filing of agency agreements is 
provided in Sec. 535.401(g).



Sec. 535.305  Equipment interchange agreements--exemption.

    (a) An equipment interchange agreement is an agreement between two 
or more ocean common carriers for:
    (1) The exchange of empty containers, chassis, empty LASH/SEABEE 
barges, and related equipment; and
    (2) The transportation of the equipment as required, payment 
therefor, management of the logistics of transferring, handling and 
positioning equipment, its use by the receiving carrier, its repair and 
maintenance, damages thereto, and liability incidental to the 
interchange of equipment.
    (b) An equipment interchange agreement is exempt from the filing 
requirements of the Act and of this part.
    (c) The filing fee for optional filing of equipment interchange 
agreements is provided in Sec. 535.401(g).



Sec. 535.306  Nonexclusive transshipment agreements--exemption.

    (a) A nonexclusive transshipment agreement is a transshipment 
agreement by which one ocean common carrier serving a port of origin by 
direct vessel call and another such carrier serving a port of 
destination by direct vessel call provide transportation between such 
ports via an intermediate port served by direct vessel call of both such 
carriers and at which cargo will be transferred from one to the other 
and which agreement does not:
    (1) Prohibit either carrier from entering into similar agreements 
with other carriers;
    (2) Guarantee any particular volume of traffic or available 
capacity; or
    (3) Provide for the discussion or fixing of rates for the account of 
the cargo interests, conditions of service or other tariff matters other 
than the tariff description of the service offered as being by means of 
transshipment, the port of transshipment and the participation of the 
nonpublishing carrier.
    (b) A nonexclusive transshipment agreement is exempt from the filing 
requirements of the Act and of this part, provided that the tariff 
provisions set forth in paragraph (c) of this section

[[Page 215]]

and the content requirements of paragraph (d) of this section are met.
    (c) The applicable tariff or tariffs shall provide:
    (1) The through rate;
    (2) The routings (origin, transshipment and destination ports); 
additional charges, if any (i.e. port arbitrary and/or additional 
transshipment charges); and participating carriers; and
    (3) A tariff provision substantially as follows:
    The rules, regulations, and rates in this tariff apply to all 
transshipment arrangements between the publishing carrier or carriers 
and the participating, connecting or feeder carrier. Every participating 
connecting or feeder carrier which is a party to transshipment 
arrangements has agreed to observe the rules, regulations, rates, and 
routings established herein as evidenced by a connecting carrier 
agreement between the parties.
    (d) Nonexclusive transshipment agreements must contain the entire 
arrangement between the parties, must contain a declaration of the 
nonexclusive character of the arrangement and may provide for:
    (1) The identification of the parties and the specification of their 
respective roles in the arrangement;
    (2) A specification of the governed cargo;
    (3) The specification of responsibility for the issuance of bills of 
lading (and the assumption of common carriage-associated liabilities) to 
the cargo interests;
    (4) The specification of the origin, transshipment and destination 
ports;
    (5) The specification of the governing tariff(s) and provision for 
their succession;
    (6) The specification of the particulars of the nonpublishing 
carrier's concurrence/participation in the tariff of the publishing 
carrier;
    (7) The division of revenues earned as a consequence of the 
described carriage;
    (8) The division of expenses incurred as a consequence of the 
described carriage;
    (9) Termination and/or duration of the agreement;
    (10) Intercarrier indemnification or provision for intercarrier 
liabilities consequential to the contemplated carriage and such 
documentation as may be necessary to evidence the involved obligations;
    (11) The care, handling and liabilities for the interchange of such 
carrier equipment as may be consequential to the involved carriage;
    (12) Such rationalization of services as may be necessary to ensure 
the cost effective performance of the contemplated carriage; and
    (13) Such agency relationships as may be necessary to provide for 
the pickup and/or delivery of the cargo.
    (e) No subject other than as listed in paragraph (d) of this section 
may be included in exempted nonexclusive transshipment agreements.
    (f) The filing fee for optional filing of nonexclusive transshipment 
agreements is provided in Sec. 535.401(g).



Sec. 535.307  Agreements between or among wholly-owned subsidiaries
and/or their parent--exemption.

    (a) An agreement between or among wholly-owned subsidiaries and/or 
their parent means an agreement under section 4 of the Act (46 U.S.C. 
40301(a)-(c)) between or among an ocean common carrier or marine 
terminal operator subject to the Act and any one or more ocean common 
carriers or marine terminal operators which are ultimately owned 100 
percent by that ocean common carrier or marine terminal operator, or an 
agreement between or among such wholly-owned carriers or terminal 
operators.
    (b) All agreements between or among wholly-owned subsidiaries and/or 
their parent are exempt from the filing requirements of the Act and this 
part.
    (c) Ocean common carriers are exempt from section 10(c) of the Act 
(46 U.S.C. 41105) to the extent that the concerted activities proscribed 
by that section result solely from agreements between or among wholly-
owned subsidiaries and/or their parent.
    (d) The filing fee for optional filing of these agreements is 
provided in Sec. 535.401(g).

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50728, Oct. 1, 2009]

[[Page 216]]



Sec. 535.309  Marine terminal services agreements--exemption.

    (a) Marine terminal services agreement means an agreement, contract, 
understanding, arrangement, or association, written or oral, (including 
any modification or appendix) between a marine terminal operator and an 
ocean common carrier that applies to marine terminal services that are 
provided to and paid for by an ocean common carrier. These services 
include: checking, dockage, free time, handling, heavy lift, loading and 
unloading, terminal storage, usage, wharfage, and wharf demurrage and 
including any marine terminal facilities that may be provided 
incidentally to such marine terminal services. The term marine terminal 
services agreement does not include any agreement that 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.
    (b) All marine terminal services agreements as defined in Sec. 
535.309(a) are exempt from the filing and waiting period requirements of 
the Act and this part on condition that:
    (1) They do not include rates, charges, rules, and regulations that 
are determined through a marine terminal conference agreement. 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 that 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; and
    (2) No antitrust immunity is conferred under the Act with regard to 
terminal services provided to an ocean common carrier under a marine 
terminal services agreement that is not filed with the Commission.
    (c) The filing fee for optional filing of terminal services 
agreements is provided in Sec. 535.401(g).

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 65036, Dec. 9, 2009]



Sec. 535.310  Marine terminal facilities agreement--exemption.

    (a) Marine terminal facilities agreement means any agreement between 
or among two or more marine terminal operators, or between one or more 
marine terminal operators and one or more ocean common carriers, to the 
extent that the agreement involves ocean transportation in the foreign 
commerce of the United States, that conveys to any of the involved 
parties any rights to operate any marine terminal facility by means of 
lease, license, permit, assignment, land rental, or other similar 
arrangement for the use of marine terminal facilities or property.
    (b) All marine terminal facilities agreements as defined in Sec. 
535.310(a) are exempt from the filing and waiting period requirements of 
the Act and this part.
    (c) Parties to marine terminal facilities agreements currently in 
effect shall provide copies to any requesting party for a reasonable 
copying and mailing fee.
    (d) The filing fee for optional filing of terminal facilities 
agreements is provided in Sec. 535.401(g).



Sec. 535.311  Low market share agreements--exemption.

    (a) Low market share agreement means any agreement among ocean 
common carriers which contains none of the authorities listed in Sec. 
535.502(b) and for which the combined market share, based on cargo 
volume, of the parties in any of the agreement's sub-trades is either:
    (1) Less than 30 percent, if all parties are members of another 
agreement in the same trade or sub-trade containing any of the 
authorities listed in Sec. 535.502(b); or
    (2) Less than 35 percent, if at least one party is not a member of 
another agreement in the same trade or sub-trade containing any of the 
authorities listed in Sec. 535.502(b).
    (b) Low market share agreements are exempt from the waiting period 
requirement of the Act and this part, and are effective on filing.
    (c) Parties to agreements may seek a determination from the 
Director, Bureau of Trade Analysis, as to whether a

[[Page 217]]

proposed agreement meets the general definition of a low market share 
agreement.
    (d) The filing fee for low market share agreements is provided in 
Sec. 535.401(g).

[69 FR 64414, Nov. 4, 2004, as amended at 70 FR 20303, Apr. 19, 2005]



Sec. 535.312  Vessel charter party-exemption.

    (a) For purposes of this section, vessel charter party shall mean a 
contractual agreement between two ocean common carriers for the charter 
of the full reach of a vessel, which agreement sets forth the entire 
terms and conditions (including duration, charter hire, and geographical 
or operational limitations, if any) under which the vessel will be 
employed.
    (b) Vessel charter parties, as defined in paragraph (a) of this 
section, are exempt from the filing requirements of the Act and this 
part.
    (c) The filing fee for optional filing of vessel charter parties is 
provided in Sec. 535.401(g).



                     Subpart D_Filing of Agreements



Sec. 535.401  General requirements.

    (a) All agreements (including oral agreements reduced to writing in 
accordance with the Act) subject to this part and filed with the 
Commission for review and disposition pursuant to section 6 of the 
Act(46 U.S.C. 40304, 40306, 41307(b)-(d)), shall be submitted during 
regular business hours to the Secretary, Federal Maritime Commission, 
Washington, DC 20573. Such filing shall consist of:
    (1) A true copy and seven additional copies of the executed 
agreement;
    (2) Where required by this part, an original and five copies of the 
completed Information Form referenced at subpart E of this part; and
    (3) A letter of transmittal as described in paragraph (b) of this 
section.
    (b) The letter of transmittal shall:
    (1) Identify all of the documents being transmitted including, in 
the instance of a modification to an effective agreement, the full name 
of the effective agreement, the Commission-assigned agreement number of 
the effective agreement and the revision, page and/or appendix number of 
the modification being filed;
    (2) Provide a concise, succinct summary of the filed agreement or 
modification separate and apart from any narrative intended to provide 
support for the acceptability of the agreement or modification;
    (3) Clearly provide the typewritten or otherwise imprinted name, 
position, business address, and telephone number of the filing party; 
and
    (4) Be signed in the original by the filing party or on the filing 
party's behalf by an authorized employee or agent of the filing party.
    (c) To facilitate the timely and accurate publication of the Federal 
Register Notice, the letter of transmittal shall also provide a current 
list of the agreement's participants where such information is not 
provided elsewhere in the transmitted documents.
    (d) Any agreement that does not meet the filing requirements of this 
section, including any applicable Information Form requirements, shall 
be rejected in accordance with Sec. 535.601(b).
    (e) Assessment agreements shall be filed and shall be effective upon 
filing.
    (f) Parties to agreements with expiration dates shall file any 
modification seeking renewal for a specific term or elimination of a 
termination date in sufficient time to accommodate the 45-day waiting 
period required under the Act.
    (g) Fees. The filing fee is $1,780 for new agreements requiring 
Commission review and action; $851 for agreement modifications requiring 
Commission review and action; $397 for agreements processed under 
delegated authority (for types of agreements that can be processed under 
delegated authority, see Sec. 501.27(e) of this chapter); $138 for 
carrier exempt agreements; and $75 for terminal exempt agreements.
    (h) The fee for the Commission's agreement database report is $6.

[69 FR 64414, Nov. 4, 2004, as amended at 70 FR 10330, Mar. 3, 2005; 74 
FR 50728, Oct. 1, 2009; 75 FR 29455, May 26, 2010]



Sec. 535.402  Complete and definite agreements.

    An agreement filed under the Act must be clear and definite in its 
terms,

[[Page 218]]

must embody the complete, present understanding of the parties, and must 
set forth the specific authorities and conditions under which the 
parties to the agreement will conduct their operations and regulate the 
relationships among the agreement members, unless those details are 
matters specifically enumerated as exempt from the filing requirements 
of this part.



Sec. 535.403  Form of agreements.

    The requirements of this section apply to all agreements except 
marine terminal agreements and assessment 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 a Title Page indicating:
    (1) The full name of the agreement;
    (2) Once assigned, the Commission-assigned agreement number;
    (3) If applicable, the expiration date of the agreement; and
    (4) The original effective date of the agreement whenever the Title 
Page is revised.
    (c) Each agreement page (including modifications and appendices) 
shall be identified by printing the agreement name (as shown on the 
agreement title page) and, once assigned, the applicable Commission-
assigned agreement number at the top of each page. For agreement 
modifications, the appropriate amendment number for each modification 
should also appear on the page along with the basic agreement number.
    (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 a Table of Contents indicating the 
location of all agreement provisions.



Sec. 535.404  Agreement provisions.

    Generally, each agreement should:
    (a) 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 (not the address of any agent or representative not 
an employee of the participating party);
    (b) State the ports or port ranges to which the agreement applies as 
well as any inland points or areas to which it also applies; and
    (c) Specify, by organizational title, the administrative and 
executive officials determined by the agreement parties to be 
responsible for designated affairs of the agreement and the respective 
duties and authorities delegated to those officials. At a minimum, the 
agreement should specify:
    (1) The official(s) with authority to file the agreement and any 
modification thereto and to submit associated supporting materials; and
    (2) A statement as to any designated U.S. representative of the 
agreement required by this chapter.



Sec. 535.405  Organization of conference agreements.

    Each conference agreement shall:
    (a) 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. The agreement must 
include a description of any such neutral body authority and procedures 
related thereto.
    (b) State affirmatively that the conference parties shall not engage 
in conduct prohibited by sections 10(c)(1) or 10(c)(3) of the Act (46 
U.S.C. 41105(1) or 41105(3)).
    (c) Specify the procedures for consultation with shippers and for 
handling shippers' requests and complaints.
    (d) Include provisions for independent action in accordance with 
Sec. 535.801 of this part.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50728, Oct. 1, 2009]



Sec. 535.406  Modification of agreements.

    The requirements of this section apply to all agreements except 
marine terminal agreements and assessment agreements.

[[Page 219]]

    (a) Agreement modifications shall be filed in accordance with the 
provisions of Sec. Sec. 535.401, 535.402, and 535.403.
    (b) Agreement modifications shall be made by reprinting the entire 
page on which the matter being changed is published (``revised page''). 
The revised page 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 original pages inserted between 
existing effective pages shall be numbered with an alpha suffix (e.g., a 
page inserted between page 7 and page 8 shall be numbered 7a).
    (c) Each revised page shall be accompanied by a duplicate page, 
submitted for illustrative purposes only, indicating the language being 
modified in the following manner:
    (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 that shall indicate the new location of the provisions.



Sec. 535.407  Application for waiver.

    (a) Upon a showing of good cause, the Commission may waive the 
requirements of Sec. Sec. 535.401, 535.403, 535.404, 535.405, and 
535.406.
    (b) Requests for such a waiver shall be submitted in advance of the 
filing of the agreement to which the requested waiver would apply and 
shall state:
    (1) The specific provisions from which relief is sought;
    (2) The special circumstances requiring the requested relief; and
    (3) Why granting the requested waiver will not substantially impair 
effective review of the agreement.



Sec. 535.408  Activities that may be conducted without further filings.

