[Federal Register Volume 69, Number 175 (Friday, September 10, 2004)]
[Notices]
[Pages 54788-54789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20475]



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FEDERAL MARITIME COMMISSION

[Petition Nos. P3-03, P5-03, P7-03, P8-03, P9-03, P1-04, P2-04, P4-04]


Petition of United Parcel Service, Inc. for Exemption; Petition 
of the National Customs Brokers and Forwarders Association of America, 
Inc. for Limited Exemption; Petition of Ocean World Lines, Inc. for 
Rulemaking; Petition of BAX Global, Inc. for Rulemaking; Petition of 
C.H. Robinson Worldwide, Inc. for Exemption; Petition of Danzas 
Corporation d/b/a Danmar Lines Ltd., Danzas AEI Ocean Services, and DHL 
Danzas Air and Ocean for Exemption; Petition of BDP International, Inc. 
for Exemption; Petition of FEDEX Trade Networks Transport & Brokerage, 
Inc. for Exemption.

Served: September 2, 2004.

Order

I. Introduction

    On August 2, 2004, the National Industrial Transportation League 
(``NITL''), United Parcel Service, Inc. (``UPS''), BAX Global Inc. 
(``BAX''), FEDEX Trade Networks Transport & Brokerage, Inc. 
(``FEDEX''), Transportation Intermediaries Association (``TIA''), C.H. 
Robinson Worldwide, Inc. (``CHRW''), and BDP International, Inc. 
(collectively, ``Movants'') filed a Motion for Leave (``Motion'') 
pursuant to Rule 73, 46 CFR 502.73, in the proceedings referenced above 
to file Joint Supplemental Comments Requesting Expedited Adoption of a 
Conditional Exemption from Tariff Publication (``Supplemental 
Comments''). Conceding that the comment period for these proceedings is 
closed, Movants nonetheless seek acceptance of the Supplemental 
Comments into the record, claiming that the comments reflect an 
updated, unified version of the various forms of relief requested in 
the original individual petitions.
    Interested persons were given until August 20, 2004, to file 
replies on the Motion, and five were received. The World Shipping 
Council (``WSC''), American President Lines, Ltd. (``APL''), the U.S. 
Department of Transportation (``DOT'') and Danzas Corporation d/b/a 
Danmar Lines Ltd., Danzas AEI Ocean Serves, and DHL Danzas Air and 
Ocean (``Danzas'') filed replies in support of the Motion. Ocean World 
Lines (``OWL'') filed a reply in opposition.
    The Commission hereby grants the Motion, accepts the Supplemental 
Comments, and invites interested persons to respond to the Supplemental 
Comments by September 30, 2004.

II. Motion and Supplemental Comments

    Movants submit that they have engaged in ``substantial 
discussions'' over the past several months that have resulted in a 
unified approach to the pending NVOCC tariff publication exemption 
proceedings. They believe that the Commission should be informed of 
this approach, as it is intended to give ``clear direction'' to the 
Commission in its deliberations on the petitions. Supplemental Comments 
at 2-3.
    Movants note that the motion and corresponding comments do not 
constitute a withdrawal of the existing petitions. Supplemental 
Comments at 2 n.2. Movants submit that any Commission action on the 
proposed conditional tariff exemption should not supercede 
consideration of petitioners' requested relief from the tariff 
publication requirements. Id.
    Reiterating their concerns submitted in the pending petitions and 
comments that the current regulatory scheme undermines competitiveness 
in the shipping industry, Movants request that the Commission use its 
authority under section 16 of the Shipping Act to exempt certain NVOCC 
agreements with shippers from the tariff publication requirements in 
sections 8(a), (b), (d) and (e) of the Shipping Act and 46 CFR Part 520 
of the Commission's Rules and Regulations, as well as the tariff-
related prohibited acts found in sections 10(b)(1), (2), (4) and (8) of 
the Shipping Act. Supplemental Comments at 3, Appendix 1. The proposed 
exemption would apply to any written agreements between an NVOCC and 
shipper (excluding bills of lading, receipts or other transport 
documents), where the shipper pledges to provide a specific volume/
portion of cargo over a fixed time period while the NVOCC commits to a 
defined rate and service level. Id. According to Movants, the proposed 
exemption would be subject to the following conditions: (1) The 
agreements and their essential terms must be filed confidentially with 
the Commission; \1\ (2) the NVOCC must publish, in tariff format, the 
origin and destination port ranges, commodity involved, minimum volume/
portion, and duration of the agreement; and (3) the Commission would 
retain jurisdiction to the same extent as it does over service 
contracts under the Shipping Act. Id.
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    \1\ The essential terms would include: (1) Origin and 
destination port ranges; (2) origin and destination geographic areas 
in the case of through intermodal movements; (3) list of 
commodities; (4) minimum volume/portion; (5) line-haul rate; (6) 
duration; (7) service commitments; (8) liquidated damages for non-
performance. Id.
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    Movants also assert that the elements of the conditional tariff 
exemption are based upon the requested relief submitted in the original 
petitions and are therefore not novel. Supplemental Comments at 3. As 
such, they aver that the Commission need not seek any further inquiry 
on the matter and should find the exemption to be ``justified'' based 
upon the ``substantial evidence'' already developed in the record. 
Movants urge the Commission to take immediate action to adopt the 
exemption. Id. at 3-4.

