[Federal Register Volume 63, Number 240 (Tuesday, December 15, 1998)]
[Proposed Rules]
[Pages 69034-69044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33182]


=======================================================================
-----------------------------------------------------------------------

FEDERAL MARITIME COMMISSION

46 CFR Parts 535 and 572

[Docket No. 98-26]


Ocean Common Carrier and Marine Terminal Operator Agreements 
Subject to the Shipping Act of 1984

AGENCY: Federal Maritime Commission.

ACTION: Proposed rule.

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

SUMMARY: The Federal Maritime Commission proposes to amend its 
regulations governing agreements among ocean common carriers and marine 
terminal operators to reflect changes made to the Shipping Act of 1984 
by the recently enacted Ocean Shipping Reform Act of 1998, Pub. L. 105-
258. In accordance with that Act, the Commission is proposing to 
establish new rules for ocean carrier agreements regarding carriers' 
service contracts with shippers, amend the scope of marine terminal 
agreements subject to the Act, establish rules for agreements on 
freight forwarder compensation, reduce the mandatory notice period for 
carriers' independent action on tariff rates, and make other conforming 
changes. The Commission is also proposing to delete much of its format 
requirements for filed agreements, clarify the definition of ``ocean 
common carrier'', and make other technical amendments to the filing 
rules for clarity and administrative efficiency.

DATES: Comments due January 14, 1999.

ADDRESS: Send comments (original and fifteen copies) to: Joseph C. 
Polking, Secretary, Federal Maritime Commission, 800 North Capitol 
Street, NW, Room 1046, Washington, DC 20573-0001.

FOR FURTHER INFORMATION CONTACT:

Thomas Panebianco, General Counsel, Federal Maritime Commission, 800 
North Capitol Street, NW, Washington, DC 20573-0001 (202) 523-5740
Austin L. Schmitt, Director, Bureau of Economics and Agreement 
Analysis, Federal Maritime Commission, 800 North Capitol Street, NW., 
Washington, DC 20573-0001 (202) 523-5787

SUPPLEMENTARY INFORMATION:

Background

    On October 14, 1998, the Ocean Shipping Reform Act, Pub. L. 105-
258, 112 Stat. 1902, (``OSRA'') was signed into law. That law makes 
several changes to the Federal Maritime Commission's (``FMC'' or 
``Commission'') authorities and responsibilities under the Shipping Act 
of 1984, 46 U.S.C. app. 1701 et seq. (``1984 Act''). In particular, in 
an effort to foster competition and other aims, Congress made a number 
of changes regarding the treatment of agreements between and among 
vessel-operating common carriers and marine terminal operators, which 
are subject to Commission oversight. Section 203 of

[[Page 69035]]

OSRA requires that ``[n]ot later than March 1, 1999, the Federal 
Maritime Commission shall prescribe final regulations to implement the 
changes made by this Act.''
    On November 13, 1998 the President signed the Coast Guard 
Authorization Act of 1998, 1999 and 2000, Pub. L. 105-383, 112 Stat. 
3411 (November 13, 1998). That Act also included amendments to the 
Shipping Act of 1984. Accordingly, the Commission now proposes to 
update its agreement-related regulations to conform with these new 
laws. The Commission is also proposing to amend its rules to eliminate 
certain unnecessary formal requirements and make other clarifications 
and changes.

OSRA Changes to FMC Agreement Oversight

    The most notable feature made to the 1984 Act by OSRA involves 
ocean carrier agreements and service contracting. Specifically, OSRA 
amends section 5 of the 1984 Act to provide that ocean common carrier 
agreements may not prohibit or restrict members from negotiating 
service contracts with one or more shippers, and may not require 
members to disclose the terms and conditions of a service contract or a 
negotiation on a service contract. In its report on OSRA, the Senate 
Commerce, Science, and Transportation Committee stated that ``the right 
of individual and independent service contracts is the most important 
change made by the bill''; the change was made ``to foster intra-
agreement competition, promote efficiencies, modernize ocean shipping 
arrangements, and encourage individual shippers and carriers to develop 
economic partnerships that better suit their business needs.'' S. Rep. 
No. 2, 105th Cong., 1st Sess. 16-17 (1997). Under the new law, ocean 
common carrier agreements are prohibited from adopting mandatory rules 
or requirements affecting a member's right to negotiate and enter into 
service contracts. OSRA does provide, however, that an agreement may 
issue voluntary guidelines relating to the terms and procedures of 
members' service contracts, if they state that members are not required 
to follow the guidelines. Agreement guidelines are required to be 
submitted confidentially to the FMC.
    Other notable changes in OSRA include reducing the notice period 
for independent action on tariff rates and service items from ten 
calendar days to five, and establishing that the right of independent 
action applies to all rates and charges fixed by a conference. In 
addition, OSRA (while it eliminates many of the Act's prohibitions on 
discriminatory treatment) adds new sections 10(c) (7) and (8) applying 
to service contract carriage, barring carrier groups from subjecting 
shippers' associations or ocean transportation intermediaries to unjust 
discrimination or unreasonable prejudice or disadvantage based on their 
status as associations or intermediaries. This section shows Congress's 
recognition that these ``middlemen'' are an important part of the 
market's competitive structure and are worthy of special protections.
    The standards in section 16 for granting exemptions from 
requirements of the Act also have been liberalized. Maintaining 
effective FMC regulation and averting unjust discrimination are no 
longer part of the analysis. The Commission now must establish only 
that an exemption will ``not result in substantial reduction in 
competition or be detrimental to commerce.'' \1\
---------------------------------------------------------------------------

    \1\ While the grant of particular exemptions under the new 
standard is beyond the scope of this proposed rule, the Commission 
will entertain comments on whether any classes of agreements would 
be appropriate for full or qualified exemption under the new test. 
Such comments, if meritorious, may form the basis for future 
proceedings.
---------------------------------------------------------------------------

    The new law also rectifies ambiguity that arose in the wake of the 
1995 repeal of the Shipping Act, 1916 (which applied to domestic 
waterborne commerce; see Pub. L. 104-88, 109 Stat. 803) as to the scope 
of the Commission's authority over marine terminal operations involving 
domestic commerce. OSRA changes the definition of ``marine terminal 
operator'' (formerly section 3(15), now 3(14)) to make clear that it 
applies to the furnishing of terminal facilities not just in connection 
with ``common carriers'' (i.e., wholly international commerce), but 
also in connection with ``a common carrier and a water carrier subject 
to subchapter II of chapter 135 of title 49, United States Code.'' Put 
another way, the definition of marine terminal operator (and thus, our 
jurisdiction) now extends to terminal operations involving both 
international and domestic waterborne commerce, but not to terminal 
operations involving solely domestic transport.
    A corresponding change is made in section 4(b) of the 1984 Act, 
which specifies the types of agreements subject to the Act. The amended 
Shipping Act thus will apply to agreements among terminal operators to 
discuss, fix or regulate rates or services applicable to both 
international and domestic commerce. However, agreements involving 
terminal operators to ``engage in exclusive, preferential, or 
cooperative working arrangements'' will only be subject to the Act ``to 
the extent such agreements involve ocean transportation in the foreign 
commerce of the United States.''
    While OSRA made no changes to the general economic standard for 
evaluating agreements in section 6(g) of the Act, the legislative 
history explains that evolving market conditions require the Commission 
to take a more vigorous and forward-looking approach to enforcing the 
general standard. The Committee stated, in part:

    * * * [I]nternational liner shipping is becoming a more 
concentrated industry. The Committee is concerned that trade-wide 
agreements established by the potential oligopoly of mega-carriers 
and global strategic alliances, composed of fewer and more 
homogeneous members than are today's agreements, may effectively 
dominate the major U.S. trade lanes in the near future.
    The section contemplates the use of reasoned projections and 
forward-looking analyses by the agency, based on its substantial 
industry expertise. It appears that the FMC thus far has given the 
section a restrictive reading, suggesting that an injunction cannot 
be won without direct evidence of actual commercial harm suffered by 
shippers as a result of agreement activity. While evidence of 
shipper harm may indeed be relevant in certain cases, a blanket 
requirement for such evidence is not consistent with the text of the 
statute, and would undermine the agency's ability to take necessary 
preventive action. Indeed, the Committee directs the agency not to 
allow the disruption of ocean borne commerce while it seeks to 
quantify such disruption for evidentiary purposes.

    S. Rep. No. 2, 105th Cong., 1st Sess. 8-9 (1997).

    The Committee also set forth a detailed analytical approach to the 
section, developed in cooperation with the Commission and other 
interested parties. While no specific changes on the Commission's rules 
appear to be warranted to implement these policies, the Commission will 
be tailoring and refining its agreement analysis to conform with the 
Committee's admonitions.

The Proposed Rule

    The proposed rule redesignates the Commission's agreement rules, 
formerly 46 CFR part 572, as part 535, and makes changes to its 
authority citations to reflect ISRA's passage. References in the 
following discussion will be to the redesignated part number.
    The following discussion first covers the three groups of proposed 
rule amendments that require a degree of detailed explanation: (1) 
changes regarding service contracts; (2) changes in agreement form; and 
(3) a revised definition of ocean common carrier.

[[Page 69036]]

Following those three matters is a discussion of the remainder of the 
proposed changes, in the order they appear in the rule.

Proposed Amendments Regarding Service Contracts

    A new policy statement is added in Sec. 535.103 to reflect the 
Act's new limits on carrier agreements affecting service contracts. The 
definitions of ``service contract'' and ``shipper'' in Sec. 535.104 
(cc) and (dd) are changed to reflect changes in the Act. Also, to 
conform with OSRA, the former reference to regulating and prohibiting 
service contracts in the list of agreements subject to the Act 
(Sec. 535.201(7)) is changed to ``discuss and agree to any matter 
related to service contracts.''
    Section 535.802 is entirely new. It reflects the new provisions in 
section 5(c) (1) and (2) of the Act barring carriers from collectively 
agreeing to prohibitions or restrictions on service contract 
negotiations, or requirements for disclosure of contract terms or 
negotiations. It makes clear that these prohibitions in section 5(c) 
(1) and (2) apply whether or not the carriers' agreed-upon 
prohibitions, restrictions, or requirements are legally enforceable or 
backed by sanctions or penalties.
    While OSRA bars carrier groups from establishing binding rules for 
contracts, it allows them to adopt voluntary guidelines to guide 
members in their contract dealings with shippers. Section 535.802(c) 
reflects the Act's new section 5(c)(3) barring carriers from 
collectively adopting mandatory rules or requirements for contracts. 
Section 535.802 (d)-(g) addresses the use of voluntary service contract 
guidelines. The term ``voluntary guidelines'' is defined to clarify 
that it applies to the terms of service contracts and the procedures 
carriers follow in their dealing with shipper customers, and not to 
procedures for carriers' discussions or decision making among 
themselves, which would effectively restrict independent service 
contracting. The rule also makes clear that use of such guidelines must 
be wholly at the option of the individual carrier.
    Section 535.802(f) states that voluntary guidelines may not include 
procedures whereby carriers agree to disclose service contract terms or 
negotiations, pre-clear proposed service contracts, submit to 
compliance checks or are subject to sanctions for non-compliance. Such 
``guidelines'' would be inconsistent with the voluntariness requirement 
in the statute, the Act's prohibition on disclosure requirements and 
agreement restrictions on service contracting, and would undermine 
Congress' intent to eliminate collective control of service 
contracting.
    A new Sec. 535.802(h) is added in recognition that, inasmuch as the 
Act allows multi-carrier agreements, carriers must agree among 
themselves on procedures for entering into and administering such 
contracts. Such procedures must be reflected in the carriers' filed 
agreement.
    Another new section, Sec. 535.803, is added reflecting the new 
statutes' mandate that carriers may not agree to limit freight 
forwarder compensation to less than 1.25 percent of charges, and must 
be allowed to take independent action on freight forwarder compensation 
on not more than five days' notice.