    (a) Agreements that arise from authority of an effective agreement 
but whose terms are not fully set forth in the effective agreement to 
the extent required by Sec. 535.402 are permitted without further 
filing only if they:
    (1) Are themselves exempt from the filing requirements of this part 
(pursuant to subpart C--Exemptions of this part); or
    (2) Are listed in paragraph (b) of this section.
    (b) Unless otherwise exempt in subpart C of this part, only the 
following technical or operational matters of an agreement's affairs 
established pursuant to express enabling authority in an agreement are 
considered part of the effective agreement and do not require further 
filing under section 5 of the Act (46 U.S.C. 40301(d)-(e), 40302-40303, 
40305):
    (1) Establishment of tariff rates, rules and regulations and their 
joint publication;
    (2) The terms and conditions of space allocation and slot sales, the 
procedures for allocating space, the establishment of space charter 
rates, and the terms and conditions of charter parties;
    (3) Stevedoring, terminal, and related services including the 
operation of tonnage centers or other joint container marshaling 
facilities;
    (4) The following administrative matters:
    (i) Scheduling of agreement meetings;
    (ii) Collection, collation and circulation of data and reports from 
or to members;
    (iii) Procurement, maintenance, or sharing of office facilities, 
furnishings, equipment and supplies, the allocation and assessment of 
costs thereof, or the provisions for the administration and management 
of such agreements by duly appointed individuals;
    (iv) Procedures for anticipating parties' space requirements;
    (v) Maintenance of books and records; and
    (vi) Details as to the following matters as between parties to the 
agreement: insurance, procedures for resolutions of disputes relating to 
loss and/or damage of cargo, and force majeure clauses;
    (5) The following operational matters:
    (i) Port rotations and schedule adjustments; and

[[Page 220]]

    (ii) Changes in vessel size, number of vessels, or vessel 
substitution or replacement, if the resulting change is within a 
capacity range specified in the agreement; and
    (6) Neutral body policing (limited to the description of neutral 
body authority and procedures related thereto).

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50728, Oct. 1, 2009]



                 Subpart E_Information Form Requirements



Sec. 535.501  General requirements.

    (a) Agreements and modifications to agreements identified in Sec. 
535.502 shall be accompanied by an Information Form containing 
information and data on the agreement and the parties' authority under 
the agreement.
    (b) Parties to an agreement subject to this subpart shall complete 
and submit an original and five copies of the Information Form at the 
time the agreement is filed. A copy of the Form in Microsoft Word and 
Excel format may be downloaded from the Commission's home page at http:/
/www.fmc.gov, or a paper copy of the Form may be obtained from the 
Bureau of Trade Analysis. In lieu of submitting paper copies, parties 
may complete and submit their Information Form in the Commission's 
prescribed electronic format, either on diskette or CD-ROM.
    (c) A complete response in accordance with the instructions on the 
Information Form shall be supplied to each item. If a party to the 
agreement is unable to supply a complete response, that party shall 
provide either estimated data (with an explanation of why precise data 
are not available) or a detailed statement of reasons for noncompliance 
and the efforts made to obtain the required information.
    (d) Agreement parties may supplement the Information Form with any 
additional information or material to assist the Commission's review of 
an agreement.
    (e) The Information Form and any additional information submitted in 
conjunction with the filing of an agreement shall not be disclosed by 
the Commission except as provided in Sec. 535.608.



Sec. 535.502  Agreements subject to the Information Form requirements.

    Agreements and modifications to agreements between or among ocean 
common carriers subject to this subpart are:
    (a) All agreements identified in Sec. 535.201(a), except for low 
market share agreements identified in Sec. 535.311;
    (b) Modifications to an agreement that add any of the following 
authorities:
    (1) The discussion of, or agreement upon, whether on a binding basis 
under a common tariff or a non-binding basis, any kind of rate or 
charge;
    (2) The discussion of, or agreement on, capacity rationalization;
    (3) The establishment of a joint service;
    (4) The pooling or division of cargo traffic, earnings, or revenues 
and/or losses; or
    (5) The discussion of, or agreement on, any service contract matter; 
and
    (c) Modifications that expand the geographic scope of an agreement 
containing any authority identified in Sec. 535.502(b).



Sec. 535.503  Information Form.

    (a) The Information Form, with instructions, for agreements and 
modifications to agreements subject to this subpart, are set forth in 
sections I through V of appendix A of this part. The instructions should 
be read in conjunction with the Act and this part.
    (b) The Information Form shall apply as follows:
    (1) Sections I and V shall be completed by parties to all agreements 
identified in Sec. 535.502;
    (2) Section II shall be completed by parties to agreements 
identified in Sec. 535.502(a) that contain any of the following 
authorities: the charter or use of vessel space in exchange for 
compensation or services; or the rationalization of sailings or services 
relating to a schedule of ports, the frequency of vessel calls at ports, 
or the size and capacity of vessels for deployment. Such authorities do 
not include the establishment of a joint service, nor capacity 
rationalization;
    (3) Section III shall be completed by parties to agreements 
identified in Sec. 535.502 that contain the authority to

[[Page 221]]

discuss or agree on capacity rationalization; and
    (4) Section IV shall be completed by parties to agreements 
identified in Sec. 535.502 that contain any of the following 
authorities:
    (i) The discussion of, or agreement upon, whether on a binding basis 
under a common tariff or a non-binding basis, any kind of rate or 
charge;
    (ii) The establishment of a joint service;
    (iii) The pooling or division of cargo traffic, earnings, or 
revenues and/or losses; or
    (iv) The discussion of, or agreement on, any service contract 
matter.



Sec. 535.504  Application for waiver.

    (a) Upon a showing of good cause, the Commission may waive any part 
of the Information Form requirements in this subpart.
    (b) A request for such a waiver must be submitted and approved by 
the Commission in advance of the filing of the Information Form to which 
the requested waiver would apply. Requests for a waiver shall be 
submitted in writing to the Director, Bureau of Trade Analysis, Federal 
Maritime Commission, Washington, DC 20573-0001, and shall state:
    (1) The specific requirements from which relief is sought;
    (2) The special circumstances requiring the requested relief;
    (3) Relevant trade and industry data and information to substantiate 
and support the special circumstances requiring the requested relief;
    (4) Why granting the requested waiver will not substantially impair 
effective review of the agreement; and
    (5) A description of the full membership, geographic scope, and 
authority of the agreement or the agreement modification that is to be 
filed with the Commission.
    (c) The Commission may take into account the presence or absence of 
shipper complaints as well as the past compliance of the agreement 
parties with any reporting requirement under this part in considering an 
application for a waiver.



                     Subpart F_Action on Agreements



Sec. 535.601  Preliminary review-rejection of agreements.

    (a) The Commission shall make a preliminary review of each filed 
agreement to determine whether the agreement is in compliance with the 
requirements of the Act and this part and, where applicable, whether the 
accompanying Information Form is complete or, where not complete, 
whether the deficiency is adequately explained or is excused by a waiver 
granted by the Commission under Sec. 535.504.
    (b)(1) The Commission shall reject any agreement that fails to 
comply substantially with the filing and Information Form of the Act and 
this part. The Commission shall notify the filing party in writing of 
the reason for rejection of the agreement. The original filing, along 
with any supplemental information or documents submitted, shall be 
returned to the filing party.
    (2) Should a rejected agreement be refiled, the full 45-day waiting 
period will apply to the refiled agreement.



Sec. 535.602  Federal Register notice.

    (a) A notice of any filed agreement will be transmitted to the 
Federal Register within seven days of the date of filing.
    (b) The notice will include:
    (1) A short title for the agreement;
    (2) The identity of the parties to the agreement and the filing 
party;
    (3) The Federal Maritime Commission agreement number;
    (4) A concise summary of the agreement's contents;
    (5) A statement that the agreement is available for inspection at 
the Commission's offices; and
    (6) The final date for filing comments regarding the agreement.



Sec. 535.603  Comment.

    (a) Persons may file with the Secretary written comments regarding a 
filed agreement. Such comments will be submitted in an original and ten 
(10) copies and are not subject to any limitations except the time 
limits provided in the Federal Register notice. Late-filed comments will 
be received only by leave of the Commission and only upon a showing of 
good cause. If requested,

[[Page 222]]

comments and any accompanying material shall be accorded confidential 
treatment to the fullest extent permitted by law. Such requests must 
include a statement of legal basis for confidential treatment including 
the citation of appropriate statutory authority. Where a determination 
is made to disclose all or a portion of a comment, notwithstanding a 
request for confidentiality, the party requesting confidentiality will 
be notified prior to disclosure.
    (b) The filing of a comment does not entitle a person to:
    (1) A reply to the comment by the Commission;
    (2) The institution of any Commission or court proceeding;
    (3) Discussion of the comment in any Commission or court proceeding 
concerning the filed agreement; or
    (4) Participation in any proceeding that may be instituted.



Sec. 535.604  Waiting period.

    (a) The waiting period before an agreement becomes effective shall 
commence on the date that an agreement is filed with the Commission.
    (b) Unless suspended by a request for additional information or 
extended by court order, the waiting period terminates and an agreement 
becomes effective on the later of the 45th day after the filing of the 
agreement with the Commission or on the 30th day after publication of 
notice of the filing in the Federal Register.
    (c) The waiting period is suspended on the date when the Commission, 
either orally or in writing, requests additional information or 
documentary materials pursuant to section 6(d) of the Act (46 U.S.C. 
40304(d)). A new 45-day waiting period begins on the date of receipt of 
all the additional material requested or of a statement of the reasons 
for noncompliance, and the agreement becomes effective in 45 days unless 
the waiting period is further extended by court order or the Commission 
grants expedited review.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50728, Oct. 1, 2009; 74 
FR 65036, Dec. 9, 2009]



Sec. 535.605  Requests for expedited review.

    (a) Upon written request of the filing party, the Commission may 
shorten the waiting period. In support of a request, the filing party 
should provide a full explanation, with reference to specific facts and 
circumstances, of the necessity for a shortened waiting period. In 
reviewing requests, the Commission will consider the parties' needs and 
the Commission's ability to complete its review of the agreement's 
potential impact. In no event, however, may the period be shortened to 
less than fourteen (14) days after the publication of the notice of the 
filing of the agreement in the Federal Register. When a request for 
expedited review is denied, the normal 45-day waiting period will apply. 
Requests for expedited review will not be granted routinely and will be 
granted only on a showing of good cause. Good cause would include, but 
is not limited to, the impending expiration of the agreement; an 
operational urgency; Federal or State imposed time limitations; or other 
reasons that, in the Commission's discretion, constitute grounds for 
granting the request.
    (b) A request for expedited review will be considered for an 
agreement whose 45-day waiting period has begun anew after being stopped 
by a request for additional information.



Sec. 535.606  Requests for additional information.

    (a) The Commission may request from the filing party any additional 
information and documents necessary to complete the statutory review 
required by the Act. The request shall be made prior to the expiration 
of the 45-day waiting period. All responses to a request for additional 
information shall be submitted to the Director, Bureau of Trade 
Analysis, Federal Maritime Commission, Washington, DC 20573.
    (b) Where the Commission has made a request for additional 
information, the agreement's effective date will be 45 days after 
receipt of the complete response to the request for additional 
information. If all questions are not fully answered or requested 
documents are not supplied, the parties must include a statement of 
reasons why questions

[[Page 223]]

were not fully answered or documents supplied. In the event all material 
is not submitted, the agreement's effective date will be 45 days after 
receipt of both the documents and information which are submitted, if 
any, and the statement indicating the reasons for noncompliance. The 
Commission may, upon notice to the Attorney General, and pursuant to 
sections 6(i) and 6(k) of the Act (46 U.S.C. 41307(c) and 41307(d)), 
request the United States District Court for the District of Columbia to 
further extend the agreement's effective date until there has been 
substantial compliance.
    (c) A request for additional information may be made orally or in 
writing. In the case of an oral request, a written confirmation of the 
request shall be mailed to the filing party within seven days of the 
oral request.
    (d) The Commission will publish a notice in the Federal Register 
that it has requested additional information and serve that notice on 
any commenting parties. The notice will indicate only that a request was 
made and will not specify what information is being sought. Interested 
parties will have fifteen (15) days after publication of the notice to 
file further comments on the agreement.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50728, Oct. 1, 2009]



Sec. 535.607  Failure to comply with requests for additional 
information.

    (a) A failure to comply with a request for additional information 
results when a person filing an agreement, or an officer, director, 
partner, agent, or employee thereof fails to substantially respond to 
the request or does not file a satisfactory statement of reasons for 
noncompliance. An adequate response is one which directly addresses the 
Commission's request. When a response is not received by the Commission 
within a specified time, failure to comply will have occurred.
    (b) The Commission may, pursuant to section 6(i) of the Act (46 
U.S.C. 41307(c)), request relief from the United States District Court 
for the District of Columbia when it considers that there has been a 
failure to substantially comply with a request for additional 
information. The Commission may request that the court:
    (1) Order compliance with the request;
    (2) Extend the review period until there has been substantial 
compliance; or
    (3) Grant other equitable relief that under the circumstances seems 
necessary or appropriate.
    (c) Where there has been a failure to substantially comply, section 
6(i)(2) of the Act (46 U.S.C. 41307(c)(2)) provides that the court shall 
extend the review period until there has been substantial compliance.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50729, Oct. 1, 2009]



Sec. 535.608  Confidentiality of submitted material.

    (a) Except for an agreement filed under section 5 of the Act (46 
U.S.C. 40301(d)-(e), 40302-40303, 40305), all information submitted to 
the Commission by the filing party will be exempt from disclosure under 
5 U.S.C. 552. Included in this disclosure exemption is information 
provided in the Information Form, voluntary submission of additional 
information, reasons for noncompliance, and replies to requests for 
additional information.
    (b) Information that is confidential pursuant to paragraph (a) of 
this section may be disclosed, however, to the extent:
    (1) It is relevant to an administrative or judicial action or 
proceeding; or
    (2) It is disclosed to either body of Congress or to a duly 
authorized committee or subcommittee of Congress.
    (c) Parties may voluntarily disclose or make information publicly 
available. If parties elect to disclose information they shall promptly 
inform the Commission.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50729, Oct. 1, 2009]



Sec. 535.609  Negotiations.

    At any time after the filing of an agreement and prior to the 
conclusion of judicial injunctive proceedings, the filing party or an 
authorized representative may submit additional factual or legal support 
for an agreement or may propose modifications of an agreement.

[[Page 224]]

Such negotiations between Commission personnel and filing parties may 
continue during the pendency of injunctive proceedings. Shippers, other 
government departments or agencies, and other third parties may not 
participate in these negotiations.



                    Subpart G_Reporting Requirements



Sec. 535.701  General requirements.

