[Federal Register Volume 64, Number 37 (Thursday, February 25, 1999)]
[Rules and Regulations]
[Pages 9281-9285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4585]


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FEDERAL MARITIME COMMISSION

46 CFR Part 525

[Docket No. 98-27]


Marine Terminal Operator Schedules

AGENCY: Federal Maritime Commission.

ACTION: Final rule.

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SUMMARY: The Federal Maritime Commission adds new regulations for 
marine terminal operator schedules 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.

DATES: This rule is effective May 1, 1999.

FOR FURTHER INFORMATION CONTACT:
Austin Schmitt, Director, Bureau of Tariffs, Certification and 
Licensing, Federal Maritime Commission, 800 North Capitol St., NW, Room 
940, Washington, DC 20573-0001, (202) 523-5796
Thomas Panebianco, General Counsel, Federal Maritime Commission, 800 
North Capitol St., NW, Room 1018, Washington, DC 20573-0001, (202) 523-
5740


[[Page 9282]]


SUPPLEMENTARY INFORMATION: On December 17, 1998, the Federal Maritime 
Commission (``Commission'') published a proposed rule to add new 
regulations, 46 CFR part 525, to implement changes made by the Ocean 
Shipping Reform Act of 1998 (``OSRA''), Pub. L. 105-258, 112 Stat. 
1902, and the Coast Guard Authorization Act of 1998, section 424 of 
Pub. L. 105-383, 112 Stat. 3411, to sections 3(15), 8(f), 8(g) and 
10(d) of the Shipping Act of 1984 (``1984 Act''), 46 U.S.C. app. 
section 1701 et seq., relating to marine terminal operators 
(``MTO(s)''). 63 FR 69603-69606, December 17, 1998. The proposed rule 
sets forth regulations for the publication of terminal schedules by 
MTOs. Interested parties were given the opportunity to submit comments 
on the proposed rule. The Commission received four comments, from (1) 
the Port of Philadelphia Marine Terminal Association, Inc. (``PMTA''), 
(2) the National Association of Waterfront Employers (``NAWE''), (3) 
the Port of Palm Beach District and Tampa Port Authority (``Ports of 
Palm Beach and Tampa'') jointly, and (4) American President Lines, Ltd. 
and APL Co. Pte Ltd. (``APL'') jointly.

Section 525.1  Purpose and Scope

    Section 515.1(c) sets forth an extensive list of definitions 
traditionally used by the Commission and the shipping industry in their 
day to day business. In particular Sec. 525.1(c)(19) defines the term 
``terminal services,'' which includes a list of terms that are 
themselves defined within the definition section. APL contends that the 
definition of ``terminal services'' itself should be revised, as well 
as several of the terms included within that definition because they do 
not ``seem to be used in the proposed rule in an operative way.'' APL 
at 1-2.
    APL argues that the definition of ``terminal services'' should not 
include the terms ``wharf demurrage'' and ``wharfage,'' because they 
are not services but rather are charges for services. Id. APL further 
contends that the term ``dockage'' in that definition should be changed 
to ``berthing'' to more correctly describe the service provided for 
that charge. Id. Finally, the terms ``terminal storage'' and ``wharf 
demurrage'' should be revised, APL avers, because the service referred 
to in each is the same. Id.
    The Commission has developed these definitions in conjunction with 
the shipping industry over time, and has consistently used them in 
other rulemakings. The definitions set forth in the rule are the 
traditional usage of such terms, not the operative usage as APL 
desires. Moreover, the rule allows MTOs to develop independent 
definitions of the terms included in the rule and any other term they 
wish to use, as long as those definitions are set forth in their 
terminal schedules and correlated to the definitions in the rule (see 
Sec. 525.1(c)(19)). As such, the Commission declines to delete or 
revise any of the definitions requested by APL.
    The definition of ``bulk cargo,'' Sec. 525.1(c)(3), is revised to 
reflect the definition currently in use in 46 CFR part 514 and to 
correlate with the definition in new 46 CFR part 520, Carrier Automated 
Tariff Systems.
    While the rule is straightforward in setting forth the regulations 
for the publication of terminal schedules of all marine terminal 
operators, in light of the comment discussed below regarding 
Sec. 525.2, the Commission is adding the following sentence to the end 
of subsection (c)(13): ``For the purposes of this part, marine terminal 
operator includes conferences of marine terminal operators.''