Proposed Changes Regarding Form of Agreements

    The Commission at this time also is proposing to eliminate many of 
the form and manner requirements for agreements set forth in Subpart D. 
While Congress did not address this matter directly in OSRA, both the 
law and the legislative history make it clear that Congress intended 
that the industry be afforded more administrative flexibility to 
respond to the marketplace. For example, OSRA provides carriers 
substantially more flexibility in structuring tariffs. Also, in its 
discussion of agreements, the Commerce Committee Report emphasized 
``prompt agreement review, minimal government intervention, and 
continued flexibility in structuring agreements.'' In light of these 
factors it does not seem appropriate to continue the requirement that 
carriers structure their agreements to accord with a highly structured, 
tariff-type form.
    Therefore, Sec. 535.402(a) is amended to remove paper size and 
margin requirements, and clarify that agreements in other languages 
must include a translation. The title page requirement in 
Sec. 535.402(b) is modified slightly. In addition, a revised 
Sec. 535.402(d) clarifies that agreements are signed by each individual 
contracting party or its designated agent, as opposed to a single 
official or agent of the group as a whole, ensuring that filed 
agreements comport with general statute of frauds principles and 
indicate on their face the assent of each individual party. Another 
amendment to section 535.402(d), permitting faxed or photocopied 
signatures, will minimize any administrative delay.
    The ordering and pagination requirements in Secs. 535.402(e) and 
403 are almost entirely removed. Only those requirements necessary to 
the processing and oversight of the agreement are retained. Thus, 
agreements must either include or be accompanied by a table of 
contents, and by information such as contact names, addresses, and 
specific geographic scope involved. Of course, in deleting the form 
requirements, the Commission is in no way indicating that particular 
agreement provisions are no longer required to be filed; indeed, the 
completeness requirement of Sec. 535.407 is unchanged. Rather, it is 
the Commission's intent that parties be free to draft their 
arrangements to best suit their commercial objectives.
    Section 535.404 is revised to delete the requirement that 
conference-specific agreement language be ordered in a particular 
fashion. However, the content requirements, which track section 5 of 
the 1984 Act's provisions, are largely retained.
    The agreement modification section, Sec. 535.405, is simplified. 
The Commission wishes the amendment process to be as expedient and 
practical as possible. Therefore, it is continuing the customary 
practice of allowing changes to exist language to be made through the 
submission of ``revised pages,'' with accompanying market-up pages 
submitted for illustration purposes. Also, the elimination of the form 
requirements implicitly provides carriers more flexibility to amend 
their understandings by filing additional agreement pages or sections. 
Mandatory republication is eliminated, replaced with a new 
Sec. 535.405(e), providing that the Commission may mandate 
republication when it is deemed necessary to maintain the clarity of an 
agreement. In addition, the waiting period exemption for miscellaneous 
amendments, set forth in Sec. 535.309, is amended to remove specific 
form requirements.

Proposed Revised Definition of Ocean Common Carrier

    An amended definition of ``ocean common carrier'' is proposed to 
resolve uncertainty generated by the 1984 Act's definition, which is 
simply ``a vessel-operating common carrier.'' At issue is part of the 
regulatory dividing line between ocean common carriers and non-vessel-
operating common carriers (``NVOCCs''). The distinction, which was 
first codified in 1984, has significant implications for the regulatory 
scheme, inasmuch as the 1984 Act afforded ocean carriers, but not 
NVOCCs, antitrust immunity and other rights and responsibilities under 
the 1984 Act. The need for clarity in this area is continued by OSRA, 
which continues to differentiate between vessel-operating and non-
vessel

[[Page 69037]]

operating lines with regard to service contracting and other areas.
    At first glance, it is difficult to see the ambiguity in the phrase 
``vessel-operating.'' However, the Commission staff has encountered a 
number of complex or debatable administrative issues regarding where 
and when vessels are operated, and what types of vessels are involved. 
The staff has long taken a position (albeit an uncodified one) in its 
dealings with the industry that an ``ocean common carrier'' is a common 
carrier that, in providing a common carrier service, operates a vessel 
calling at a U.S. port. If a carrier is an ocean common carrier in one 
trade, it has been reasoned, it is an ocean common carrier for all 
trades. For example, if a carrier operates vessels from the U.S. East 
Coast to northern Europe, it has the legal ``status'' of ocean common 
carrier to enter into space charter agreements for any U.S.-foreign 
trade.
    The proposed definition would codify the staff's approach. It would 
continue the practice of determining status on a multi-trade basis 
(i.e., an ocean common carrier in one trade has that status in all 
trades). Any interpretation of the statute requiring status 
determinations to be made on a trade-by-trade basis would be 
administratively impractical and likely would prompt less than 
efficient redeployment of vessels in the U.S. trades for purely legal 
purposes.
    The proposed definition would also clarify the issue whether 
companies that operate vessels only outside the U.S.--i.e., if they 
have no vessel operations to U.S. ports--can be deemed ``ocean common 
carriers.'' While the staff's view has been negative, the lack of 
precedent or formal guidance on this issue warrants that the issue now 
be resolved by the Commission after an opportunity for interested 
parties to be heard.
    It appears that the legislative intent of the 1984 Act was to view 
vessel operators as those whose vessels call at U.S. ports and to 
classify all other common carriers in U.S. commerce as non-vessel-
operating common carriers. For example, in its report on the 1984 Act, 
the Senate Commerce, Science, and Transportation Committee observed:

    The Committee strongly believes that it is in our national 
interest to permit cooperation among carriers serving our foreign 
trades to permit efficient and reliable service * * *. Our carriers 
need; a stable, predictable, and profitable trade with a rate of 
return that warrants reinvestment and a commitment to serve the 
trade; greater security in investment * * *.

S. Rep. No. 3, 98th Cong., 1st Sess. 9 (1983). Accordingly, we do not 
believe that Congress intended to provide special privileges or 
protections to carriers that have not made the financial commitment to 
providing vessel service to the United States.
    A definition of ocean common carrier that encompassed companies 
that operate vessels only in foreign-to-foreign trades would 
substantially broaden the scope of antitrust immunity potentially to 
include a number of small operators whose wholly foreign vessel 
operations would be difficult for the Commission to monitor or verify. 
Such a finding would remove such companies from the scope of the Act's 
NVOCC bonding requirements, even though they have no vessels or assets 
in the United States that can be attached to satisfy a Commission or 
U.S. court judgment; it would remove them from OSRA's licensing 
requirements as well. Such an approach would also seem to contravene 
the longstanding judicial policy of narrowly construing antitrust 
exemptions. See, e.g., Federal Maritime Commission v. Seatrain Lines, 
Inc., 411 U.S. 726, 733 (1973). In addition, from the text of the Act 
it appears likely that when Congress used the unadorned term ``vessel'' 
in the definition of ocean common carrier, it was referring to the 
vessels specified in the definition of common carrier, i.e., those that 
operate on the high seas or Great Lakes between the United States and a 
foreign country.
    The proposed definition would continue the policy that the vessels 
in question must be used in a common carrier service. If an NVOCC 
operates tankers, tramps, or cruise ships wholly apart from its common 
carrier service, it does not secure ocean common carrier status from 
those vessel operations.