    (a) Parties to agreements identified in Sec. 535.702(a) shall 
submit quarterly Monitoring Reports on an ongoing basis for as long as 
the agreement remains in effect, containing information and data on the 
agreement and the parties' authority under the agreement.
    (b) Parties to agreements identified in Sec. 535.704 are required 
to submit minutes of their meetings for as long as their agreements 
remain in effect.
    (c) If a joint service is a party to an agreement that is subject to 
the requirements of this subpart, the joint service shall be treated as 
one member of that agreement for purposes of that agreement's Monitoring 
Reports.
    (d) Monitoring Reports and minutes required to be filed by this 
subpart should be submitted to: Director, Bureau of Trade Analysis, 
Federal Maritime Commission, Washington, DC 20573-0001. A copy of the 
Monitoring Report form in Microsoft Word and Excel format may be 
downloaded from the Commission's home page at http://www.fmc.gov, or a 
paper copy may be obtained from the Bureau of Trade Analysis. In lieu of 
submitting paper copies, parties may complete and submit their 
Monitoring Reports in the Commission's prescribed electronic format, 
either on diskette or CD-ROM.
    (e)(1) The regulations in this paragraph (e) are stayed until 
further notice.
    (2) Reports and minutes required to be filed by this subpart may be 
filed by direct electronic transmission in lieu of hard copy. Detailed 
information on electronic transmission is available from the 
Commission's Bureau of Trade Analysis. Certification and signature 
requirements of this subpart can be met on electronic transmissions 
through use of a pre-assigned Personal Identification Number (PIN) 
obtained from the Commission. PINs can be obtained by submission by an 
official of the filing party of a statement to the Commission agreeing 
that inclusion of the PIN in the transmission constitutes the signature 
of the official. Only one PIN will be issued for each agreement. Where a 
filing party has more than one official authorized to file minutes or 
reports, each additional official must submit such a statement 
countersigned by the principal official of the filing party. Each filing 
official will be issued a unique password. A PIN or designation of 
authorized filing officials may be canceled or changed at any time upon 
the written request of the principal official of the filing party. 
Direct electronic transmission filings may be made at any time except 
between the hours of 8:30 a.m. and 2 p.m. Eastern time on Commission 
business days.
    (f) Time for filing. Except as otherwise instructed, Monitoring 
Reports shall be filed within 75 days of the end of each calendar 
quarter. Minutes of meetings shall be filed within 21 days after the 
meeting. Other documents shall be filed within 15 days of the receipt of 
a request for documents.
    (g) A complete response in accordance with the instructions on the 
Monitoring Report shall be supplied to each item. If a party to an 
agreement is unable to supply a complete response, that party shall 
provide either estimated data (with an explanation of why precise data 
are not available) or a detailed statement of reasons for noncompliance 
and the efforts made to obtain the required information.
    (h) A Monitoring Report for a particular agreement may be 
supplemented with any other relevant information or documentary 
material.
    (i) Confidentiality. (1) The Monitoring Reports, minutes, and any 
other additional information submitted by a particular agreement will be 
exempt from disclosure under 5 U.S.C. 552, except to the extent:
    (i) It is relevant to an administrative or judicial action or 
proceeding; or
    (ii) It is disclosed to either body of Congress or to a duly 
authorized committee or subcommittee of Congress.
    (2) Parties may voluntarily disclose or make Monitoring Reports, 
minutes

[[Page 225]]

or any other additional information publicly available. The Commission 
must be promptly informed of any such voluntary disclosure.
    (j) Monitoring Report or alternative periodic reporting requirements 
in this subpart shall not be construed to authorize the exchange or use 
by or among agreement members of information required to be submitted.

    Effective Date Note: At 69 FR 64414, Nov. 4, 2004, paragraph (e) of 
Sec. 535.701 was stayed indefinitely.



Sec. 535.702  Agreements subject to Monitoring Report and alternative
periodic reporting requirements.

    (a) Agreements subject to the Monitoring Report requirements of this 
subpart are:
    (1) An agreement that contains the authority to discuss or agree on 
capacity rationalization; or
    (2) Where the parties to an agreement hold a combined market share, 
based on cargo volume, of 35 percent or more in the entire U.S. inbound 
or outbound geographic scope of the agreement and the agreement contains 
any of the following authorities:
    (i) The discussion of, or agreement upon, whether on a binding basis 
under a common tariff or a non-binding basis, any kind of rate or 
charge;
    (ii) The establishment of a joint service;
    (iii) The pooling or division of cargo traffic, earnings, or 
revenues and/or losses; or
    (iv) The discussion of, or agreement on, any service contract 
matter.
    (b) The determination of an agreement's reporting obligation under 
Sec. 535.702(a)(2) in the first instance shall be based on the market 
share data reported on the agreement's Information Form pursuant to 
Sec. 535.503. Thereafter, at the beginning of each calendar year, the 
Bureau of Trade Analysis will notify the agreement parties of any 
changes in its reporting requirements based on market share data 
reported on the agreement's quarterly Monitoring Report for the previous 
second quarter (April-June).
    (c) The Commission may require, as necessary, that the parties to an 
agreement with market share below the 35 percent threshold, as 
identified and defined in Sec. 535.702(a)(2), submit Monitoring Reports 
pursuant to Sec. 535.703.
    (d) In addition to or instead of the Monitoring Report in Sec. 
535.703, the Commission may prescribe, as necessary, alternative 
periodic reporting requirements for parties to any agreement identified 
in Sec. 535.201.



Sec. 535.703  Monitoring Report form.

    (a) For agreements subject to the Monitoring Report requirements in 
Sec. 535.702(a), the Monitoring Report form, with instructions, is set 
forth in sections I through III of appendix B of this part. The 
instructions should be read in conjunction with the Act and this part.
    (b) The Monitoring Report shall apply as follows:
    (1) Section I shall be completed by parties to agreements identified 
in Sec. 535.702(a)(1);
    (2) Section II shall be completed by parties to agreements 
identified in Sec. 535.702(a)(2); and
    (3) Section III shall be completed by parties to all agreements 
identified in Sec. 535.702(a).
    (c) In accordance with the requirements and instructions in appendix 
B of this part, parties to an agreement subject to part 2(C) of section 
I of the Monitoring Report shall submit a narrative statement on any 
significant reductions in vessel capacity that the parties will 
implement under the agreement. The term ``a significant reduction'' is 
defined in appendix B. The narrative statement shall be submitted to the 
Director, Bureau of Trade Analysis, no later than 15 days after a 
significant reduction in vessel capacity has been agreed upon by the 
parties but prior to the implementation of the actual reduction under 
the agreement.
    (d)(1) The Commission may require, in its discretion, that the 
information on the top agreement commodities in part 4 of section II of 
the Monitoring Report be reported on a sub-trade basis, as defined in 
appendix B of this part, rather than on an agreement-wide basis. When 
commodity sub-trade information is required under this section, the 
Commission shall notify the parties to the agreement.
    (2) For purposes of Sec. 535.703(d)(1), the top agreement 
commodities shall mean

[[Page 226]]

the top 10 liner commodities (including commodities not subject to 
tariff publication) carried by all the agreement parties in each sub-
trade within the geographic scope of the agreement during the calendar 
quarter. Where the agreement covers both U.S. inbound and outbound liner 
movements, inbound and outbound sub-trades shall be stated separately. 
All other instructions, definitions, and terms shall apply as specified 
and required in appendix B of this part.



Sec. 535.704  Filing of minutes.

    (a) Agreements required to file minutes. (1) This section applies to 
agreements authorized to engage in any of the following activities: 
discussion or establishment of any type of rates or charges, whether in 
tariffs or service contracts; pooling or apportionment of cargo traffic; 
discussion of revenues, losses, or earnings; or discussion or agreement 
on service contract matters, including the establishment of voluntary 
service contract guidelines.
    (2) Each agreement to which this section applies shall file with the 
Commission, through a designated official, minutes of all meetings 
defined in paragraph (b) of this section, except as provided in 
paragraph (d) of this section.
    (b) Meetings. For purposes of this subpart, the term meeting shall 
include all discussions at which any agreement is reached among any 
number of the parties to an agreement relating to the business of the 
agreement, and all other discussions among three or more members of the 
agreement (or all members if fewer than three) relating to the business 
of the agreement. This includes, but is not limited to, meetings of the 
members' agents, principals, owners, officers, employees, 
representatives, committees, or subcommittees, and communications among 
members facilitated by agreement officials. Discussions conducted by 
telephone, electronic device, or other means are included.
    (c) Content of minutes. Minutes shall include the following:
    (1) The date, time, and place of the meeting;
    (2) A list of participants and companies represented;
    (3) A description of discussions detailed enough so that a non-
participant reading the minutes could reasonably gain a clear 
understanding of the nature and extent of the discussions and, where 
applicable, any decisions reached. Such description need not disclose 
the identity of the parties that participated in the discussion or the 
votes taken; and
    (4) Any report, circular, notice, statistical compilation, 
analytical study, survey, or other work distributed, discussed, or 
exchanged at the meeting, whether presented by oral, written, 
electronic, or other means. Where the aforementioned materials are 
reasonably available to the public, a citation to the work or relevant 
part thereof is acceptable in lieu of the actual work. Any documents 
submitted to the Commission pursuant to this section need not disclose 
the identity of the party or parties that circulated the document at the 
meeting.
    (d) Exemption. For parties to agreements subject to this section, 
the following exemptions shall apply:
    (1) Minutes of meetings between parties are not required to reflect 
discussions of matters set forth in Sec. 535.408(b)(2), (b)(3), 
(b)(4)(iii), (b)(4)(iv), (b)(4)(v), and (b)(4)(vi);
    (2) Minutes of meetings between parties are not required to reflect 
discussion of matters set forth in Sec. 535.408(b)(5) to the extent 
that such discussions involve minor operational matters that have little 
or no impact on the frequency of vessel calls at ports or the amount of 
vessel capacity offered by the parties in the geographic scope of the 
agreement; and
    (3) Minutes of meetings between parties are not required to reflect 
discussions of or actions taken with regard to rates that, if adopted, 
would be required to be published in an appropriate tariff. This 
exemption does not apply to discussions concerning general rate policy, 
general rate changes, the opening or closing of rates, service 
contracts, or time/volume rates.
    (e) Serial numbers. Each set of minutes filed with the Commission 
shall include the agreement name and FMC number and a unique 
identification number indicating the sequence in

[[Page 227]]

which the meeting took place during the calendar year.

[69 FR 64414, Nov. 4, 2004, as amended at 70 FR 20303, Apr. 19, 2005]



Sec. 535.705  Application for waiver.

    (a) Upon a showing of good cause, the Commission may waive any 
requirement of this subpart.
    (b) A request for such a waiver must be submitted and approved by 
the Commission in advance of the filing of the Monitoring Report or 
minutes to which the requested waiver would apply. Requests for a waiver 
shall be submitted in writing to the Director, Bureau of Trade Analysis, 
Federal Maritime Commission, Washington, DC 20573-0001, and shall state 
and provide the following:
    (1) The specific requirements from which relief is sought;
    (2) The special circumstances requiring the requested relief;
    (3) Relevant trade and industry data and information to substantiate 
and support the special circumstances requiring the requested relief; 
and
    (4) Why granting the requested waiver will not substantially impair 
effective monitoring of the agreement.
    (c) The Commission may take into account the presence or absence of 
shipper complaints as well as the past compliance of the agreement 
parties with any reporting requirement under this part in considering an 
application for a waiver.



              Subpart H_Mandatory and Prohibited Provisions



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 (46 
U.S.C. 40303(b)(8)).
    (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.
    (2) A conference agreement shall not prescribe notice periods for 
adopting, withdrawing, postponing, canceling, or taking other similar 
actions on independent actions.
    (c) Each conference agreement shall indicate the conference 
official, single designated representative, or conference office to 
which notice of independent action is to be provided. A conference 
agreement shall not require notice of independent action to be given by 
the proposing member to the other parties to the agreement.
    (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) As it pertains to this part, ``adopt'' means the assumption 
in identical form of an originating member's independent action rate or 
service item, or a particular portion of such a rate or service item. If 
a carrier adopts an IA at a lower rate than the conference rate when 
there is less than 30 days remaining on the original IA, the adopted IA 
should be made to expire 30 days after its effectiveness to comply with 
the statutory 30-day notice requirement. In the case of an independent 
action time/volume rate (``IA

[[Page 228]]

TVR''), the dates of the adopting IA may vary from the dates of the 
original IA, so long as the duration of the adopting IA is the same as 
that of the originating IA. Furthermore, no term other than ``adopt'' 
(e.g., ``follow,'' ``match'') can be used to describe the action of 
assuming as one's own an initiating carrier's IA. 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 that 
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 
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.
    (g) A conference agreement shall not require or permit individual 
member lines to be assessed on a per carrier usage basis the costs and/
or administrative expenses incurred by the agreement in processing 
independent action filings.
    (h) A conference agreement may not permit the conference to 
unilaterally designate an expiration date for an independent action 
taken by a member line. The right to determine the duration of an IA 
remains with the member line, and a member line must be given the 
opportunity to designate whatever duration it chooses for its IA, 
regardless if the duration is for a specified period or open ended. Only 
in instances where a member line gives its consent to the conference, or 
where a member line freely elects not to provide for the duration of its 
IA after having been given the opportunity, can the conference designate 
an expiration date for the member line's IA.
    (i) Any new conference agreement or any modification to an existing 
conference agreement that does not comply with the requirements of this 
section shall be rejected pursuant to Sec. 535.601 of this part.
    (j) If ratemaking is by sections within a conference, then any 
notice to the conference required by Sec. 535.801 may be made to the 
particular ratemaking section.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50729, Oct. 1, 2009]



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 Act (46 
U.S.C. 40502(d)).
    (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 Trade Analysis, Federal Maritime Commission, Washington, DC 20573-
0001. Voluntary guidelines shall be kept confidential in accordance with 
Sec. 535.608

[[Page 229]]

of this part. Use of voluntary guidelines prior to their submission is 
prohibited.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50729, Oct. 1, 2009]



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.



                           Subpart I_Penalties



Sec. 535.901  Failure to file.

    Any person operating under an agreement, involving activities 
subject to the Act pursuant to sections 4 and 5(a) of the Act (46 U.S.C. 
40301(a)-(c) and 40302) and this part and not exempted pursuant to 
section 16 of the Act (46 U.S.C. 40103) or excluded from filing by the 
Act, that has not been filed and that has not become effective pursuant 
to the Act and this part is in violation of the Act and this part and is 
subject to the civil penalties set forth in section 13(a) of the Act (46 
U.S.C. 41107).

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50729, Oct. 1, 2009]



Sec. 535.902  Falsification of reports.

    Knowing falsification of any report required by the Act or this 
part, including knowing falsification of any item in any applicable 
agreement information and/or reporting requirements pursuant to subparts 
E and G of this part, is a violation of the rules of this part and is 
subject to the civil penalties set forth in section 13(a) of the Act (46 
U.S.C. 41107) and may be subject to the criminal penalties provided for 
in 18 U.S.C. 1001.

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50730, Oct. 1, 2009]



                      Subpart J_Paperwork Reduction



Sec. 535.991  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

    This section displays the control number assigned to information 
collection requirements of the Commission in this part by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act of 1995, 
Pub. L. 104-13. The Commission intends that this section comply with the 
requirements of section 3507(a)(3) of the Paperwork Reduction Act, which 
requires that agencies display a current control number assigned by the 
Director of the Office of Management and Budget (OMB) for each agency 
information collection requirement in the following table:

------------------------------------------------------------------------
                                                            Current OMB
                         Section                            control No.
------------------------------------------------------------------------
535.101 through 535.902.................................       3072-0045
------------------------------------------------------------------------



     Sec. Appendix A to Part 535--Information Form and Instructions

                      Information Form Instructions

    1. All agreements and modifications to agreements between or among 
ocean common carriers identified in 46 CFR 535.502 must be accompanied 
by a completed Information Form to the full extent required in sections 
I through V of this Form. Sections I and V must be completed by all such 
agreements. In addition, sections II, III and IV must be completed, as 
applicable, in accordance with the authority contained in each 
agreement. Where an agreement containing multiple authorities is subject 
to duplicate reporting requirements in the various sections of this 
Form, the parties may provide only one response so long as the reporting 
requirements within each section are fully addressed. The Information 
Form specifies the data and information which must be reported for each 
section and the format in which it must be provided. If a party to an 
agreement is unable to supply a complete response to any item of this 
Form, that party shall provide either estimated data (with an 
explanation of why precise data are not available) or a detailed 
statement of reasons for noncompliance and the efforts made to obtain 
the required information. For purposes of this Form, if one of the 
agreement signatories is a joint service operating under an effective 
agreement, that signatory shall respond to the Form as a single 
agreement party.