Section 525.2  Terminal Schedules

    PMTA expresses concern regarding the interpretation of part 525 and 
proposed 46 CFR part 535, Ocean Common Carrier and Marine Terminal 
Operator Agreements. It is seeking assurance that (1) part 535 applies 
only to agreements of ocean common carriers and MTOs, and to ocean 
common carrier tariffs, but not to ``[MTO] tariffs which are redesigned 
as `schedules;''' and (2) part 525 applies to all MTO schedules 
``whether the [MTO] is operating under an `agreement' . . . or not.'' 
PTMA at 2. PMTA correctly interprets the scope of part 525 to cover 
both individual MTO schedules and MTO conference schedules. Regulations 
relating to the agreements of marine terminal operators (other than the 
publication of MTO schedules) are located at part 535 (see 
Sec. 525.2(c)).

Section 525.3  Availability of Marine Terminal Operator Schedules

    Proposed Sec. 525.3(a)(2) requires MTOs who elect to make their 
schedules available to the public to make them available in electronic 
form. In the proposed rule the Commission specifically sought comments 
on whether there was a compelling reason for or against allowing MTOs 
to publish their terminal schedules in paper form. The Ports of Palm 
Beach and Tampa agree that MTOs should be required to publish their 
terminal schedules electronically; however, they argue that they should 
be allowed to publish their terminal schedules in a parallel paper 
form. Ports of Palm Beach and Tampa at 2-3. The Ports of Palm Beach and 
Tampa contend that electronic format is not universally accepted and, 
in fact, ``many of the companies and individuals who use [the Ports of 
Palm Beach and Tampa's] tariffs are not, at present, equipped to obtain 
access to an electronic form of tariff.'' Id. at 3. Furthermore, the 
Ports of Palm Beach and Tampa argue that continued use of paper 
schedules is vital because internal staff, who do not have access to 
computers, need to have hard copies of the terminal schedules in order 
to inspect them. Id.
    The Ports of Palm Beach and Tampa suggest that an MTO be able to 
make its terminal schedules available in electronic and paper form, 
with the electronic form being the binding form in the event that there 
is any discrepancy between the forms. Id. at 4. The Ports of Palm Beach 
and Tampa would add language to the rule to that effect, as well as 
language providing that paper copies of those schedules be available to 
the public upon request at a reasonable nondiscriminatory fee. Id.
    The Commission recognizes that there may be entities in the 
shipping industry who are unable to access electronic terminal 
schedules. The rule, as written, does not prohibit an MTO from 
maintaining parallel terminal schedules in paper form for its own 
purposes or the purposes of those entities. However, it is unnecessary 
to incorporate the Ports of Palm Beach and Tampa's suggested language 
into the final rule, since electronic schedules will be the required 
method of publication and as such will govern in the event of a 
conflict with any parallel paper form of terminal schedules which an 
MTO may choose to maintain and disseminate.
    Proposed Sec. 525.3(f) requires all MTOs subject to Commission 
jurisdiction to file Form FMC-1, a form by which MTOs identify 
themselves and the location of their terminal schedules, whether or not 
they make their terminal schedules available to the public. The 
Commission specifically requested comments on whether Form FMC-1 should 
be filed in electronic format on the Commission's website or in paper 
format. Furthermore, the rule proposed the Commission's publication, on 
its website, of the location of any terminal schedule made available to 
the public, and comments were requested.
    NAWE, the only commenter on this subsection, believes that Form 
FMC-1 should be filed electronically since ``virtually every terminal 
operator has the means to file electronically.'' NAWE at 1. NAWE 
suggests, however, that the Commission acknowledge receipt of an FMC-1 
form by electronic notification

[[Page 9283]]