Other Proposed Changes

    Redesignated Sec. 535.102 is amended to reflect that marine 
terminal agreements are no longer limited to solely international 
commerce.
    The definition of ``common carrier'' in Sec. 535.104(f) is amended 
to reflect changes made in the 1984 Act by section 424(d) of the Coast 
Guard Authorization Act. That act inserted a qualified exception in the 
definition for certain vessels carrying perishable agricultural 
commodities.
    The definition of ``conference agreement,'' in redesignated 
Sec. 535.104(g) is changed to clarify that the term (and the rule 
sections that apply it, such as the mandatory independent action 
requirements) extends only to ocean common carrier conferences, and not 
to marine terminal conferences, which are defined elsewhere in this 
part. The definition is also changed to eliminate two seemingly 
superfluous elements that do not appear to correspond with the 
statutory text: (1) the requirement that, to be a conference, carriers 
must agree to collective administrative affairs, and (2) the statement 
that carriers may have a common tariff and must participate in some 
tariff. The definition is also amended to reflect that an agreement may 
offer agreement service contracts without being designated a 
conference.
    The definition of ``effective agreement'' in redesignated 
Sec. 535.104(j) is changed to remove references to the Shipping Act, 
1916, and the definition of ``information form'' in paragraph (m) is 
amended to clarify that it extends to some types of agreement 
modifications. ``Marine terminal operator'' is redefined in paragraph 
(q) to accord with the new definition in OSRA, as discussed above, and 
the definition of NVOCC is removed, as it no longer appears in this 
part.
    OSRA's changes regarding jurisdiction over marine terminal 
operators are also reflected in redesignated Sec. 535.201, the list of 
agreements subject to the Act. Also in that section, the reference to 
cooperative working agreements with non-vessel-operating common 
carriers, which the Commission has always found to be irreconcilable 
with the service contract requirements of the Act, is deleted in 
accordance with OSRA. Also, references to NVOCC and freight forwarder 
agreements are removed from the non-subject agreements section, 
redesignated Sec. 535.202 (f) and (g).
    The exemption provisions in redesignated Sec. 535.301 are changed 
to comport with the new law's more liberal standard. The exemption 
procedures are being moved to a general (i.e., not agreements-specific) 
exemption section in the Commission's Rules of Practice and Procedure.
    In the marine terminal agreements exemption, redesignated 
Sec. 535.307, the definition of ``marine terminal conference'' in 
paragraph (b) is amended to reflect that such agreements do not have to 
involve solely international commerce. Also, the extraneous references 
to collective administrative affairs and tariff filing are removed (as 
with the definition of ``conference agreement'' in redesignated 
Sec. 535.104(g)). In the marine terminal services exemption in 
redesignated Sec. 535.310, a definition of marine terminal services is 
incorporated in paragraph (a), and paragraph (a)(2), which excepts 
previously filed agreements from the exemption, is removed.
    Redesignated Sec. 535.501(a) is amended, and a new Sec. 535.503(b) 
is

[[Page 69038]]

added to make clear that agreement modifications that expand the 
geographic scope or change the class designation of the underlying 
agreement must be accompanied by an appropriate information form. Also, 
redesignated Sec. 535.706(c)(1) is amended to accord with OSRA's 
changed tariff requirements.
    The mandatory provisions for independent action for conferences in 
redesignated Sec. 535.801 are changed to reflect that shortened notice 
period, from ten to five days. Also, the rules are amended to reflect 
the statutory change that conferences must allow independent action on 
all rates and service items, not just those required to be included in 
tariffs. That is, if a conference fixes a rate on a commodity exempt 
from tariff publication, for example, waste paper, it must allow 
members to take independent action on the waste paper rates. If the 
conference publishes a waste paper rate in its tariff (it does not have 
to, but it can do so voluntarily), then it must publish the member's IA 
waste paper rates as well. Section 535.801(i), a transitional provision 
that applied to the 90-day period immediately after the IA rules were 
adopted, is deleted.
    The Commission is also proposing to add a new reporting requirement 
to Appendices A, C and D, to effectively implement OSRA's new 
prohibitions in section 10(c)(7-8), discussed above, barring 
discrimination against ocean transportation intermediaries and 
shippers' associations based on status. The amendment would require 
each member of an agreement to provide summary statistics on its 
service contract activities, by class of shipper. The report would be 
required for both the benchmark information form filed with Class A/B 
agreements, and for the ongoing quarterly monitoring reports filed for 
Class A and B agreements. It is incumbent upon the Commission to 
actively monitor these practices, as violations of the new 10(c)(7-8) 
may well go undiscovered by affected parties, given the new 
confidentiality of service contracts.
    The reporting, recordkeeping and disclosure requirements contained 
in this proposed rule have been submitted to the Office of Management 
and Budget (OMB). This proposed regulation reduces the overall public 
burden of collection of information by 4.57%. The proposed regulation 
would reduce the average personhours per response from 43.3 to 41.3. 
These estimates include, as applicable, the time needed to review 
instructions, develop, acquire, install, and utilize technology and 
systems for the purposes of collecting, validating, and verifying 
information, processing and maintaining information, and disclosing and 
providing information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
respond to a collection of information, search existing data sources, 
gathering and maintain the data needed, and complete and review the 
collection of information; and transmit or otherwise disclose the 
information.
    Send comments regarding the burden estimates to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Attention Desk Officer for the Federal Maritime Commission, New 
Executive Office Building, 725 17th Street, NW, Washington, DC 20503 
within 30 days of publication in the Federal Register.
    The FMC would also like to solicit comments to: (a) evaluate 
whether the proposed collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information will have practical utility; (b) evaluate the accuracy 
of the Commission's burden estimates for the proposed collection of 
information; (c) enhance the quality, utility, and clarity of the 
information to be collected; and (d) minimize the burden of the 
collections of information on respondents, including through the use of 
automated collection techniques or other forms of information 
technology. Comments submitted in response to this proposed rulemaking 
will be summarized and/or included in the final rule and will become a 
matter of public record.
    The Chairman certifies, pursuant to section 605 of the Regulatory 
Flexibility Act, 5 U.S.C. 605, that the proposed rules will not, if 
promulgated, have a significant impact on a substantial number of small 
entities. The affected universe of parties is limited to ocean common 
carriers, passenger vessel operators, and marine terminal operators. 
The Commission has determined that these entities do not come under the 
programs and policies mandated by the Small Business Regulatory 
Enforcement Fairness Act as they typically exceed the threshold figures 
for number of employees and/or annual receipts to qualify as a small 
entity under Small Business Administration Guidelines.

List of Subjects in 46 CFR Parts 535 and 572

    Administrative practice and procedure, Maritime carriers, Reporting 
and recordkeeping requirements.

    Therefore, for the reasons set forth above, Title 46, Code of 
Federal Regulations, is proposed to be amended as follows:

PART 572--AGREEMENTS BY OCEAN COMMON CARRIERS AND OTHER PERSONS 
SUBJECT TO THE SHIPPING ACT OF 1984

    1. The authority citation for part 572 is revised to read as 
follows:

    Authority: 5 U.S.C. 553; 46 U.S.C. app. 1701-1707, 1709-1710, 
1712 and 1714-1717; Pub. L. 104-88, 109 Stat. 803, (49 U.S.C. 101 
note).

    2. Redesignate part 572 as part 535 of subchapter B, chapter IV of 
46 CFR.
    3. Revise redesignated Sec. 535.101 to read as follows:


Sec. 535.101  Authority.