[[Page 230]]

    2. For clarification of the agreement terminology used in this Form, 
the parties may refer to the definitions provided in 46 CFR 535.104. In 
addition, the following definitions shall apply for purposes of this 
Form: liner movement means the carriage of liner cargo by liner 
operators; liner cargo means cargo carried on liner vessels in a liner 
service; liner operator means a vessel-operating common carrier engaged 
in liner service; liner vessel means a vessel used in a liner service; 
liner service means a definite, advertised schedule of sailings at 
regular intervals; and TEU means a unit of measurement equivalent to one 
20-foot shipping container. Further, when used in this Form, the terms 
``entire geographic scope of the agreement'' or ``agreement-wide'' refer 
to the combined U.S. inbound trade and/or the combined U.S. outbound 
trade as such trades apply to the geographic scope of the agreement, as 
opposed to the term ``sub-trade,'' which is defined for reporting 
purposes as the scope of all liner movements between each U.S. port 
range and each foreign country within the scope of the agreement. 
Whether required on a combined trade basis or a sub-trade basis, the 
U.S. inbound trade (or sub-trades) and the U.S. outbound trade (or sub-
trades) shall always be stated separately.

                                Section I

    Section I applies to all agreements identified in 46 CFR 535.502. 
Parties to such agreements must complete parts 1 through 4 of this 
section. The authorities listed in part 4 of this section do not 
necessarily include all of the authorities that must be set forth in an 
agreement filed under the Act. The specific authorities between the 
parties to an agreement, however, must be set forth, clearly and 
completely, in a filed agreement in accordance with 46 CFR 535.402.

                                 Part 1

    State the full name of the agreement.

                                 Part 2

    Provide a narrative statement describing the specific purpose(s) of 
the agreement pertaining to the parties' business activities as ocean 
common carriers in the foreign commerce of the United States, and the 
commercial or other relevant circumstances within the geographic scope 
of the agreement that led the parties to enter into the agreement.

                                 Part 3

    List all effective agreements that cover all or part of the 
geographic scope of this agreement, and whose parties include one or 
more of the parties to this agreement.

                                Part 4(A)

    Identify whether the agreement authorizes the parties to discuss, or 
agree upon, whether on a binding basis under a common tariff or a non-
binding basis, any kind of rate or charge.

                                Part 4(B)

    Identify whether the agreement authorizes the parties to establish a 
joint service.

                                Part 4(C)

    Identify whether the agreement authorizes the parties to pool cargo 
traffic or revenues.

                                Part 4(D)

    Identify whether the agreement authorizes the parties to discuss, or 
agree on, any service contract matter.

                                Part 4(E)

    Identify whether the agreement authorizes the parties to discuss or 
agree on capacity rationalization as defined in 46 CFR 535.104(e).

                                Part 4(F)

    Identify whether the agreement contains provisions that place 
conditions or restrictions on the parties' agreement participation, and/
or use or offering of competing services within the geographic scope of 
the agreement.

                                Part 4(G)

    Identify whether the agreement authorizes the parties to charter or 
use vessel space in exchange for compensation or services. This 
authority does not include capacity rationalization as referred to in 
part 4(E) of this section.

                                Part 4(H)

    Identify whether the agreement authorizes the parties to rationalize 
sailings or services relating to a schedule of ports, the frequency of 
vessel calls at ports, or the size and capacity of vessels for 
deployment. This authority does not include the establishment of a joint 
service or capacity rationalization as referred to in parts 4(B) and 
4(E) of this section.

                               Section II

    Section II applies to agreements identified in 46 CFR 535.502(a) 
that contain any of the following authorities: a) the charter or use of 
vessel space in exchange for compensation or services; or b) the 
rationalization of sailings or services relating to a schedule of ports, 
the frequency of vessel calls at ports, or the size and capacity of 
vessels for deployment. Such authorities do not include the 
establishment of a ``joint service,'' nor ``capacity rationalization'' 
as these terms are defined in 46 CFR 535.104 (o) and (e). Parties to 
agreements identified in this section must complete all items in part 1.

[[Page 231]]

                                Part 1(A)

    For the most recent 12-month period for which complete data are 
available, provide the number of vessel calls each party made at each 
port for its liner services that would be covered by the agreement 
within the entire geographic scope of the agreement.

                                Part 1(B)

    Provide a narrative statement on any significant changes, 
anticipated or planned to be implemented when the agreement goes into 
effect, in the number of vessel calls at a port for the parties' liner 
services that would be covered by the agreement within the entire 
geographic scope of the agreement. Specifically, explain the nature of 
the significant change and its effect on the frequency of vessel calls 
at the port for the liner service that would be subject to the change. 
For purposes of this part, a significant change refers to an increase or 
a decrease in the number of vessel calls at a port for a fixed, 
seasonally planned, or indefinite period of time. A significant change 
excludes an incidental or temporary alteration in the number of vessel 
calls at a port, or an operational change in vessel calls that would 
have little or no impact on the number of vessel calls at a port. If no 
significant change is anticipated or planned, it shall be noted with the 
term ``none'' in response to part 1(B) of this section.

                               Section III

    Section III applies to agreements identified in 46 CFR 535.502 that 
contain the authority to discuss or agree on capacity rationalization as 
defined in 46 CFR 535.104(e). Parties to such agreements must complete 
parts 1 and 2 of this section.

                                Part 1(A)

    1. For the most recent calendar quarter for which complete data are 
available, provide the amount of vessel capacity for each party for each 
of its liner services that would be covered by the agreement within the 
entire geographic scope of the agreement, stated separately for the U.S. 
inbound and outbound trades as applicable to the geographic scope of the 
agreement. For purposes of this Form, vessel capacity means a party's 
total commercial liner space on line-haul vessels, whether operated by 
it or other parties from whom space is obtained, sailing to and/or from 
the continent of North America for each of its liner services that would 
be covered by the agreement.
    2. When 50 percent or more of the total liner cargo carried by all 
the parties in the geographic scope of the agreement during the calendar 
quarter was containerized, the amount(s) of vessel capacity for each 
party shall be reported in TEUs. When 50 percent or more of the total 
liner cargo carried by all the parties in the geographic scope of the 
agreement during the calendar quarter was non-containerized, the 
amount(s) of vessel capacity for each party shall be reported in non-
containerized units of measurement. The unit of measurement used in 
calculating the amounts of non-containerized vessel capacity must be 
specified clearly and consistently applied.

                                Part 1(B)

    Provide the percentage of vessel capacity utilization for each party 
for each of its liner services that would be covered by the agreement 
within the entire geographic scope of the agreement, corresponding to 
the figures and time period used in part 1(A) of this section, stated 
separately for the U.S. inbound and outbound trades as applicable to the 
geographic scope of the agreement. For purposes of this Form, the 
percentage of vessel capacity utilization means a party's total volume 
of liner cargo, for each of its liner services that would be covered by 
the agreement, carried on any vessel space counted under part 1(A) of 
this section, divided by its total vessel capacity as defined and 
derived in part 1(A) of this section, which quotient is multiplied by 
100.

                                Part 1(C)

    Provide a narrative statement on any significant changes, 
anticipated or planned to be implemented when the agreement goes into 
effect, in the amounts of vessel capacity for the parties' liner 
services that would be covered by the agreement within the entire 
geographic scope of the agreement. Specifically, explain the nature of 
and the reasons for the significant change and its effects on the liner 
service and the total amount of vessel capacity for such service that 
would be subject to the change. For purposes of this part, a significant 
change refers to the removal from or addition to a liner service of 
vessels or vessel space for a fixed, seasonally planned, or indefinite 
period of time. A significant change excludes instances when vessels may 
be temporarily repositioned or shifted from one service to another, or 
when vessel space may be temporarily altered, or when vessels are 
removed from a liner service and vessels of similar capacity are 
substituted. It also excludes operational changes in vessels or vessel 
space that would have little or no impact on the amount of vessel 
capacity offered in a liner service or a trade. If no significant change 
is anticipated or planned, it shall be noted with the term ``none'' in 
response to part 1(C) of this section.

                                Part 2(A)

    For the most recent 12-month period for which complete data are 
available, provide the number of vessel calls each party made

[[Page 232]]

at each port for its liner services that would be covered by the 
agreement within the entire geographic scope of the agreement.

                                Part 2(B)

    Provide a narrative statement on any significant changes, 
anticipated or planned to be implemented when the agreement goes into 
effect, in the number of vessel calls at a port for the parties' liner 
services that would be covered by the agreement within the entire 
geographic scope of the agreement. Specifically, explain the nature of 
the significant change and its effect on the frequency of vessel calls 
at the port for the liner service that would be subject to the change. 
For purposes of this part, a significant change refers to an increase or 
a decrease in the number of vessel calls at a port for a fixed, 
seasonally planned, or indefinite period of time. A significant change 
excludes an incidental or temporary alteration in the number of vessel 
calls at a port, or an operational change in vessel calls that would 
have little or no impact on the number of vessel calls at a port. If no 
significant change is anticipated or planned, it shall be noted with the 
term ``none'' in response to part 2(B) of this section.

                               Section IV

    Section IV applies to agreements identified in 46 CFR 535.502 that 
contain any of the following authorities: a) the discussion of, or 
agreement upon, whether on a binding basis under a common tariff or a 
non-binding basis, any kind of rate or charge; b) the establishment of a 
joint service; c) the pooling or division of cargo traffic, earnings, or 
revenues and/or losses; or d) the discussion of, or agreement on, any 
service contract matter. Parties to such agreements must complete parts 
1 through 5 of this section.

                                 Part 1

    1. For the most recent calendar quarter for which complete data are 
available, provide the market shares of all liner operators for the 
entire geographic scope of the agreement and in each sub-trade within 
the scope of the agreement. A joint service shall be treated as a single 
liner operator, whether it is an agreement line or a non-agreement line. 
Sub-trade is defined as the scope of all liner movements between each 
U.S. port range within the scope of the agreement and each foreign 
country within the scope of the agreement. Where the agreement covers 
both U.S. inbound and outbound liner movements, inbound and outbound 
market shares shall be shown separately.
    2. U.S. port ranges are defined as follows:
    a. Atlantic and Gulf--Includes ports along the eastern seaboard and 
the Gulf of Mexico from the northern boundary of Maine to Brownsville, 
Texas. Also includes all ports bordering upon the Great Lakes and their 
connecting waterways, all ports in the State of New York on the St. 
Lawrence River, and all ports in Puerto Rico and the U.S. Virgin 
Islands.
    b. Pacific--Includes all ports in the States of Alaska, Hawaii, 
California, Oregon, and Washington. Also includes all ports in Guam, 
American Samoa, Northern Marianas, Johnston Island, Midway Island, and 
Wake Island.
    3. An application may be filed for a waiver of the definition of 
``sub-trade'' under the procedures described in 46 CFR 535.504. In any 
such application, the burden shall be on the parties to show that their 
marketing and pricing practices have been done by ascertainable multi-
country regions rather than by individual countries or, in the case of 
the United States, by broader areas than the port ranges defined herein. 
The parties must further show that, though operating individually, they 
were nevertheless applying essentially similar regional practices.
    4. The formula for calculating market share in the entire agreement 
scope or in a sub-trade is as follows: The total amount of liner cargo 
carried on each liner operator's liner vessels in the entire agreement 
scope or in the sub-trade during the most recent calendar quarter for 
which complete data are available, divided by the total liner movements 
in the entire agreement scope or in the sub-trade during the same 
calendar quarter, which quotient is multiplied by 100. The calendar 
quarter used must be clearly identified. The market shares held by non-
agreement lines as well as by agreement lines must be provided, stated 
separately in the format indicated.
    5. If 50 percent or more of the total liner cargo carried by the 
parties in the entire agreement scope during the calendar quarter was 
containerized, only containerized liner movements (measured in TEUs) 
must be used for determining market share. If 50 percent or more of the 
total liner cargo carried by the parties was non-containerized, only 
non-containerized liner movements must be used for determining market 
share. The unit of measurement used in calculating amounts of non-
containerized cargo must be specified clearly and applied consistently.

                                 Part 2

    1. For each party that served all or any part of the geographic 
scope of the agreement during all or any part of the most recent 12-
month period for which complete data are available, provide each party's 
total liner revenues within the geographic scope, total liner cargo 
carried within the geographic scope, and average revenue. For purposes 
of this Form, total liner revenues means the total revenues, in U.S. 
dollars, of each party corresponding to its total cargo carried for its 
liner services that would fall under the agreement, inclusive of all 
ocean

[[Page 233]]

freight charges, whether assessed on a port-to-port basis or a through 
intermodal basis; accessorial charges; surcharges; and charges for 
inland cargo carriage. Average revenue shall be calculated as the 
quotient of each party's total liner revenues within the geographic 
scope divided by its total cargo carried within the geographic scope.
    2. When 50 percent or more of the total liner cargo carried by all 
the parties in the geographic scope of the agreement during the 12-month 
period was containerized, each party shall report only its total 
carryings of containerized liner cargo (measured in TEUs) within the 
geographic scope, total revenues generated by its carriage of 
containerized liner cargo, and average revenue per TEU. When 50 percent 
or more of the total liner cargo carried by all the parties in the 
geographic scope of the agreement during the 12-month period was non-
containerized, each party shall report only its total carryings of non-
containerized liner cargo (specifying the unit of measurement used), 
total revenues generated by its carriage of non-containerized liner 
cargo, and average revenue per unit of measurement. When the agreement 
covers both U.S. inbound and outbound liner movements, inbound and 
outbound data shall be stated separately.

                                Part 3(A)

    For the same 12-month period used in part 2 of this section, provide 
a list, for the entire geographic scope of the agreement, of the top 10 
liner commodities (including commodities not subject to tariff 
publication) carried by all the parties for their liner services that 
would fall under the agreement. For purposes of this Form, commodities 
shall be identified at the 4-digit level of customarily used commodity 
coding schedules. When 50 percent or more of the total liner cargo 
carried by all the parties in the geographic scope of the agreement 
during the 12-month period was containerized, this list shall include 
only containerized commodities. When 50 percent or more of the total 
liner cargo carried by all the parties in the geographic scope of the 
agreement during the 12-month period was non-containerized, this list 
shall include only non-containerized commodities. When the agreement 
covers both U.S. inbound and outbound liner movements, inbound and 
outbound data shall be stated separately.

                                Part 3(B)

    Provide the cargo volume and revenue results for each party for each 
of the major commodities listed in part 3(A) of this section, 
corresponding to the same 12-month period and unit of measurement used. 
For purposes of this Form, revenue results means the revenues, in U.S. 
dollars, earned by each party on the cargo volume of each major 
commodity listed in part 3(A) of this section, inclusive of all ocean 
freight charges, whether assessed on a port-to-port basis or a through 
intermodal basis; accessorial charges; surcharges; and charges for 
inland cargo carriage. If a party has no cargo volume and revenue 
results for a commodity listed in part 3(A) of this section, it shall be 
noted by using a zero for that party in response to part 3(B) of this 
section.

                                Part 4(A)

    For the same calendar quarter used in part 1 of this section, 
provide the amount of vessel capacity for each party for each of its 
liner services that would fall under the agreement within the entire 
geographic scope of the agreement, stated separately for the U.S. 
inbound and outbound trades as applicable to the geographic scope of the 
agreement. For purposes of this Form, vessel capacity means a party's 
total commercial liner space on line-haul vessels, whether operated by 
it or other parties from whom space is obtained, sailing to and/or from 
the continent of North America for each of its liner services that would 
fall under the agreement. When 50 percent or more of the total liner 
cargo carried by all the parties in the geographic scope of the 
agreement during the calendar quarter was containerized, the amount(s) 
of vessel capacity for each party shall be reported in TEUs. When 50 
percent or more of the total liner cargo carried by all the parties in 
the geographic scope of the agreement during the calendar quarter was 
non-containerized, the amount(s) of vessel capacity for each party shall 
be reported in non-containerized units of measurement. The unit of 
measurement used in calculating the amounts of non-containerized vessel 
capacity must be specified clearly and consistently applied.