to the MTO. Id. In light of this comment and the lack of any other 
comments on this issue, the Commission adds language to the final rule 
requiring all MTOs to file Form FMC-1 electronically via the 
Commission's website at www.fmc.gov.\1\ To the extent any MTO is unable 
to file pursuant to this process, it can seek a waiver from the 
Director, Bureau of Tariffs, Certification and Licensing (``BTCL''), to 
file by alternate means. The Commission, however, will not provide for 
electronic acknowledgment of the receipt of Form FMC-1. This Commission 
does not currently acknowledge receipt of other types of registration 
forms, and, in any event, MTOs and other filers of Form FMC-1 will be 
free to call BTCL, if they are concerned about the Commission's receipt 
of their form.
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    \1\ Form FMC-1 will be operational by April 1, 1999. This 
provides sufficient time for MTOs to comply by May 1, 1999.
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    NAWE also supports the Commission's proposal to publish a list, on 
its website, of the location of terminal schedules that are made 
available to the public. Id. at 2. This list would not, however, be so 
inclusive as to consist of all MTOs who file a Form FMC-1 with the 
Commission, contrary to NAWE's interpretation. See Id. While every MTO 
that is subject to Commission jurisdiction must file a Form FMC-1 with 
the Commission, not all of those MTOs will necessarily be making their 
terminal schedules available to the public. Therefore, the Commission's 
website will contain a list of MTOs who make their terminal schedules 
available to the public and the location where those schedules can be 
found. The Commission will not maintain on its website a list of those 
terminal schedules that are not made available to the public nor a list 
of the names of those MTOs.
    In this connection, NAWE argues that MTOs operating separate 
terminals in different states should be free to file FMC-1 forms on a 
terminal by terminal basis and should be free to withdraw their FMC-1 
forms on the same basis. Id. at 2. NAWE incorrectly interprets this 
section of the rule as being more intrusive and less flexible than it 
is. Again, the rule requires only that all MTOs subject to Commission 
jurisdiction file a Form FMC-1 so that the Commission can meet its 
regulatory mandate, regardless of the number of separate terminals 
operated. An MTO may amend the information published at its electronic 
location, at its discretion, without notifying the Commission. The only 
time an MTO needs to notify the Commission is if it changes any 
information filed in its FMC-1 form, such as its home office address, 
its telephone number, or its decision to cease or begin making terminal 
schedules available to the public through an electronic location.
    Finally, NAWE is concerned with the language in Sec. 525.3(f) that 
requires MTOs to file a Form FMC-1 with the Commission prior to the 
commencement of terminal operations because ``it would appear to deny 
an MTO that does not choose to file an FMC-1 for a particular terminal 
prior to the May 1, 1999 effective date of the Rule, the ability to 
file an FMC-1 form after this date while conducting ongoing 
operations.'' Id. at 2. Again, all MTOs subject to Commission 
jurisdiction must file a Form FMC-1 with the Commission. Thus, all MTOs 
which will be engaged in operations subject to the Commission's 
jurisdiction upon the effective date of this rule must file a Form FMC-
1 prior to May 1, 1999. Only those MTOs who begin operations that would 
be subject to Commission jurisdiction after the May 1, 1999 deadline 
would file a From FMC-1 after that date. The rule therefore requires 
that in order to properly regulate these entities the Commission must 
be notified of their existence before they begin operations subject to 
the Commission's jurisdiction, whether or not they plan to make their 
terminal schedules available to the public. The rule correctly reflects 
this requirement.
    Except for the changes reflected here, proposed 46 CFR part 525 
will be carried forward as a final rule.
    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., the Chairman of the Federal Maritime Commission has certified to 
the Chief Counsel for Advocacy, Small Business Administration, that the 
rule will not have a significant impact on a substantial number of 
small entities. In its Notice of Proposed Rulemaking, the Commission 
stated its intention to certify this rulemaking because the proposed 
changes affect only marine terminal operators, entities the Commission 
has determined do not come under the programs and policies mandated by 
the Small Business Regulatory Enforcement Fairness Act. No comments 
were received in this rulemaking process touching upon the issue. 
Therefore, the certification is continued.
    This regulatory action is not a ``major rule'' under 5 U.S.C. 
804(2).
    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.

List of Subjects in 46 CFR Part 525

    Freight, Harbors, Reporting and recordkeeping requirements, 
Warehouses.

    For the reasons discussed in the preamble, the Federal Maritime 
Commission adds part 525 to subchapter B, chapter IV of 46 CFR as 
follows:

PART 525--MARINE TERMINAL OPERATOR SCHEDULES

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. app. 1702, 1707, 1709, as amended by Pub. 
L. 105-258, 112 Stat. 1902, and Pub. L. 105-383, 112 Stat. 3411.


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.
    (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

[[Page 9284]]

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 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.


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, a 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

[[Page 9285]]

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.


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://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.

    By the Commission
Bryant L. VanBrakle,
Secretary.
[FR Doc. 99-4585 Filed 2-24-99; 8:45 am]
BILLING CODE 6730-01-M