    The rules in this part are issued pursuant to the authority of 
section 4 of the Administrative Procedure Act (5 U.S.C. 553), sections 
2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 15, 16, 17 and 19 of the Shipping Act 
of 1984 (``the Act''), and the Ocean Shipping Reform Act of 1998, Pub. 
L. 104-88, 109 Stat. 803.
    4. Amend redesignated section 535.102 to remove the parenthetical 
phrase ``(to the extent the agreements involve ocean transportation in 
the foreign commerce of the United States)''.
    5. Amend redesignated section 535.103 to add paragraph (h) to read 
as follows:


Sec. 535.103  Policies.

* * * * *
    (h) In order to promote competitive and efficient transportation 
and a greater reliance on the marketplace, the Act places limits on 
carriers' agreements regarding service contracts. Carriers may not 
enter into an agreement to prohibit or restrict members from engaging 
in contract negotiations, may not require members to disclose service 
contract negotiations or terms and conditions (other than those 
required to be published), and may not adopt mandatory rules or 
requirements affecting the right of an agreement member or agreement 
members to negotiate and enter into contracts. However, agreement 
members may adopt voluntary guidelines covering the terms and 
procedures of members' contracts.
    6. Amend redesignated Sec. 535.104 as follows: paragraphs (f), (g), 
(j), (m) and (q) are revised, paragraph (u) is removed, paragraph (v) 
is redesignated (u) and revised, paragraphs (w), (x), (y),(z), (aa), 
(bb) and (cc) are redesignated (v), (w), (x), (y), (z), (aa) and (bb), 
paragraph (dd) is redesignated (cc) and revised, paragraph (ee) is

[[Page 69039]]

redesignated (dd) and revised, paragraphs (ff), (gg), (hh), (ii), (jj), 
and (kk) are redesignated (ee), (ff), (gg), (hh), (ii) and (jj), as 
follows:


Sec. 535.104  Definitions.

* * * * *
    (f) Common carrier means a person holding itself out to the general 
public to provide transportation by water of passengers or cargo 
between the United States and a foreign country for compensation that:
    (1) Assumes responsibility for the transportation from the port or 
point of receipt to the port or point of destination; and
    (2) Utilizes, for all or part of that transportation, a vessel 
operating on the high seas or the Great Lakes between a port in the 
United States and a port in a foreign country, except that the term 
does not include a common carrier engaged in ocean transportation by 
ferry boat, ocean tramp, or chemical parcel tanker, or by a vessel when 
primarily engaged in the carriage of perishable agricultural 
commodities:
    (i) If the common carrier and the owner of those commodities are 
wholly owned, directly or indirectly, by a person primarily engaged in 
the marketing and distribution of those commodities and
    (ii) Only with respect to those commodities.
    (g) Conference agreement means an agreement between or among two or 
more ocean common carriers which provides for the fixing of and 
adherence to uniform tariff rates, charges, practices and conditions of 
service relating to the receipt, carriage, handling and/or delivery of 
passengers or cargo for all members. The term does not include joint 
service, pooling, sailing, space charter, or transshipment agreements.
* * * * *
    (j) Effective agreement means an agreement effective under the Act.
* * * * *
    (m) Information form means the form containing economic information 
which must accompany the filing of certain kinds of agreements and 
agreement modifications.
* * * * *
    (q) Marine terminal operator means a person engaged in the United 
States in the business of furnishing wharfage, dock, warehouse, or 
other terminal facilities in connection with a common carrier, or in 
connection with a common carrier and a water carrier subject to 
subchapter II of chapter 135 of Title 49 U.S.C. This term does not 
include shippers or consignees who exclusively furnish marine terminal 
facilities or services in connection with tendering or receiving 
proprietary cargo from a common carrier or water carrier.
* * * * *
    (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.
* * * * *
    (cc) Service contract means a written contract, other than a bill 
of lading or a receipt, between one or more shippers and an individual 
ocean common carrier or an agreement between or among ocean common 
carriers in which the shipper or shippers make a commitment to provide 
a certain volume or portion of cargo over a fixed time period, and the 
ocean common carrier or the agreement commits to a certain rate or rate 
schedule and a defined service level--such as assured space, transit 
time, port rotation, or similar service features. The contract may also 
specify provisions in the event of nonperformance on the part of any 
party.
    (dd) Shipper means:
    (1) A cargo owner;
    (2) The person for whose account the ocean transportation is 
provided;
    (3) The person to whom delivery is to be made;
    (4) A shippers' association; or
    (5) A non-vessel-operating common carrier (i.e., a common carrier 
that does not operate the vessels by which the ocean transportation is 
provided and is a shipper in its relationship with an ocean common 
carrier) that accepts responsibility for payment of all charges 
applicable under the tariff or service contract.
* * * * *
    7. Amend redesignated Sec. 535.201 to revise paragraphs (a)(5), 
(a)(6), (a)(7) and (b) to read as follows:


Sec. 535.201  Subject agreements.

    (a) * * *
    (5) Engage in exclusive, preferential, or cooperative working 
arrangements among themselves or with one or more marine terminal 
operators;
    (6) Control, regulate, or prevent competition in international 
ocean transportation; or
    (7) Discuss and agree on any matter related to service contracts.
    (b) Marine terminal operator agreements. This part applies to 
agreements among marine terminal operators and among one or more marine 
terminal operators and one or more ocean carriers to:
    (1) Discuss, fix, or regulate rates or other conditions of service; 
or
    (2) Engage in exclusive, preferential, or cooperative working 
arrangements, to the extent that such agreements involve ocean 
transportation in the foreign commerce of the United States.
    8. Amend redesignated Sec. 535.202 to revise paragraphs (d) and (e) 
and to remove paragraphs (f) and (g) to read as follows:


Sec. 535.202  Non-subject agreements.

* * * * *
    (d) Any agreement among common carriers to establish, operate, or 
maintain a marine terminal in the United States; and
    (e) Any agreement among marine terminal operators which exclusively 
and solely involves transportation in the interstate commerce of the 
United States.
    9. Amend Sec. 535.301 to revise paragraphs (a) and (c), to remove 
paragraphs (d) and (e), and to redesignate paragraph (f) as paragraph 
(d) and revise it to read as follows:


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 agreements 
between persons subject to the Act from any requirement of the Act if 
it finds that the exemption will not result in substantial reduction in 
competition or be detrimental to commerce.
* * * * *
    (c) Application for exemption. Applications for exemptions shall 
conform to the general filing requirements for exemptions set forth at 
Sec. 502.67 of this title.
    (d) Retention of agreement by parties. Any agreement which has been 
exempted by the Commission pursuant to section 16 of the Act shall be 
retained by the parties and shall be available upon request by the 
Bureau of Economics and Agreement Analysis for inspection during the 
term of the agreement and for a period of three years after its 
termination.
    10. Amend redesignated Sec. 535.307 to revise paragraph (b) to read 
as follows:


Sec. 535.307  Marine terminal agreements--exemption.