                                Part 4(B)

    Provide the percentage of vessel capacity utilization for each party 
for each of its liner services that would fall under the agreement 
within the entire geographic scope of the agreement, corresponding to 
the figures and time period used in part 4(A) of this section, stated 
separately for the U.S. inbound and outbound trades as applicable to the 
geographic scope of the agreement. For purposes of this Form, the 
percentage of vessel capacity utilization means a party's total volume 
of liner cargo, for each of its liner services that would fall under the 
agreement, carried on any vessel space counted under part 4(A) of this 
section, divided by its total vessel capacity as defined and derived in 
part 4(A) of this section, which quotient is multiplied by 100.

[[Page 234]]

                                Part 4(C)

    Provide a narrative statement on any significant changes, 
anticipated or planned for when the agreement goes into effect, in the 
amounts of vessel capacity for the parties' liner services that would 
fall under the agreement within the entire geographic scope of the 
agreement. Specifically, explain the nature of and reasons for the 
significant change and its effects on the liner service and the total 
amount of vessel capacity for such service that would be subject to the 
change. For purposes of this part, a significant change refers to the 
removal from or addition to a liner service of vessels or vessel space 
for a fixed, seasonally planned, or indefinite period of time. A 
significant change excludes instances when vessels may be temporarily 
repositioned or shifted from one service to another, or when vessel 
space may be temporarily altered, or when vessels are removed from a 
liner service and vessels of similar capacity are substituted. It also 
excludes operational changes in vessels or vessel space that would have 
little or no impact on the amount of vessel capacity offered in a liner 
service or a trade. If no significant change is anticipated or planned, 
it shall be noted with the term ``none'' in response to part 4(C) of 
this section.

                                Part 5(A)

    For the same 12-month period used in parts 2 and 3 of this section, 
provide the number of vessel calls each party made at each port for its 
liner services that would fall under the agreement within the entire 
geographic scope of the agreement.

                                Part 5(B)

    Provide a narrative statement on any significant changes, 
anticipated or planned for when the agreement goes into effect, in the 
number of vessel calls at a port for the parties' liner services that 
would fall under the agreement within the entire geographic scope of the 
agreement. Specifically, explain the nature of the significant change 
and its effect on the frequency of vessel calls at the port for the 
liner service that would be subject to the change. For purposes of this 
part, a significant change refers to an increase or decrease in the 
number of vessel calls at a port for a fixed, seasonally planned, or 
indefinite period of time. A significant change excludes an incidental 
or temporary alteration in vessel calls at a port, or an operational 
change in vessel calls that would have little or no impact on the number 
of vessel calls at a port. If no significant change is anticipated or 
planned, it shall be noted with the term ``none'' in response to part 
5(B) of this section.

                                Section V

    Section V applies to all agreements identified in 46 CFR 535.502. 
Parties to such agreements must complete all items in part 1 of this 
section.

                                Part 1(A)

    State the name, title, address, telephone and fax numbers, and 
electronic mail address of a person the Commission may contact regarding 
the Information Form and any information provided therein.

                                Part 1(B)

    State the name, title, address, telephone and fax numbers, and 
electronic mail address of a person the Commission may contact regarding 
a request for additional information or documents.

                                Part 1(C)

    A representative of the parties shall sign the Information Form and 
certify that the information in the Form and all attachments and 
appendices are, to the best of his or her knowledge, true, correct and 
complete. The representative also shall indicate his or her relationship 
with the parties to the agreement.

             Privacy Act and Paperwork Reduction Act Notice

    1. The collection of this information is authorized generally by 
section 15 of the Shipping Act of 1984 (46 U.S.C. 40104). The submission 
of this form is mandatory for parties to agreements that contain certain 
authorities.
    2. You are not required to provide information requested on a form 
that is subject to the Paperwork Reduction Act unless the form displays 
a valid OMB control number. The valid control number for this 
information collection is 3072-0045.
    3. The time needed to complete and submit this form will vary 
depending on individual circumstances. The total estimated average time 
to complete this form is about 30 hours. This estimate includes reading 
the instructions, collecting necessary data, and compiling that data.
    4. If you have any comments concerning the accuracy of the above 
estimate or have any suggestions for simplifying the form, please 
contact Secretary, Federal Maritime Commission, 800 North Capitol 
Street, NW., Washington, DC 20573-0001; or by e-mail secretary@fmc.gov.

FMC Form-150                                   OMB Control No. 3072-0045

[[Page 235]]

 
                       FEDERAL MARITIME COMMISSION
                          INFORMATION FORM FOR
            AGREEMENTS BETWEEN OR AMONG OCEAN COMMON CARRIERS
 

                                Section I

                                 Part 1

 Agreement Name:________________________________________________________

                                 Part 2

 Narrative statement on agreement purpose, and commercial or other 
circumstances requiring the agreement:__________________________________

________________________________________________________________________

________________________________________________________________________

                                 Part 3

    List all effective agreements covering all or part of the geographic 
scope of this agreement, whose parties include one or more of the 
parties to this agreement.

                                 Part 4

This agreement includes:
    (A) Authority to discuss or agree upon rates    Yes [squ]   No [squ]
     or charges?..................................
    (B) Joint service?............................  Yes [squ]   No [squ]
    (C) Pooling of cargo traffic or revenues?.....  Yes [squ]   No [squ]
    (D) Authority to discuss or agree on service    Yes [squ]   No [squ]
     contracts and their terms?...................
    (E) Authority to discuss or agree on capacity   Yes [squ]   No [squ]
     rationalization?.............................
    (F) Conditions or restrictions on the parties'  Yes [squ]   No [squ]
     agreement participation, and/or use or
     offering of competing services in the
     geographic scope?............................
    (G) Authority to charter vessel space?........  Yes [squ]   No [squ]
    (H) Authority to rationalize sailings or        Yes [squ]   No [squ]
     services?....................................
 

                               Section II

                                 Part 1

(A) Vessel Calls
Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [12-Months]
[Port Names] Port 1 Port 2 Port 3 Port 4 Etc. . . .
Carrier A [Name]
Carrier B
Carrier C
Etc. . . .

 (B) Narrative statement on significant changes in vessel calls:________

________________________________________________________________________

________________________________________________________________________

                               Section III

                 Part 1 Vessel Capacity And Utilization

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                            (A) Vessel
                                          Capacity [TEUs        (B)
                                             or other       Utilization
                                              units]         [percent]
 
Carrier A [Name]
    Liner Service 1 [Name]..............          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Carrier B
    Liner Service 1.....................          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
 

Etc. . . .

 (C) Narrative statement on significant changes in vessel capacity:_____

________________________________________________________________________

________________________________________________________________________


[[Page 236]]

________________________________________________________________________

                           Part 2 Vessel Calls

(A) Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [12-Months]
[Port Names] Port 1 Port 2 Port 3 Port 4 Etc. . . .
Carrier A [Name]
Carrier B
Carrier C
Etc. . . .

 (B) Narrative statement on significant changes in vessel calls:________

________________________________________________________________________

________________________________________________________________________

                               Section IV

                           Part 1 Market Share

Agreement-Wide Trade (or Sub-Trade): U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                          TEUs [or other
                                              units]          Percent
 
Agreement Market Share:
    Line A [Name].......................           X,XXX              XX
    Line B..............................           X,XXX              XX
    Line C..............................           X,XXX              XX
    Etc. . . .
        Total Agreement.................           X,XXX              XX
Non-Agreement Market Share:
    Line X..............................           X,XXX              XX
    Line Y..............................           X,XXX              XX
    Line Z..............................           X,XXX              XX
    Etc. . . .
        Total Non-Agreement.............           X,XXX              XX
Total Trade [or Sub-Trade]..............           X,XXX             100
 

                  Part 2 Total Liner Cargo and Revenues

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [12-Months]

 
                                                                                  TEUs [or other      Average
                             [Name]                               Total revenues      units]          revenue
 
Carrier A.......................................................               $           X,XXX               $
Carrier B.......................................................               $           X,XXX               $
Carrier C.......................................................               $           X,XXX               $
    Etc. . . .
 

                      Part 3 Top Liner Commodities

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Same 12-Months in part 2 of this section]

 
                             [Name]                                  Carrier A       Carrier B      Etc. . . .
 
Commodity 1 [Name and 4-Digit Code]:
    TEUs [or other units].......................................           X,XXX           X,XXX
    Revenues....................................................               $               $
Commodity 2:
    TEUs........................................................           X,XXX           X,XXX
    Revenues....................................................               $               $
    Etc. . . .
 

                 Part 4 Vessel Capacity and Utilization

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Same Calendar Quarter in part 1 of this section]

[[Page 237]]


 
                                            (A) Vessel
                                          capacity [TEUs        (B)
                                             or other       Utilization
                                              units]         [percent]
 
Carrier A [Name]
    Liner Service 1 [Name]..............          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Carrier B
    Liner Service 1.....................          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Etc. . . .
 

 (C) Narrative statement on significant changes in vessel capacity:_____

________________________________________________________________________

________________________________________________________________________

                                 Part 5

(A) Vessel Calls
Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Same 12-Months in parts 2 and 3 of this section]
[Port Names] Port 1 Port 2 Port 3 Port 4 Etc. . . .
Carrier A [Name]
Carrier B
Carrier C
Etc. . . .
 (B) Narrative statement on significant changes in vessel calls:________

________________________________________________________________________

________________________________________________________________________

                                Section V

                Part 1 Contact Persons and Certification

(A) Person(s) to Contact Regarding Information Form.

 (1) Name_______________________________________________________________

 (2) Title______________________________________________________________

 (3) Firm Name and Business_____________________________________________

 (4) Business Telephone Number__________________________________________

 (5) Fax Number_________________________________________________________

 (6) E-Mail Address_____________________________________________________

(B) Individual Located in the United States Designated for the Limited 
Purpose of Receiving Notice of an Issuance of a Request for Additional 
Information or Documents (see 46 CFR 535.606).

 (1) Name_______________________________________________________________

 (2) Title______________________________________________________________

 (3) Firm Name and Business_____________________________________________

 (4) Business Telephone Number__________________________________________

 (5) Fax Number_________________________________________________________

 (6) E-Mail Address_____________________________________________________

(C) Certification

This Information Form, together with any and all appendices and 
attachments thereto, was prepared and assembled in accordance with 
instructions issued by the Federal Maritime Commission. The information 
is, to the best of my knowledge, true, correct, and complete.

 Name (please print or type)____________________________________________

 Title__________________________________________________________________

 Relationship with parties to agreement_________________________________

 Signature______________________________________________________________

 Date___________________________________________________________________

[69 FR 64414, Nov. 4, 2004, as amended at 70 FR 20304, Apr. 19, 2005; 74 
FR 50730, Oct. 1, 2009]



     Sec. Appendix B to Part 535--Monitoring Report and Instructions

                     Monitoring Report Instructions

    1. All agreements between or among ocean common carriers identified 
in 46 CFR 535.702(a) must submit completed Monitoring Reports to the 
full extent required in sections I through III of this Report. Sections 
I and II must be completed, as applicable, in accordance with the 
authority contained in each agreement. Section III must be completed by 
all agreements subject to Monitoring Report requirements.
    2. Where an agreement containing multiple authorities is subject to 
duplicate reporting requirements in the various sections of this Report, 
the parties may provide only one response so long as the reporting 
requirements within each section are fully addressed. The Monitoring 
Report specifies the data and information which must be reported for 
each section and the format in which it must be provided. If a party to 
an agreement is unable to supply a complete response to any item of this 
Report, that party shall provide either estimated data (with an 
explanation of why precise data are not available) or a

[[Page 238]]

detailed statement of reasons for noncompliance and the efforts made to 
obtain the required information. For purposes of this Report, if one of 
the agreement signatories is a joint service operating under an 
effective agreement, that signatory shall respond to the Report as a 
single agreement party.
    3. For clarification of the agreement terminology used in this 
Report, the parties may refer to the definitions provided in 46 CFR 
535.104. In addition, the following definitions shall apply for purposes 
of this Report: liner movement means the carriage of liner cargo by 
liner operators; liner cargo means cargo carried on liner vessels in a 
liner service; liner operator means a vessel-operating common carrier 
engaged in liner service; liner vessel means a vessel used in a liner 
service; liner service means a definite, advertised schedule of sailings 
at regular intervals; and TEU means a unit of measurement equivalent to 
one 20-foot shipping container. Further, when used in this Report, the 
terms ``entire geographic scope of the agreement'' or ``agreement-wide'' 
refer to the combined U.S. inbound trade and/or the combined U.S. 
outbound trade as such trades apply to the geographic scope of the 
agreement, as opposed to the term ``sub-trade,'' which is defined for 
reporting purposes as the scope of all liner movements between each U.S. 
port range and each foreign country within the scope of the agreement. 
Whether required on a combined trade basis or a sub-trade basis, the 
U.S. inbound trade (or sub-trades) and the U.S. outbound trade (or sub-
trades) shall always be stated separately.

                                Section I

    Section I applies to agreements, identified in 46 CFR 535.702(a)(1), 
that contain the authority to discuss or agree on capacity 
rationalization as defined in 46 CFR 535.104(e). Parties to such 
agreements must complete parts 1 through 3 of this section.

                                 Part 1

    State the full name of the agreement and the agreement number 
assigned by the FMC.

                                Part 2(A)

    1. For the preceding calendar quarter, provide the amount of vessel 
capacity for each party for each of its liner services that is covered 
by the agreement within the entire geographic scope of the agreement, 
stated separately for the U.S. inbound and outbound trades as applicable 
to the geographic scope of the agreement. For purposes of this Report, 
vessel capacity means a party's total commercial liner space on line-
haul vessels, whether operated by it or other parties from whom space is 
obtained, sailing to and/or from the continent of North America for each 
of its liner services that is covered by the agreement.
    2. When 50 percent or more of the total liner cargo carried by all 
the parties in the geographic scope of the agreement during the calendar 
quarter was containerized, the amount(s) of vessel capacity for each 
party shall be reported in TEUs. When 50 percent or more of the total 
liner cargo carried by all the parties in the geographic scope of the 
agreement during the calendar quarter was non-containerized, the 
amount(s) of vessel capacity for each party shall be reported in non-
containerized units of measurement. The unit of measurement used in 
calculating the amounts of non-containerized vessel capacity must be 
specified clearly and consistently applied.

                                Part 2(B)

    For the preceding calendar quarter, provide the percentage of vessel 
capacity utilization for each party for each of its liner services that 
is covered by the agreement within the entire geographic scope of the 
agreement, corresponding to the figures used in part 2(A) of this 
section, stated separately for the U.S. inbound and outbound trades as 
applicable to the geographic scope of the agreement. For purposes of 
this Report, the percentage of vessel capacity utilization means a 
party's total volume of liner cargo, for each of its liner services that 
is covered by the agreement, carried on any vessel space counted under 
part 2(A) of this section, divided by its total vessel capacity as 
defined and derived in part 2(A) of this section, which quotient is 
multiplied by 100.

                                Part 2(C)

    Provide a narrative statement on any significant reductions, to be 
implemented under the agreement, in the amounts of vessel capacity for 
the parties' liner services that are covered by the agreement within the 
entire geographic scope of the agreement. Specifically, explain the 
nature of and the reasons for the significant reduction and its effects 
on the liner service and the total amount of vessel capacity for such 
service that would be subject to the reduction. The narrative statement 
for part 2(C) of this section shall be submitted to the Director, Bureau 
of Trade Analysis, no later than 15 days after a significant reduction 
in the amount of vessel capacity has been agreed upon by the parties but 
prior to the implementation of the actual reduction under the agreement. 
For purposes of this part, a significant reduction refers to the removal 
from a liner service of vessels or vessel space for a fixed, seasonally 
planned, or indefinite period of time. A significant reduction excludes 
instances when vessels may be temporarily repositioned or shifted from 
one service to another, or when vessel space may be temporarily altered, 
or when vessels are removed from a liner service and vessels of similar 
or greater capacity

[[Page 239]]

are substituted. It also excludes operational changes in vessels or 
vessel space that would have little or no impact on the amount of vessel 
capacity offered in a liner service or a trade.