III. Replies

    WSC submitted a reply to the Commission on August 17, 2004. Because 
the Supplemental Comments appear to address WSC's concern that the 
original petitions were vague and inconsistent, WSC claims that it does 
not oppose the Motion as long as interested persons are provided a 
reasonable amount of time to comment on Movants' proposed tariff 
exemption. According to WSC, its Board of Directors and general 
membership are scheduled to meet in mid-September. As such, WSC 
requests that the comment period be set for September 30, 2004, and 
notes that Movants have authorized WSC counsel to represent that they 
have no objection to this date. WSC Reply at 2-3. On August 19, 2004, 
APL submitted a one-line reply expressing its support of WSC's 
position. APL Reply at 1. DOT also filed a reply indicating its support 
of WSC's position. DOT Reply at 1-2.
    On August 17, 2004, Danzas, petitioner in Petition P1-04, submitted 
a reply in support of the Motion as it affects its own petition. Danzas 
asserts that the Motion serves as a ``consensus position'' to the many 
diverse requests for relief under consideration by the Commission and 
could be useful in expediting the deliberation process on the 
petitions. Danzas Reply at 2. As such, Danzas asserts that the 
Commission should reopen the comment period under Rule 10 of the 
Commission's Rules of Practice and Procedure, 46 CFR 502.10, which 
allows the Commission to waive rules in particular cases ``if 
expeditious conduct of business so requires,'' except where such a 
waiver would be inconsistent with any statute.
    OWL, petitioner in Petition P7-03, filed its reply on August 18, 
2004. OWL contends that granting the Motion would unnecessarily delay 
the proceedings not only by reopening the comment period, but also by 
diverting

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the Commission's attention and resources from taking final action on 
the petitions to crafting a response to the instant request. OWL Reply 
at 2. Because the new, unified proposal differs from the varying relief 
sought by individual petitioners who are also parties to this Motion, 
OWL argues that it would be more appropriate for Movants to file a new 
petition. Id. OWL also claims that the Motion provides no compelling 
reason to reopen the comment period, as the only new fact that will be 
contributed to the already voluminous record is ``that they have agreed 
among themselves that they now want the exact same thing.'' Id. at 3.

IV. Discussion

    While OWL's concerns of delay are well-taken, the deliberation 
process requires a full, up-to-date picture of the participants' 
positions.\2\ Because the Supplemental Comments provide a unified, 
tangible proposal to the overarching NVOCC tariff publication exemption 
matter, the granting of this Motion and the acceptance of the comments 
into the record may serve to advance an administratively final decision 
rather than postpone one.
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    \2\ We should note that NITL and TIA did not file petitions 
before the Commission, but instead have commented on other persons' 
petitions.
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    The Commission has determined to grant the Motion, accept the 
Supplemental Comments into the record, and allow interested persons to 
respond to the Supplemental Comments by September 30, 2004. Interested 
persons are requested to submit their views or arguments in reply to 
the Supplemental Comments no later than September 30, 2004. Comments 
shall consist of an original and 15 copies, and shall be directed to 
the Secretary, Federal Maritime Commission, 800 North Capitol Street, 
NW., Washington, DC 20573-0001. It is also requested that a copy be 
submitted in electronic form (WordPerfect, Word or ASCII) on diskette, 
or e-mailed to [email protected]. The Commission has also determined to 
waive the service requirements found at 46 CFR 502.114(b). Instead, 
copies of all filed comments may be viewed on the Commission's Web page 
at http://www.fmc.gov.

Conclusion

    Therefore, it is ordered, That Movants' Motion is granted and the 
Joint Supplemental Comments are accepted into the record;
    It is further ordered, That the Commission waives the service 
requirements found at 46 CFR 502.114(b) for any responses to the Joint 
Supplemental Comments. Interested persons may respond to the Joint 
Supplemental Comments until September 30, 2004.

    By the Commission.
Bryant L. VanBrakle,
Secretary.
[FR Doc. 04-20475 Filed 9-9-04; 8:45 am]
BILLING CODE 6730-01-P