* * * * *
    (b) Marine terminal conference agreement means an agreement between 
or among two or more marine terminal operators and/or ocean common 
carriers for the conduct or facilitation of marine

[[Page 69040]]

terminal operations which provides for the fixing of and adherence to 
uniform maritime terminal rates, charges, practices and conditions of 
service relating to the receipt, handling, and/or delivery of 
passengers or cargo for all members.
* * * * *
    11. Amend redesignated Sec. 535.309 to revise paragraphs (a)(2)(i), 
(a)(2)(ii), and (a)(2)(iii) to read as follows:


Sec. 535.309.  Miscellaneous modifications to agreements--exemptions.

    (a) * * *
    (2) Any modification to the following:
    (i) Parties to the agreement (limited to conference agreements, 
voluntary ratemaking agreements having no other anticompetitive 
authority (e.g., pooling authority or capacity reduction authority), 
and discussion agreements among passenger vessel operating common 
carriers which are open to all ocean common carriers operating 
passenger vessels of a class defined in the agreements and which do not 
contain ratemaking, pooling, joint service, sailing or space chartering 
authority.
    (ii) Officials of the agreement and delegations of authority.
    (iii) Neutral body policing (limited to the description of neutral 
body authority and procedures related thereto).
* * * * *
    12. Amend redesignated Sec. 535.310 by revising paragraph (a) to 
read as follows:


Sec. 535.310  Marine terminal services agreements--exemptions.

    (a) Marine terminal services agreement means an agreement, 
contract, understanding, arrangement or association, written or oral 
(including any modification, cancellation or appendix) between a marine 
terminal operator and an ocean common carrier that applies to marine 
terminal services, including checking; dockage; free time; handling; 
heavy lift; loading and unloading; terminal storage; usage; wharfage; 
and wharf demurrage and including any marine terminal facilities which 
may be provided incidentally to such marine terminal services) that are 
provided to and paid for by an ocean common carrier. The term ``marine 
terminal services agreement'' does not include any agreement which 
conveys to the involved carrier any rights to operate any marine 
terminal facility by means of a lease, license, permit, assignment, 
land rental, or similar other arrangement for the use of marine 
terminal facilities or property.
* * * * *
    13. Amend redesignated Sec. 535.402 to revise paragraphs (a), (b) 
introductory text, (d) and (e) and remove paragraphs (f) and (g) to 
read as follows:


Sec. 535.402  Form of agreements.

* * * * *
    (a) Agreements shall be clearly and legibly written. Agreements in 
a language other than English shall be accompanied by an English 
translation.
    (b) Every agreement shall include or be accompanied by a title page 
indicating:
* * * * *
    (d) Each agreement and/or modification filed will be signed in the 
original by an official or authorized representative of each of the 
parties and shall indicate the typewritten full name of the signing 
party and his or her position, including organizational affiliation. 
Faxed or photocopied signatures will be accepted if replaced with an 
original signature as soon as practicable before the effective date.
    (e) Every agreement shall include or be accompanied by a Table of 
Contents providing for the location of all agreement provisions.
    14. Revise redesignated Sec. 535.403 to read as follows:


Sec. 535.403  Agreement provisions.

    If the following information (necessary for the expeditious 
processing of the agreement filing) does not appear fully in the text 
of the agreement, it shall be indicated in an attachment or appendix to 
the agreement, or on the title page:
    (a) Details regarding parties. Indicate the full legal name of each 
party, including any FMC-assigned agreement number associated with that 
name; and the address of its principal office (to the exclusion of the 
address of any agent or representative not an employee of the 
participating carrier or association).
    (b) Geographic scope of the agreement. State the ports or port 
ranges to which the agreement applies and any inland points or areas to 
which it also applies with respect to the exercise of the collective 
activities contemplated and authorized in the agreement.
    (c) Officials of the agreement and delegations of authority. 
Specify, by organizational title, the administrative and executive 
officials determined by the parties to the agreement to be responsible 
for designated affairs of the agreement and the respective duties and 
authorities delegated to those officials. At a minimum, specify:
    (1) The officials with authority to file agreements and agreement 
modifications and to submit associated supporting materials or with 
authority to delegate such authority; and
    (2) A statement as to any designated U.S. representative of the 
agreement required by this chapter.
    15. Revise redesignated Sec. 535.404 to read as follows:


Sec. 535.404  Organization of conference and interconference 
agreements.

    (a) Each conference agreement shall include the following:
    (1) Neutral body policing. State that, at the request of any 
member, the conference shall engage the services of an independent 
neutral body to fully police the obligations of the conference and its 
members. Include a description of any such neutral body authority and 
procedures related thereto.
    (2) Prohibited acts. State affirmatively that the conference shall 
not engage in conduct prohibited by section 10(c)(1) or 10(c)(3) of the 
Act.
    (3) Consultation: Shippers' requests and complaints. Specify the 
procedures for consultation with shippers and for handling shippers' 
requests and complaints.
    (4) Independent action. Include provisions for independent action 
in accordance with Sec. 535.801 of this part.
    (b) (1) Each agreement between carriers not members of the same 
conference must provide the right of independent action for each 
carrier.
    (2) Each interconference agreement must provide the right of 
independent action for each conference and specify the procedures 
therefor.
    16. Amend redesignated Sec. 535.405 by revising paragraphs (a), 
(b), (c), (d) and (e), and removing paragraphs (f) and (g) to read as 
follows:


Sec. 535.405  Modification of agreements.

* * * * *
    (a) Agreement modifications shall be: filed in accordance with the 
provisions of Sec. 535.401 and in the format specified in Sec. 535.402.
    (b) Agreement modifications shall be made by reprinting the entire 
page on which the matter being changed is published (``revised 
pages''). Revised pages shall indicate the consecutive denomination of 
the revision (e.g., ``1st Revised Page 7''). Additional material may be 
published on a new original page. New pages inserted between existing 
pages shall be numbered with an appropriate suffix (e.g., a page 
inserted between page 7 and page 8 shall be numbered 7a, 7.1, or 
similarly).
    (c) If the modification is made by the use of revised pages, the 
modification shall be accompanied by a page, submitted for illustrative 
purposes only, indicating the language being modified

[[Page 69041]]

in the following manner (unless such marks are apparent on the face of 
the agreement):
    (1) Language being deleted or superseded shall be struck through; 
and,
    (2) New and initial or replacement language shall immediately 
follow the language being superseded and be underlined.
    (d) If a modification requires the relocation of the provisions of 
the agreement, such modification shall be accompanied by a revised 
Table of Contents page which shall report the new location of the 
agreement's provisions.
    (e) When deemed necessary to ensure the clarity of an agreement, 
the Commission may require parties to republish their entire agreement, 
incorporating such modifications as have been made. No Information Form 
requirements apply to the filing of a republished agreement.
    17. Revise redesignated Sec. 535.501(a) to read as follows:


Sec. 535.501  General requirements.