                                Part 2(D)

    Excluding those changes already reported in part 2(C) of this 
section, provide a narrative statement on any other significant changes, 
implemented under the agreement during the preceding calendar quarter, 
in the amounts of vessel capacity for the parties' liner services that 
are covered by the agreement within the entire geographic scope of the 
agreement. Specifically, explain the nature of and the reasons for the 
significant change and its effects on the liner service and the total 
amount of vessel capacity for such service that was subject to the 
change. For purposes of this part, a significant change refers to the 
addition to a liner service of vessels or vessel space for a fixed, 
seasonally planned, or indefinite period of time. A significant change 
excludes instances when vessels were temporarily repositioned or shifted 
from one service to another, or when vessel space was temporarily 
altered, or when vessels were removed from a liner service and vessels 
of similar capacity were substituted. It also excludes operational 
changes in vessels or vessel space that had little or no impact on the 
amount of vessel capacity offered in a liner service or a trade. If no 
significant change was implemented, it shall be noted with the term 
``none'' in response to part 2(D) of this section.

                                 Part 3

    Provide a narrative statement on any significant changes, 
implemented under the agreement during the calendar quarter, in the 
number of vessel calls at a port for the parties' liner services that 
are covered by the agreement within the entire geographic scope of the 
agreement. Specifically, explain the nature of the significant change 
and its effect on the frequency of vessel calls at the port for the 
liner service that was subject to the change. For purposes of this part, 
a significant change refers to an increase or a decrease in the number 
of vessel calls at a port for a fixed, seasonally planned, or indefinite 
period of time. A significant change excludes an incidental or temporary 
alteration in the number of vessel calls at a port, or an operational 
change in vessel calls that had little or no impact on the number of 
vessel calls at a port. If no significant change was implemented, it 
shall be noted with the term ``none'' in response to part 3 of this 
section.

                               Section II

    Section II applies to agreements, identified in 46 CFR 
535.702(a)(2), where the parties to the agreement hold a combined market 
share, based on cargo volume, of 35 percent or more in the entire U.S. 
inbound or outbound geographic scope of the agreement and the agreement 
contains any of the following authorities: a) the discussion of, or 
agreement upon, whether on a binding basis under a common tariff or a 
non-binding basis, any kind of rate or charge; b) the establishment of a 
joint service; c) the pooling or division of cargo traffic, earnings, or 
revenues and/or losses; or d) the discussion of, or agreement on, any 
service contract matter. Parties to such agreements must complete parts 
1 through 6 of this section.

                                 Part 1

    State the full name of the agreement and the agreement number 
assigned by the FMC.

                                 Part 2

    1. For the preceding calendar quarter, provide the market shares of 
all liner operators for the entire geographic scope of the agreement and 
in each sub-trade within the scope of the agreement. A joint service 
shall be treated as a single liner operator, whether it is an agreement 
line or a non-agreement line. Sub-trade is defined as the scope of all 
liner movements between each U.S. port range within the scope of the 
agreement and each foreign country within the scope of the agreement. 
Where the agreement covers both U.S. inbound and outbound liner 
movements, inbound and outbound market shares shall be shown separately.
    2. U.S. port ranges are defined as follows:
    a. Atlantic and Gulf--Includes ports along the eastern seaboard and 
the Gulf of Mexico from the northern boundary of Maine to Brownsville, 
Texas. Also includes all ports bordering upon the Great Lakes and their 
connecting waterways, all ports in the State of New York on the St. 
Lawrence River, and all ports in Puerto Rico and the U.S. Virgin 
Islands.
    b. Pacific--Includes all ports in the States of Alaska, Hawaii, 
California, Oregon, and Washington. Also includes all ports in Guam, 
American Samoa, Northern Marianas, Johnston Island, Midway Island, and 
Wake Island.
    3. An application may be filed for a waiver of the definition of 
``sub-trade'' under the procedures described in 46 CFR 535.705. In any 
such application, the burden shall be on the parties to show that their 
marketing and pricing practices have been done by ascertainable multi-
country regions rather than by individual countries or, in the case of 
the United States, by broader areas than the port ranges defined herein. 
The Commission will also consider whether the alternative definition of 
``sub-trade'' requested by the waiver application is reasonably 
consistent with the definition of ``sub-trade'' applied in the original 
Information Form for the agreement.

[[Page 240]]

    4. The formula for calculating market share in the entire agreement 
scope or in a sub-trade is as follows: The total amount of liner cargo 
carried on each liner operator's liner vessels in the entire agreement 
scope or in the sub-trade during the most recent calendar quarter for 
which complete data are available, divided by the total liner movements 
in the entire agreement scope or in the sub-trade during the same 
calendar quarter, which quotient is multiplied by 100. The market shares 
held by non-agreement lines as well as by agreement lines must be 
provided, stated separately in the format indicated.
    5. If 50 percent or more of the total liner cargo carried by the 
parties in the entire agreement scope during the calendar quarter was 
containerized, only containerized liner movements (measured in TEUs) 
must be used for determining market share. If 50 percent or more of the 
total liner cargo carried by the parties was non-containerized, only 
non-containerized liner movements must be used for determining market 
share. The unit of measurement used in calculating amounts of non-
containerized cargo must be specified clearly and applied consistently.

                                 Part 3

    1. For the preceding calendar quarter, provide each party's total 
liner revenues in the entire geographic scope of the agreement, total 
liner cargo carried in the entire geographic scope of the agreement, and 
average revenue. For purposes of this Report, total liner revenues means 
the total revenues, in U.S. dollars, of each party corresponding to its 
total cargo carried for its liner services that fall under the 
agreement, inclusive of all ocean freight charges, whether assessed on a 
port-to-port basis or a through intermodal basis; accessorial charges; 
surcharges; and charges for inland cargo carriage. Average revenue shall 
be calculated as the quotient of each party's total liner revenues in 
the entire geographic scope divided by its total cargo carried in the 
entire geographic scope.
    2. When 50 percent or more of the total liner cargo carried by all 
the parties in the geographic scope of the agreement during the calendar 
quarter was containerized, each party shall report only its total 
carryings of containerized liner cargo (measured in TEUs) during the 
calendar quarter, total revenues generated by its carriage of 
containerized liner cargo, and average revenue per TEU. When 50 percent 
or more of the total liner cargo carried by all the parties in the 
geographic scope of the agreement during the calendar quarter was non-
containerized, each party shall report only its total carryings of non-
containerized liner cargo during the calendar quarter (specifying the 
unit of measurement used), total revenues generated by its carriage of 
non-containerized liner cargo, and average revenue per unit of 
measurement. When the agreement covers both U.S. inbound and outbound 
liner movements, inbound and outbound data shall be stated separately.

                                Part 4(A)

    For the preceding calendar quarter, provide a list, for the entire 
geographic scope of the agreement, of the top 10 liner commodities 
(including commodities not subject to tariff publication) carried by all 
the parties for their liner services that fall under the agreement. For 
purposes of this Report, commodities shall be identified at the 4-digit 
level of customarily used commodity coding schedules. When 50 percent or 
more of the total liner cargo carried by all the parties in the 
geographic scope of the agreement during the calendar quarter was 
containerized, this list shall include only containerized commodities. 
When 50 percent or more of the total liner cargo carried by all the 
parties in the geographic scope of the agreement during the calendar 
quarter was non-containerized, this list shall include only non-
containerized commodities. When the agreement covers both U.S. inbound 
and outbound liner movements, inbound and outbound data shall be stated 
separately.

                                Part 4(B)

    For the preceding calendar quarter, provide the cargo volume and 
revenue results for each party for each of the major commodities listed 
in part 4(A) of this section, corresponding to the same unit of 
measurement used. For purposes of this Report, revenue results means the 
revenues, in U.S. dollars, earned by each party on the cargo volume of 
each major commodity listed in part 4(A) of this section, inclusive of 
all ocean freight charges, whether assessed on a port-to-port basis or a 
through intermodal basis; accessorial charges; surcharges; and charges 
for inland cargo carriage. If a party has no cargo volume and revenue 
results for a commodity listed in part 4(A) of this section, it shall be 
noted by using a zero for that party in response to part 4(B) of this 
section.

                                Part 5(A)

    For the preceding calendar quarter, provide the amount of vessel 
capacity for each party for each of its liner services that falls under 
the agreement within the entire geographic scope of the agreement, 
stated separately for the U.S. inbound and outbound trades as applicable 
to the geographic scope of the agreement. For purposes of this Report, 
vessel capacity means a party's total commercial liner space on line-
haul vessels, whether operated by it or other parties from whom space is 
obtained, sailing to and/or from the continent of North America for

[[Page 241]]

each of its liner services that falls under the agreement. When 50 
percent or more of the total liner cargo carried by all the parties in 
the geographic scope of the agreement during the calendar quarter was 
containerized, the amount(s) of vessel capacity for each party shall be 
reported in TEUs. When 50 percent or more of the total liner cargo 
carried by all the parties in the geographic scope of the agreement 
during the calendar quarter was non-containerized, the amount(s) of 
vessel capacity for each party shall be reported in non-containerized 
units of measurement. The unit of measurement used in calculating the 
amounts of non-containerized vessel capacity must be specified clearly 
and consistently applied.

                                Part 5(B)

    For the preceding calendar quarter, provide the percentage of vessel 
capacity utilization for each party for each of its liner services that 
falls under the agreement within the entire geographic scope of the 
agreement, corresponding to the figures used in part 5(A) of this 
section, stated separately for the U.S. inbound and outbound trades as 
applicable to the geographic scope of the agreement. For purposes of 
this Report, the percentage of vessel capacity utilization means a 
party's total volume of liner cargo, for each of its liner services that 
falls under the agreement, carried on any vessel space counted under 
part 5(A) of this section, divided by its total vessel capacity as 
defined and derived in part 5(A) of this section, which quotient is 
multiplied by 100.

                                Part 5(C)

    Provide a narrative statement on any significant changes in the 
amount of vessel capacity that occurred during the preceding calendar 
quarter for the parties' liner services that fall under the agreement 
within the entire geographic scope of the agreement. Specifically, 
explain the nature of and the reasons for the significant change and its 
effects on the liner service and the total amount of vessel capacity for 
such service that was subject to the change. For purposes of this part, 
a significant change refers to the removal from or addition to a liner 
service of vessels or vessel space for a fixed, seasonally planned, or 
indefinite period of time. A significant change would exclude instances 
when vessels were temporarily repositioned or shifted from one service 
to another, or when vessel space was temporarily altered, or when 
vessels were removed from a liner service and vessels of similar 
capacity were substituted. It also excludes operational changes in 
vessels and vessel space that had little or no impact on the amount of 
vessel capacity offered in a liner service or a trade. If no significant 
change occurred during the calendar quarter, it shall be noted with the 
term ``none'' in response to part 5(C) of this section.

                                 Part 6

    Provide a narrative statement on any significant changes in the 
number of vessel calls at a port that occurred during the preceding 
calendar quarter for the parties' liner services that fall under the 
agreement within the entire geographic scope of the agreement. 
Specifically, explain the nature of the significant change and its 
effect on the frequency of vessel calls at the port for the liner 
service that was subject to the change. For purposes of this part, a 
significant change refers to an increase or a decrease in the number of 
vessel calls at a port for a fixed, seasonally planned, or indefinite 
period of time. A significant change excludes an incidental or temporary 
alteration in the number of vessel calls at a port, or an operational 
change in vessel calls that had little or no impact on the number of 
vessel calls at a port. If no significant change occurred during the 
calendar quarter, it shall be noted with the term ``none'' in response 
to part 6 of this section.

                               Section III

    Section III applies to all agreements identified in 46 CFR 
535.702(a). Parties to such agreements must complete all items in part 1 
of this section.

                                Part 1(A)

    State the name, title, address, telephone and fax numbers, and 
electronic mail address of a person the Commission may contact regarding 
the Monitoring Report and any information provided therein.

                                Part 1(B)

    A representative of the parties shall sign the Monitoring Report and 
certify that the information in the Report and all attachments and 
appendices are, to the best of his or her knowledge, true, correct and 
complete. The representative also shall indicate his or her relationship 
with the parties to the agreement.

             Privacy Act and Paperwork Reduction Act Notice

    1. The collection of this information is authorized generally by 
section 15 of the Shipping Act of 1984 (46 U.S.C. 40104). The submission 
of this form is mandatory for parties to agreements that contain certain 
authorities.
    2. You are not required to provide information requested on a form 
that is subject to the Paperwork Reduction Act unless the form displays 
a valid OMB control number. The valid control number for this 
information collection is 3072-0045.
    3. The time needed to complete and submit this form will vary 
depending on individual

[[Page 242]]

circumstances. The total estimated average time to complete this form is 
about 63.5 hours. This estimate includes reading the instructions, 
collecting necessary data, and compiling that data.
    4. If you have any comments concerning the accuracy of the above 
estimate or have any suggestions for simplifying the form, please 
contact Secretary, Federal Maritime Commission, 800 North Capitol 
Street, NW., Washington, DC 20573-0001; or by e-mail secretary@fmc.gov.

FMC Form-151                                   OMB Control No. 3072-0045
                       FEDERAL MARITIME COMMISSION
                          MONITORING REPORT FOR
            AGREEMENTS BETWEEN OR AMONG OCEAN COMMON CARRIERS
 

                                Section I

                                 Part 1

 Agreement Name:________________________________________________________

 FMC Number:____________________________________________________________

                 Part 2 Vessel Capacity and Utilization

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                            (A) Vessel
                                          capacity [TEUs        (B)
                                             or other       Utilization
                                              units]         [percent]
 
Carrier A [Name]:
    Liner Service 1 [Name]..............          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . ...........................
Carrier B:
    Liner Service 1.....................          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Etc. . . .
 

 (C) Narrative statement on significant reductions in vessel capacity to 
be implemented (submit statement no later than 15 days after a reduction 
has been agreed upon but prior to the implementation of the reduction):_

________________________________________________________________________

 (D) Narrative statement on other significant changes in vessel capacity 
implemented during the calendar quarter:________________________________

________________________________________________________________________

                           Part 3 Vessel Calls

 Narrative statement on significant changes in vessel calls implemented 
during the calendar quarter:____________________________________________

________________________________________________________________________

                               Section II

                                 Part 1

 Agreement Name:________________________________________________________

 FMC Number:____________________________________________________________

                           Part 2 Market Share

Agreement-Wide Trade (or Sub-Trade): U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                          TEUs [or other
                                              units]          Percent
 
Agreement Market Share:
    Line A [Name].......................           X,XXX              XX
    Line B..............................           X,XXX              XX
    Line C..............................           X,XXX              XX
    Etc. . . .
        Total Agreement.................           X,XXX              XX
Non-Agreement Market Share:
    Line X..............................           X,XXX              XX

[[Page 243]]

 
    Line Y..............................           X,XXX              XX
    Line Z..............................           X,XXX              XX
    Etc. . . .
        Total Non-Agreement.............           X,XXX              XX
Total Trade [or Sub-Trade]..............           X,XXX             100
 

                  Part 3 Total Liner Cargo and Revenues

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                                                                  TEUs [or other      Average
                             [Name]                               Total revenues      units]          revenue
 
Carrier A.......................................................               $           X,XXX               $
Carrier B.......................................................               $           X,XXX               $
Carrier C.......................................................               $           X,XXX               $
    Etc. . . .
 