    (a) Certain agreement filings must be accompanied with an 
Information Form setting forth information and data on the filing 
parties' prior cargo carryings, revenue results and port service 
patterns.
* * * * *
    18. Amend redesignated Sec. 535.502 by revising paragraphs (a)(1), 
(a)(3), (a)(4), (a)(5), (b)(1), and (b)(2) to read as follows:


Sec. 535.502  Subject agreements.

* * * * *
    (a) * * *
    (1) A rate agreement as defined in Sec. 535.104(aa);
    (2) * * *
    (3) A pooling agreement as defined in Sec. 535.104(x);
    (4) An agreement authorizing discussion or exchange of data on 
vessel-operating costs as defined in Sec. 535.104(jj); or
    (5) An agreement authorizing regulation or discussion of service 
contracts as defined in Sec. 535.104(cc).
    (b) * * *
    (1) A sailing agreement as defined in Sec. 535.104(bb); or
    (2) A space charter agreement as defined in Sec. 535.104(gg).
    19. Amend redesignated Sec. 535.503 by redesignating the text as 
one paragraph (a) and by adding new paragraph (b) to read as follows:


Sec. 535.503  Information form for Class A/B agreements.

    (a) * * *
    (b) Modifications to Class A/B agreements that expand the 
geographic scope of the agreement or modifications to Class C 
agreements that change the class of the agreement from C to A/B must be 
accompanied by an Information Form for Class A/B agreements.
    20. Amend redesignated Sec. 535.706 by revising paragraph (c)(1) to 
read as follows:


Sec. 535.706  Filing of minutes---including shippers' requests and 
complaints, and consultations.

* * * * *
    (c) * * *
    (1) Rates that, if adopted, would be required to be published in 
the pertinent tariff except that this exemption does not apply to 
discussions limited to general rate policy, general rate changes, the 
opening or closing of rates, or service or time/volume contracts; or
* * * * *
    21. Amend Subpart H--Conference Agreements by revising the title to 
read as follows:

Subpart H--Mandatory and Prohibited Provisions

    22. Amend redesignated Sec. 535.801 by: revising paragraphs (a), 
(b)(1), (d), (e), the final sentence of paragraph (f)(1), and (f)(2); 
removing paragraph (i); and redesignating paragraphs (j) as (i) and (k) 
as (j), to read as follows:


Sec. 535.801  Independent action.

    (a) Each conference agreement shall specify the independent action 
(``IA'') procedures of the conference, which shall provide that any 
conference member may take independent action on any rate or service 
item upon not more than 5 calendar days' notice to the conference and 
shall otherwise be in conformance with section 5(b)(8) of the Act.
    (b)(1) Each conference agreement that provides for a period of 
notice for independent action shall establish a fixed or maximum period 
of notice to the conference. A conference agreement shall not require 
or permit a conference member to give more than 5 calendar days' notice 
to the conference, except that in the case of a new or increased rate 
the notice period shall conform to the tariff publication requirements 
of this chapter.
* * * * *
    (d) A conference agreement shall not require a member who proposes 
independent action to attend a conference meeting, to submit any 
further information other than that necessary to accomplish the 
publication of the independent tariff item, or to comply with any other 
procedure for the purpose of explaining, justifying, or compromising 
the proposed independent action.
    (e) A conference agreement shall specify that any new rate or 
service item proposed by a member under independent action (except for 
exempt commodities not published in the conference tariff) shall be 
included by the conference in its tariff for use by that member 
effective no later than 5 calendar days after receipt of the notice and 
by any other member that notifies the conference that it elects to 
adopt the independent rate or service item on or after its effective 
date.
    (f)(1) * * * Additionally, if a party to an agreement chooses to 
take on an IA of another party, but alters it, such action is 
considered a new IA and must be published pursuant to the IA 
publication and notice provisions of the applicable agreement.
    (2) An IA TVR published by a member of a ratemaking agreement may 
be adopted by another member of the agreement, provided that the 
adopting member takes on the original IA TVR in its entirety without 
change to any aspect of the original rate offering (except beginning 
and ending dates in the time period) (i.e., a separate TVR with a 
separate volume of cargo but for the same duration). Any subsequent IA 
TVR offering which results in a change in any aspect of the original IA 
TVR, other than the name of the offering carrier or the beginning date 
of the adopting IA TVR, is a new independent action and shall be 
processed in accordance with the provisions of the applicable 
agreement. The adoption procedures discussed above do not authorize the 
participation by an adopting carrier in the cargo volume of the 
originating carrier's IA TVR. Member lines may publish and participate 
in joint IA TVRs, if permitted to do so under the terms of their 
agreement; however, no carrier may participate in an IA TVR already 
published by another carrier.
* * * * *
    23. Revise redesignated Sec. 535.802 to read as follows:


Sec. 535.802  Service contracts.

    (a) Carriers may not agree among themselves (whether on an 
enforceable basis or otherwise) to prohibit or restrict themselves from 
engaging in negotiations for service contracts with one or more 
shippers, and may not adopt any policy, practice, or procedures that 
have the effect of prohibiting or restricting such negotiations.
    (b) Carriers may not agree among themselves (whether on an 
enforceable basis or otherwise) to require

[[Page 69042]]

themselves 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 the Act to be published, and may not adopt any 
policy, practice, or procedures that have the effect of requiring such 
disclosures.
    (c) Carriers may not adopt mandatory rules or requirements 
affecting their rights to negotiate or enter into service contracts.
    (d) Carriers may adopt voluntary guidelines for service contracts. 
Voluntary guidelines are non-binding policies, outlines, directions or 
models for:
    (1) the contract terms a carrier or carriers may include in the 
texts of their individual contracts; or
    (2) the procedures that a carrier or carriers may follow in 
negotiating, modifying, or terminating contracts with shipper 
customers.
    (e) Carriers may consult voluntary guidelines as guidance for 
negotiating and considering service contracts. Whether voluntary 
guidelines are utilized shall be wholly at the option of the 
negotiating carrier. Voluntary guidelines must state explicitly the 
right of members of the agreement not to follow these guidelines.
    (f) Voluntary guidelines may not include commitments, policies, or 
procedures for: auditing by or reporting to agreement officials or 
other carriers regarding compliance with guideline terms or procedures; 
notification or pre-clearance of negotiations or proposed service 
contract terms with other carriers or agreement officials; or 
imposition or acceptance of any liability or sanction whatsoever for 
non-compliance with guideline terms.
    (g) Voluntary guidelines shall be submitted to the Director, Bureau 
of Economics and Agreement Analysis, Federal Maritime Commission, 
Washington, DC 20573. Use of voluntary guidelines prior to their 
submission is prohibited. Voluntary guidelines shall be kept 
confidential in accordance with section 535.608 of this part.
    (h) Carriers may adopt procedures for discussing, voting on, and 
administering agreement-wide or multi-carrier service contracts (and 
negotiations therefor). Such provisions shall be included in the 
parties' agreement filing with the Commission.
    24. Amend Subpart H--Mandatory and Prohibited Provisions by adding 
new Sec. 535.803 to read as follows:


Sec. 535.803  Ocean freight forwarder compensation.