                      Part 4 Top Liner Commodities

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                             [Name]                                  Carrier A       Carrier B       Etc. . .
 
Commodity 1 [Name and 4-Digit Code]:
    TEUs [or other units].......................................           X,XXX           X,XXX
    Revenues....................................................               $               $
Commodity 2:
    TEUs........................................................           X,XXX           X,XXX
    Revenues....................................................               $               $
Etc. . . .
 

                 Part 5 Vessel Capacity and Utilization

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                            (A) Vessel
                                          capacity [TEUs        (B)
                                             or other       Utilization
                                              units]         [percent]
 
Carrier A [Name]:
    Liner Service 1 [Name]..............          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . ...........................
Carrier B:
    Liner Service 1.....................          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Etc. . . .
 

 (C) Narrative statement on significant changes in vessel capacity that 
occurred during the calendar quarter:___________________________________

________________________________________________________________________

                           Part 6 Vessel Calls

 Narrative statement on significant changes in vessel calls that 
occurred during the calendar quarter:___________________________________

________________________________________________________________________

________________________________________________________________________

[[Page 244]]

                               Section III

                 Part 1 Contact Person and Certification

(A) Person(s) To Contact Regarding Monitoring Report.

 (1) Name_______________________________________________________________

 (2) Title______________________________________________________________

 (3) Firm Name and Business_____________________________________________

 (4) Business Telephone Number__________________________________________

 (5) Fax Number_________________________________________________________

 (6) E-Mail Address_____________________________________________________

(B) Certification.

This Monitoring Report, together with any and all appendices and 
attachments thereto, was prepared and assembled in accordance with 
instructions issued by the Federal Maritime Commission. The information 
is, to the best of my knowledge, true, correct, and complete.

 Name (please print or type)____________________________________________

 Title__________________________________________________________________

 Relationship with parties to agreement_________________________________

 Signature______________________________________________________________

 Date___________________________________________________________________

[69 FR 64414, Nov. 4, 2004, as amended at 74 FR 50730, Oct. 1, 2009]



PART 540_PASSENGER VESSEL FINANCIAL RESPONSIBILITY--Table of Contents



 Subpart A_Proof of Financial Responsibility, Bonding and Certification 
   of Financial Responsibility for Indemnification of Passengers for 
                    Nonperformance of Transportation

Sec.
540.1 Scope.
540.2 Definitions.
540.3 Proof of financial responsibility, when required.
540.4 Procedure for establishing financial responsibility.
540.5 Insurance, guaranties, and escrow accounts.
540.6 Surety bonds.
540.7 Evidence of financial responsibility.
540.8 Denial, revocation, suspension, or modification.
540.9 Miscellaneous.

Form FMC-132A to Subpart A
Form FMC-133A to Subpart A
Appendix A to Subpart A--Example of Escrow Agreement for Use Under 46 
          CFR 540.5(b)

 Subpart B_Proof of Financial Responsibility, Bonding and Certification 
  of Financial Responsibility To Meet Liability Incurred for Death or 
            Injury to Passengers or Other Persons on Voyages

540.20 Scope.
540.21 Definitions.
540.22 Proof of financial responsibility, when required.
540.23 Procedure for establishing financial responsibility.
540.24 Insurance, surety bonds, self-insurance, guaranties, and escrow 
          accounts.
540.25 Evidence of financial responsibility.
540.26 Denial, revocation, suspension, or modification.
540.27 Miscellaneous.

Form FMC-132B to Subpart B
Form FMC-133B to Subpart B

                            Subpart C_General

540.91 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 5 U.S.C. 552, 553; 31 U.S.C. 9701; 46 U.S.C. 305, 44101-
44106.

    Source: 49 FR 36313, Sept. 14, 1984, unless otherwise noted.



 Subpart A_Proof of Financial Responsibility, Bonding and Certification 
   of Financial Responsibility for Indemnification of Passengers for 
                    Nonperformance of Transportation



Sec. 540.1  Scope.

    (a) The regulations contained in this subpart set forth the 
procedures whereby persons in the United States who arrange, offer, 
advertise or provide passage on a vessel having berth or stateroom 
accommodations for 50 or more passengers and embarking passengers at 
U.S. ports shall establish their financial responsibility or, in lieu 
thereof, file a bond or other security for obligations under the terms 
of ticket contracts to indemnify passengers for nonperformance of 
transportation to which they would be entitled. Included also are the 
qualifications required by the Commission for issuance of a Certificate 
(Performance) and the basis for the denial, revocation, modification, or 
suspension of such Certificates.

[[Page 245]]

    (b) Failure to comply with this part may result in denial of an 
application for a certificate. Vessels operating without the proper 
certificate may be denied clearance by the Department of Homeland 
Security and their owners may also be subject to a civil penalty of not 
more than $5,000 in addition to a civil penalty of $200 for each passage 
sold, such penalties to be assessed by the Federal Maritime Commission 
(46 U.S.C. 44101-44106, 60105).

[49 FR 36313, Sept. 14, 1984, as amended at 74 FR 50730, Oct. 1, 2009; 
78 FR 13277, Feb. 27, 2013]



Sec. 540.2  Definitions.

    As used in this subpart, the following terms shall have the 
following meanings:
    (a) Person includes individuals, limited liability companies, 
corporations, partnerships, associations, and other legal entities 
existing under or authorized by the laws of the United States or any 
State thereof or the District of Columbia, the Commonwealth of Puerto 
Rico, the Virgin Islands or any territory or possession of the United 
States, or the laws of any foreign country.
    (b) Vessel means any commercial vessel having berth or stateroom 
accommodations for 50 or more passengers and embarking passengers at 
U.S. ports.
    (c) Commission means the Federal Maritime Commission.
    (d) United States includes the Commonwealth of Puerto Rico, the 
Virgin Islands or any territory or possession of the United States.
    (e) Berth or stateroom accommodation or passenger accommodations 
includes all temporary and all permanent passenger sleeping facilities.
    (f) Certificate (Performance) means a Certificate of Financial 
Responsibility for Indemnification of Passengers for Nonperformance of 
Transportation issued pursuant to this subpart.
    (g) Passenger means any person who is to embark on a vessel at any 
U.S. port and who has paid any amount for a ticket contract entitling 
him to water transportation.
    (h) Passenger revenue means those monies wherever paid by passengers 
who are to embark at any U.S. port for water transportation and all 
other accommodations, services and facilities relating thereto.
    (i) Unearned passenger revenue means that passenger revenue received 
for water transportation and all other accommodations, services, and 
facilities relating thereto not yet performed; this includes port fees 
and taxes paid, but excludes such items as airfare, hotel 
accommodations, and tour excursions.
    (j) Insurer means any insurance company, underwriter, corporation, 
or association or underwriters, ship owners' protection and indemnity 
association, or other insurer acceptable to the Commission.
    (k) Evidence of insurance means a policy, certificate of insurance, 
cover note, or other evidence of coverage acceptable to the Commission.
    (l) Whole-ship charter means an arrangement between a passenger 
vessel operator and a corporate or institutional entity:
    (1) Which provides for the purchase of all the passenger 
accommodations on a vessel for a particular voyage or series of voyages; 
and
    (2) Whereby the involved corporate or institutional entity provides 
such accommodations to the ultimate passengers free of charge and such 
accommodations are not resold to the public.

[49 FR 36313, Sept. 14, 1984, as amended at 57 FR 41891, Sept. 14, 1992; 
78 FR 13278, Feb. 27, 2013]



Sec. 540.3  Proof of financial responsibility, when required.

    No person in the United States may arrange, offer, advertise or 
provide passage on a vessel unless a Certificate (Performance) has been 
issued to or covers such person.



Sec. 540.4  Procedure for establishing financial responsibility.

    (a) In order to comply with section 3 of Public Law 89-777 (46 
U.S.C. 44101-44102, 44104-44106) enacted November 6, 1966, there must be 
filed with the Federal Maritime Commission an application on Form FMC-
131 for a Certificate of Financial Responsibility for Indemnification of 
Passengers for Nonperformance of Transportation. Copies of Form FMC-131 
may be obtained from the Commission's Web site at http://

[[Page 246]]

www.fmc.gov, or from the Bureau of Certification and Licensing, Federal 
Maritime Commission, Washington, DC 20573.
    (b) An application for a Certificate (Performance) shall be filed 
with the Bureau of Certification and Licensing, Federal Maritime 
Commission, by the vessel owner or charterer at least 60 days in advance 
of the arranging, offering, advertising, or providing of any water 
transportation or tickets in connection therewith except that any person 
other than the owner or charterer who arranges, offers, advertises, or 
provides passage on a vessel may apply for a Certificate (Performance). 
Late filing of the application will be permitted without penalty only 
for good cause shown.
    (c) All applications and evidence required to be filed with the 
Commission shall be in English, and any monetary terms shall be 
expressed in terms of U.S. currency.
    (d) The Commission shall have the privilege of verifying any 
statements made or any evidence submitted under the rules of this 
subpart.
    (e) An application for a Certificate (Performance), excluding an 
application for the addition or substitution of a vessel to the 
applicant's fleet, shall be accompanied by a filing fee remittance of 
$2,767. An application for a Certificate (Performance) for the addition 
or substitution of a vessel to the applicant's fleet shall be 
accompanied by a filing fee remittance of $1,382. Administrative 
changes, such as the renaming of a vessel will not incur any additional 
fees.
    (f) The application shall be signed by a duly authorized officer or 
representative of the applicant with a copy of evidence of his or her 
authority.
    (g) In the event of any material change in the facts as reflected in 
the application, an amendment to the application shall be filed no later 
than fifteen (15) days following such change. For the purpose of this 
subpart, a material change shall be one which:
    (1) Results in a decrease in the amount submitted to establish 
financial responsibility to a level below that required to be maintained 
under the rules of this subpart, or
    (2) Requires that the amount to be maintained be increased above the 
amount submitted to establish financial responsibility.
    (h) Notice of the application for issuance, denial, revocation, 
suspension, or modification of any such Certificate will be published on 
the Commission's web site at http://www.fmc.gov.

[78 FR 13278, Feb. 27, 2013]



Sec. 540.5  Insurance, guaranties, and escrow accounts.

    Except as provided in Sec. 540.9(j), the amount of coverage 
required under this section and Sec. 540.6(b) shall be in an amount 
determined by the Commission to be no less than 110 percent of the 
unearned passenger revenue of the applicant on the date within the two 
fiscal years immediately prior to the filing of the application which 
reflects the greatest amount of unearned passenger revenue. The 
Commission, for good cause shown, may consider a time period other than 
the previous two-fiscal-year requirement in this section or other 
methods acceptable to the Commission to determine the amount of coverage 
required. Evidence of adequate financial responsibility for the purposes 
of this subpart may be established by one or a combination (including 
Sec. 540.6 Surety Bonds) of the following methods:
    (a) Filing with the Commission evidence of insurance, issued by an 
insurer, providing coverage for indemnification of passengers in the 
event of the nonperformance of water transportation.
    (1) Termination or cancellation of the evidence of insurance, 
whether by the assured or by the insurer, and whether for nonpayment of 
premiums, calls or assessments or for other cause, shall not be 
effected: (i) Until notice in writing has been given to the assured or 
to the insurer and to the Bureau of Certification and Licensing at its 
office in Washington, DC 20573, by certified mail or courier service, 
(ii) until after 30 days expire from the date notice is actually 
received by the Commission, or until after the Commission revokes the 
Certificate (Performance), whichever occurs first. Notice of termination

[[Page 247]]

or cancellation to the assured or insurer shall be simultaneous to such 
notice given to the Commission. The insurer shall remain liable for 
claims covered by said evidence of insurance arising by virtue of an 
event which had occurred prior to the effective date of said termination 
or cancellation. No such termination or cancellation shall become 
effective while a voyage is in progress.
    (2) The insolvency or bankruptcy of the assured shall not constitute 
a defense to the insurer as to claims included in said evidence of 
insurance and in the event of said insolvency or bankruptcy, the insurer 
agrees to pay any unsatisfied final judgments obtained on such claims.
    (3) No insurance shall be acceptable under these rules which 
restricts the liability of the insurer where privity of the owner or 
charterer has been shown to exist.
    (4) Paragraphs (a)(1) through (a)(3) of this section shall apply to 
the guaranty as specified in paragraph (c) of this section.
    (b) Filing with the Commission evidence of an escrow account, 
acceptable to the Commission, for indemnification of passengers in the 
event of nonperformance of water transportation. Parties filing escrow 
agreements for Commission approval may execute such agreements in the 
form set forth in appendix A of subpart A of this part.
    (c) Filing with the Commission a guaranty on Form FMC-133A, by a 
Protection and Indemnity Association with established assets, reserves 
and reinsurance acceptable to the Commission, for indemnification of 
passengers in the event of nonperformance of water transportation. The 
requirements of Form FMC-133A, however, may be amended by the Commission 
in a particular case for good cause. Copies of Form FMC-133A may be 
obtained from the Commission's Web site at http://www.fmc.gov or from 
the Bureau of Certification and Licensing.
    (d) Revenues derived from whole-ship charters, as defined in Sec. 
540.2(l), may be exempted from consideration as unearned passenger 
revenues, on condition that, in the case of a new operator or within 30 
days of the execution of the whole-ship charter if the operator has a 
Performance Certificate for the vessel in question: (1) A certified true 
copy of the contract or charter is furnished with the application; (2) 
The chartering party attests that it will redistribute the vessel's 
passenger accommodations without charge; and (3) A document executed by 
the chartering party's Chief Executive Officer or other responsible 
corporate officer is submitted by which the chartering party 
specifically acknowledges that its rights to indemnification under 
section 3 of Public Law 89-777 (46 U.S.C. 44101-44102, 44104-44106) may 
be affected by the reduction in section 3, Public Law 89-777, financial 
responsibility coverage attributable to the exclusion of such funds from 
the operator's UPR.

[49 FR 36313, Sept. 14, 1984, as amended at 55 FR 1824, Jan. 19, 1990; 
57 FR 41891, Sept. 14, 1992; 57 FR 62480, Dec. 31, 1992; 67 FR 44776, 
July 5, 2002; 74 FR 50730, Oct. 1, 2009; 78 FR 13278, Feb. 27, 2013]



Sec. 540.6  Surety bonds.

    (a) Where financial responsibility is not established under Sec. 
540.5, a surety bond shall be filed on Form FMC-132A. Such surety bond 
shall be issued by a bonding company authorized to do business in the 
United States and acceptable to the Commission for indemnification of 
passengers in the event of nonperformance of water transportation. The 
requirements of Form FMC-132A, however, may be amended by the Commission 
in a particular case for good cause. Copies of Form FMC-132A may be 
obtained from the Commission's Web site at http://www.fmc.gov or from 
the Bureau of Certification and Licensing.
    (b) In the case of a surety bond which is to cover all passenger 
operations of the applicant subject to these rules, such bond shall be 
in an amount calculated as in the introductory text of Sec. 540.5.
    (c) In the case of a surety bond which is to cover an individual 
voyage, such bond shall be in an amount determined by the Commission to 
equal the gross passenger revenue for that voyage.
    (d) The liability of the surety under the rules of this subpart to 
any passenger shall not exceed the amount paid by any such passenger, 
except

[[Page 248]]

that, no such bond shall be terminated while a voyage is in progress.

[49 FR 36313, Sept. 14, 1984, as amended at 55 FR 1824, Jan. 19, 1990; 
78 FR 13278, Feb. 27, 2013]



Sec. 540.7  Evidence of financial responsibility.