    No conference or group of two or more ocean common carriers may
    (a) deny to any member of such conference or group the right, upon 
notice of not more than 5 calendar days, to take independent action on 
any level of compensation paid to an ocean freight forwarder; or
    (b) agree to limit the payment of compensation to an ocean freight 
forwarder to less than 1.25 percent of the aggregate of all rates and 
charges applicable under the tariff assessed against the cargo on which 
the forwarding services are provided.
    25. Amend Part IX of Appendix A to Part 535--Federal Maritime 
Commission Information Form for Certain Agreements by or among Ocean 
Common Carriers, by redesignating it as Part X.
    26. Amend Appendix A to Part 535 by adding new Part IX to read as 
follows:

Part IX

    For each agreement member line that served all or any part of the 
geographic area covered by the entire agreement during all or any part 
of the most recent 12-month period for which complete data are 
available, state the total number of service contract requests 
received, the total number adopted, and the total number denied. Of the 
total number of service contract requests received, adopted and denied, 
state how many were for Beneficial Cargo Owners, how many were for 
Ocean Transportation Intermediaries (formerly NVOCCs), how many were 
for Shippers' Associations, and how many were for any other shipper 
designation. The information should be provided in the format below:

                                                   Time Period
                                   [Same as that used in responding to Part V]
----------------------------------------------------------------------------------------------------------------
                                                                       Carrier A
                                      --------------------------------------------------------------------------
                                              Requested                 Adopted                   Denied
----------------------------------------------------------------------------------------------------------------
Beneficial Cargo Owner...............
Ocean Transportation Intermediary
 (formerly NVOCCs).
Shippers' Association................
Other*...............................
                                      --------------------------------------------------------------------------
     Total...........................
----------------------------------------------------------------------------------------------------------------
*  Identify type


----------------------------------------------------------------------------------------------------------------
                                                                       Carrier B
                                      --------------------------------------------------------------------------
                                              Requested                 Adopted                   Denied
----------------------------------------------------------------------------------------------------------------
Beneficial Cargo Owner...............
Ocean Transportation Intermediary
 (formerly NVOCCs).
Shippers' Association................
Other*...............................
                                      --------------------------------------------------------------------------
    Total............................
----------------------------------------------------------------------------------------------------------------
* Identify type

    27. Amend Appendix C to Part 535--Monitoring Report for Class A 
Agreements Between or Among Ocean Common Carriers FORM, by 
redesignating Part X as Part XI.

[[Page 69043]]

    28. Amend Appendix C to Part 535--Monitoring Report for Class A 
Agreements Between or Among Ocean Common Carriers FORM, by adding new 
Part X to read as follows:

Part X

    For each agreement member line, state the total number of service 
contract requests received, the total number adopted, and the total 
number denied during the calendar quarter. Of the total number of 
service contract requests received, adopted and denied during the 
calendar quarter, state how many were for Beneficial Cargo Owners, how 
many were for Ocean Transportation Intermediaries (formerly NVOCCs), 
how many were for Shippers' Associations, and how many were for any 
other shipper designation. The information should be provided in the 
format below:

                                                Calendar Quarter
----------------------------------------------------------------------------------------------------------------
                                                                       Carrier A
                                      --------------------------------------------------------------------------
                                              Requested                 Adopted                   Denied
----------------------------------------------------------------------------------------------------------------
Beneficial Cargo Owner...............
Ocean Transportation Intermediary
 (formerly NVOCCs).
Shippers' Association................
Other*...............................
                                      --------------------------------------------------------------------------
    Total............................
----------------------------------------------------------------------------------------------------------------
* Identify type


----------------------------------------------------------------------------------------------------------------
                                                                       Carrier B
                                      --------------------------------------------------------------------------
                                              Requested                 Adopted                   Denied
----------------------------------------------------------------------------------------------------------------
Beneficial Cargo Owner...............
Ocean Transportation Intermediary
 (formerly NVOCCs).
Shippers' Association................
Other*...............................
                                      --------------------------------------------------------------------------
    Total............................
----------------------------------------------------------------------------------------------------------------
* Identify type

    29. Amend Appendix D to Part 535--Monitoring Report for Class B 
Agreements Between or Among Ocean Common Carriers [FORM], by 
redesignating Part VI as Part VII.
    30. Amend Appendix D to Part 535--Monitoring Report for Class B 
Agreements Between or Among Ocean Common Carriers [FORM], by adding new 
Part VI to read as follows:

Part VI

    For each agreement member line, state the total number of service 
contract requests received, the total number adopted, and the total 
number denied during the calendar quarter. Of the total number of 
service contract requests received, adopted and denied during the 
calendar quarter, state how many were for Beneficial Cargo Owners, how 
many were for Ocean Transportation Intermediaries (formerly NVOCCs), 
how many were for Shippers' Associations, and how many were for any 
other shipper designation. The information should be provided in the 
format below:

                                                Calendar Quarter
----------------------------------------------------------------------------------------------------------------
                                                                       Carrier A
                                      --------------------------------------------------------------------------
                                              Requested                 Adopted                   Denied
----------------------------------------------------------------------------------------------------------------
Beneficial Cargo Owner...............
Ocean Transportation Intermediary
 (formerly NVOCCs).
Shippers' Association................
Other*...............................
                                      --------------------------------------------------------------------------
    Total............................
----------------------------------------------------------------------------------------------------------------
* Identify type


----------------------------------------------------------------------------------------------------------------
                                                                       Carrier B
                                      --------------------------------------------------------------------------
                                              Requested                 Adopted                   Denied
----------------------------------------------------------------------------------------------------------------
Beneficial Cargo Owner...............
Ocean Transportation Intermediary
 (formerly NVOCCs).
Shippers' Association................
Other*...............................
                                      --------------------------------------------------------------------------
    Total............................
----------------------------------------------------------------------------------------------------------------
*Identify type


[[Page 69044]]

    By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 98-33182 Filed 12-14-98; 8:45 am]
BILLING CODE 6730-01-P