    Where satisfactory proof of financial responsibility has been 
established:
    (a) A Certificate (Performance) covering specified vessels shall be 
issued evidencing the Commission's finding of adequate financial 
responsibility to indemnify passengers for nonperformance of water 
transportation.
    (b) The period covered by the Certificate (Performance) shall be 
five (5) years, unless another termination date has been specified 
thereon.

[78 FR 13278, Feb. 27, 2013]



Sec. 540.8  Denial, revocation, suspension, or modification.

    (a) Prior to the denial, revocation, suspension, or modification of 
a Certificate (Performance), the Commission shall notify the applicant 
of its intention to deny, revoke, suspend, or modify and shall include 
with the notice the reason(s) for such action. If the applicant, within 
20 days after the receipt of such notice, requests a hearing to show 
that the evidence of financial responsibility filed with the Commission 
does meet the rules of this subpart, such hearing shall be granted by 
the Commission. Regardless of a hearing, a Certificate (Performance) 
shall become null and void upon cancellation or termination of the 
surety bond, evidence of insurance, guaranty, or escrow account.
    (b) A Certificate (Performance) may be denied, revoked, suspended, 
or modified for any of the following reasons:
    (1) Making any willfully false statement to the Commission in 
connection with an application for a Certificate (Performance);
    (2) Circumstances whereby the party does not qualify as financially 
responsible in accordance with the requirements of the Commission;
    (3) Failure to comply with or respond to lawful inquiries, requests 
for information, rules, regulations, or orders of the Commission 
pursuant to the rules of this subpart.
    (c) If the applicant, within 20 days after notice of the proposed 
denial, revocation, suspension, or modification under paragraph (b) of 
this section, requests a hearing to show that such denial, revocation, 
suspension, or modification should not take place, such hearing shall be 
granted by the Commission.

[49 FR 36313, Sept. 14, 1984, as amended at 78 FR 13278, Feb. 27, 2013]



Sec. 540.9  Miscellaneous.

    (a) If any evidence filed with the application does not comply with 
the requirements of this subpart, or for any reason fails to provide 
adequate or satisfactory protection to the public, the Commission will 
notify the applicant stating the deficiencies thereof.
    (b) Any financial evidence submitted to the Commission under the 
rules of this subpart shall be written in the full and correct name of 
the person to whom the Certificate (Performance) is to be issued, and in 
case of a partnership, all partners shall be named.
    (c) The Commission's bond (Form FMC-132A), guaranty (Form FMC-133A), 
and application (Form FMC-131) forms may be obtained from the 
Commission's Web site at http://www.fmc.gov or from the Bureau of 
Certification and Licensing at its office in Washington, DC 20573.
    (d) Any securities or assets accepted by the Commission (from 
applicants, insurers, guarantors, escrow agents, or others) under the 
rules of this subpart must be physically located in the United States.
    (e) Each applicant, insurer, escrow agent and guarantor shall 
furnish a written designation of a person in the United States as legal 
agent for service of process for the purposes of the rules of this 
subpart. Such designation must be acknowledged, in writing, by the 
designee and filed with the Commission. In any instance in which the 
designated agent cannot be served because of death, disability, or 
unavailability, the Secretary, Federal Maritime Commission, will be 
deemed to be the agent for service of process. A party serving the 
Secretary in accordance with the above provision must also serve the 
certificant, insurer, escrow agent, or

[[Page 249]]

guarantor, as the case may be, by certified mail or courier service at 
the last known address of them on file with the Commission.
    (f) [Reserved]
    (g) Financial data filed in connection with the rules of this 
subpart shall be confidential except in instances where information 
becomes relevant in connection with hearings which may be requested by 
applicant pursuant to Sec. 540.8 (a) or (b).
    (h) Every person who has been issued a Certificate (Performance) 
must submit to the Commission a semi-annual statement of any changes 
with respect to the information contained in the application or 
documents submitted in support thereof or a statement that no changes 
have occurred. Negative statements are required to indicate no change. 
These statements must cover the 6-month period of January through June 
and July through December, and include a statement of the highest 
unearned passenger vessel revenue accrued for each month in the 6-month 
reporting period. Such statements will be due within 30 days after the 
close of every such 6-month period. The reports required by this 
paragraph shall be submitted to the Bureau of Certification and 
Licensing at its office in Washington, DC 20573 by certified mail, 
courier service, or electronic submission.
    (i) [Reserved]
    (j) The amount of: the insurance as specified in Sec. 540.5(a), the 
escrow account as specified in Sec. 540.5(b), the guaranty as specified 
in Sec. 540.5(c), or the surety bond as specified in Sec. 540.6 shall 
not be required to exceed $15 million for one year after April 2, 2013. 
Twelve (12) months after April 2, 2013, the amount shall not exceed $22 
million, and twenty four (24) months after April 2, 2013, the amount 
shall not exceed $30 million. Every two years, on the anniversary after 
the cap on required financial responsibility reaches $30 million, the 
cap shall automatically adjust to the nearest $1 million based on 
changes as reflected in the U.S. Bureau of Labor Statistics' Consumer 
Price Index. The Bureau of Certification and Licensing will determine 
the amount of each adjustment and transmit that information to the 
Secretary of the Federal Maritime Commission for publication on the 
Commission's Web site (www.fmc.gov) and in the Federal Register with an 
effective date that is no less than sixty (60) days after Federal 
Register publication.
    (k) Every person in whose name a Certificate (Performance) has been 
issued shall be deemed to be responsible for any unearned passage money 
or deposits held by its agents or any other person authorized by the 
certificant to sell the certificant's tickets. Certificants shall 
promptly notify the Commission of any arrangements, including charters 
and subcharters, made by it or its agent with any person pursuant to 
which the certificant does not assume responsibility for all passenger 
fares and deposits collected by such person or organization and held by 
such person or organization as deposits or payment for services to be 
performed by the certificant. If responsibility is not assumed by the 
certificant, the certificant also must inform such person or 
organization of the certification requirements of Public Law 89-777 and 
not permit use of its vessel, name or tickets in any manner unless and 
until such person or organization has obtained the requisite Certificate 
(Performance) from the Commission. Failure to follow the procedures in 
this paragraph means the certificant shall retain full financial 
responsibility for indemnification of passengers for nonperformance of 
the transportation.
    (l) Requests to substitute alternative financial responsibility. (1) 
A certificant whose unearned passenger revenue at no time for the two 
immediately prior fiscal years has exceeded 150% of the required cap may 
submit a request to the Director, Bureau of Certification and Licensing, 
to substitute alternative forms of financial protection to evidence the 
financial responsibility as otherwise provided in this part.
    (2) The Commission will consider such requests on a case-by-case 
basis.
    (3) The request must include copies of the requesting PVO's most 
recently available annual and quarterly financial and income statements. 
Other documents and information in support of its request may also be 
submitted.

[[Page 250]]

    (4) For requests based upon the already existing protections 
available to credit card purchases of passenger vessel transportation, 
the requesting PVO must supply the following information for the most 
recent twelve months preceding the request: Total deposits and payments 
received for passenger vessel transportation; Credit card receipt 
totals; Copy of the PVO's policy(ies) governing payments by passengers 
(i.e., deposits and the number of days prior to sailing the passenger 
must make final payment).
    (5) In determining whether and to what level to reduce the required 
amount, the Commission may consider the extent to which other statutory 
requirements provide relevant protections, the certificant's financial 
data, and other specific facts and circumstances.
    (6) For PVOs with payment policies that provide for final payment 
for the passenger vessel transportation no later than 60 days before the 
vessel's sailing date, requests based upon credit card receipts may be 
granted by the Commission permitting a reduction in the financial 
responsibility otherwise required under this Part. The amount of such a 
reduction will be established by determining the proportion that the 
PVO's total credit card receipts bears to its total receipts and 
applying one half of that percentage to the PVO's highest two-year UPR.
    (7) The Bureau of Certification and Licensing may request additional 
information as may assist it in considering the request.
    (8) Where a request is granted, the alternative financial 
responsibility shall remain in effect until the PVO's Certificate 
(Performance) expires under Sec. 540.7(b) or until the Director, Bureau 
of Certification and Licensing determines otherwise based upon changing 
information pursuant to this paragraph or paragraph (l)(5) of this 
section. Additional information may be requested at any time by the 
Commission or BCL from a PVO whose request under this section has been 
granted.

[49 FR 36313, Sept. 14, 1984, as amended at 55 FR 34568, Aug. 23, 1990; 
78 FR 13278, Feb. 27, 2013]



               Sec. Form FMC-132A to Subpart A of Part 540

                              FORM FMC-132A

                       FEDERAL MARITIME COMMISSION

               Passenger Vessel Surety Bond (Performance)

 Surety Co. Bond No.____________________________________________________

 FMC Certificate No.____________________________________________________

    Know all men by these presents, that we -------------------- (Name 
of applicant), of ---------------- (City), ---------------- (State and 
country), as Principal (hereinafter called Principal), and ------------
---- (Name of surety), a company created and existing under the laws of 
------------ (State and country) and authorized to do business in the 
United States as Surety (hereinafter called Surety) are held and firmly 
bound unto the United States of America in the penal sum of ------------
----, for which payment, well and truly to be made, we bind ourselves 
and our heirs, executors, administrators, successors, and assigns, 
jointly and severally, firmly by these presents. Whereas the Principal 
intends to become a holder of a Certificate (Performance) pursuant to 
the provisions of subpart A of part 540 of title 46, Code of Federal 
Regulations and has elected to file with the Federal Maritime Commission 
such a bond to insure financial responsibility and the supplying 
transportation and other services subject to subpart A of part 540 of 
title 46, Code of Federal Regulations, in accordance with the ticket 
contract between the Principal and the passenger, and
    Whereas this bond is written to assure compliance by the Principal 
as an authorized holder of a Certificate (Performance) pursuant to 
subpart A of part 540 of title 46, Code of Federal Regulations, and 
shall inure to the benefit of any and all passengers to whom the 
Principal may be held legally liable for any of the damages herein 
described. Now, therefore, the condition of this obligation is such that 
if the Principal shall pay or cause to be paid to passengers any sum or 
sums for which the Principal may be held legally liable by reason of the 
Principal's failure faithfully to provide such transportation and other 
accommodations and services in accordance

[[Page 251]]

with the ticket contract made by the Principal and the passenger while 
this bond is in effect for the supplying of transportation and other 
services pursuant to and in accordance with the provisions of subpart A 
of part 540 of title 46, Code of Federal Regulations, then this 
obligation shall be void, otherwise, to remain in full force and effect.
    The liability of the Surety with respect to any passenger shall not 
exceed the passage price paid by or on behalf of such passenger. The 
liability of the Surety shall not be discharged by any payment or 
succession of payments hereunder, unless and until such payment or 
payments shall amount in the aggregate to the penalty of the bond, but 
in no event shall the Surety's obligation hereunder exceed the amount of 
said penalty. The Surety agrees to furnish written notice to the Federal 
Maritime Commission forthwith of all suits filed, judgments rendered, 
and payments made by said Surety under this bond.
    This bond is effective the ------------ day of ----------------, 
20----, 12:01 a.m., standard time at the address of the Principal as 
stated herein and shall continue in force until terminated as 
hereinafter provided. The Principal or the Surety may at any time 
terminate this bond by written notice sent by certified mail, courier 
service, or other electronic means such as email and fax to the other 
and to the Federal Maritime Commission at its office in Washington, DC, 
such termination to become effective thirty (30) days after actual 
receipt of said notice by the Commission, except that no such 
termination shall become effective while a voyage is in progress. The 
Surety shall not be liable hereunder for any refunds due under ticket 
contracts made by the Principal for the supplying of transportation and 
other services after the termination of this bond as herein provided, 
but such termination shall not affect the liability of the Surety 
hereunder for refunds arising from ticket contracts made by the 
Principal for the supplying of transportation and other services prior 
to the date such termination becomes effective.
    The underwriting Surety will promptly notify the Director, Bureau of 
Certification and Licensing, Federal Maritime Commission, Washington, DC 
20573, of any claim(s) or disbursements against this bond.
    In witness whereof, the said Principal and Surety have executed this 
instrument on ------------ day of ----------------, 20----.

                                PRINCIPAL

 Name___________________________________________________________________

 By_____________________________________________________________________
     (Signature and title)

 Witness________________________________________________________________

                                 SURETY

[SEAL]

 Name___________________________________________________________________

 By_____________________________________________________________________
     (Signature and title)

 Witness________________________________________________________________

    Only corporations or associations of individual insurers may qualify 
to act as surety, and they must establish to the satisfaction of the 
Federal Maritime Commission legal authority to assume the obligations of 
surety and financial ability to discharge them.

[78 FR 13279, Feb. 27, 2013]



               Sec. Form FMC-133A to Subpart A of Part 540

                              FORM FMC-133A

                       FEDERAL MARITIME COMMISSION

 Guaranty in Respect of Liability for Nonperformance, Section 3 of the 
                                   Act

 Guaranty No.___________________________________________________________

 FMC Certificate No.____________________________________________________

    1. Whereas ---------------- (Name of applicant) (Hereinafter 
referred to as the ``Applicant'') is the Owner or Charterer of the 
passenger Vessel(s) specified in the annexed Schedule (``the 
Vessels'''), which are or may become engaged in voyages to or from 
United States ports, and the Applicant desires to establish its 
financial responsibility in accordance with section 3 of Pub. L. 89-777, 
89th Congress, approved November 6, 1966 (``the Act'') then, provided 
that the Federal Maritime Commission (``FMC'') shall have accepted, as 
sufficient for that purpose, the Applicant's application, supported by 
this Guaranty, and provided that FMC shall issue to the Applicant a 
Certificate

[[Page 252]]

(Performance) (``Certificate''), the undersigned Guarantor hereby 
guarantees to discharge the Applicant's legal liability to indemnify the 
passengers of the Vessels for nonperformance of transportation within 
the meaning of section 3 of the Act, in the event that such legal 
liability has not been discharged by the Applicant within 21 days after 
any such passenger has obtained a final judgment (after appeal, if any) 
against the Applicant from a United States Federal or State Court of 
competent jurisdiction, or has become entitled to payment of a specified 
sum by virtue of a compromise settlement agreement made with the 
Applicant, with the approval of the Guarantor, whereby, upon payment of 
the agreed sum, the Applicant is to be fully, irrevocably and 
unconditionally discharged from all further liability to such passenger 
for such nonperformance.
    2. The Guarantor's liability under this Guaranty in respect to any 
passenger shall not exceed the amount paid by such passenger; and the 
aggregate amount of the Guarantor's liability under this Guaranty shall 
not exceed $------------.
    3. The Guarantor's liability under this Guaranty shall attach only 
in respect of events giving rise to a cause of action against the 
Applicant, in respect of any of the Vessels, for nonperformance of 
transportation within the meaning of Section 3 of the Act, occurring 
after the Certificate has been granted to the Applicant, and before the 
expiration date of this Guaranty, which shall be the earlier of the 
following dates:
    (a) The date whereon the Certificate is withdrawn, or for any reason 
becomes invalid or ineffective; or
    (b) The date 30 days after the date of receipt by FMC of notice in 
writing delivered by certified mail, courier service or other electronic 
means such as email and fax, that the Guarantor has elected to terminate 
this Guaranty except that: (i) If, on the date which would otherwise 
have been the expiration date under the foregoing provisions (a) or (b) 
of this Clause 3, any of the Vessels is on a voyage whereon passengers 
have been embarked at a United States port, then the expiration date of 
this Guaranty shall, in respect of such Vessel, be postponed to the date 
on which the last passenger on such voyage shall have finally 
disembarked; and (ii) Such termination shall not affect the liability of 
the Guarantor for refunds arising from ticket contracts made by the 
Applicant for the supplying of transportation and other services prior 
to the date suc