[Federal Register Volume 70, Number 29 (Monday, February 14, 2005)]
[Notices]
[Pages 7503-7504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2796]


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FEDERAL MARITIME COMMISSION

[Docket No. 04-12]


Non-Vessel-Operating Common Carrier Service Arrangements

Served: February 8, 2005.

Order

    The Commission's rule exempting non-vessel-operating common 
carriers (NVOCCs) from the Shipping Act's tariff publication 
requirements, conditioned upon the filing of confidential service 
arrangements (NSAs), went into effect on January 19, 2005. 69 FR 75850 
(Dec. 20, 2004). The International Shippers' Association (ISA) and the 
American Institute for Shippers' Associations (AISA) have filed 
petitions seeking reconsideration of the new rule, and asking the 
Commission to stay the effectiveness of that rule.\1\ Both petitions 
were filed under Rule 261 of the Commission's Rules of Practice and 
Procedure; both also seek a waiver, under Rule 10, if the Commission 
finds them deficient under Rule 261.
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    \1\ ISA's petition was filed on January 7, 2005, and AISA's 
petition was filed on January 11. The 15 day comment periods for 
both petitions extended beyond the scheduled effective date of the 
new rule. See 46 CFR 502.74. However, neither petitioner requested a 
shorter comment period for consideration of its request for a stay. 
See 46 CFR 502.103 (time may be shortened ``for good cause'').
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    For the reasons set forth below, we summarily reject both 
petitions, pursuant to Rule 261. We further deny the requests for 
waiver under Rule 10, and deny the requests for stay as moot.

[[Page 7504]]

I. Background

    Both ISA and AISA participated in the NSA rulemaking by filing 
comments, and both objected to the Commission's determination not to 
allow NVOCCs, in their capacity as shippers, to enter into NSAs. They 
disagreed with the Commission's decision to define ``NSA shipper'' as 
excluding ``NVOCCs or shippers' associations whose membership includes 
NVOCCs.'' 46 CFR 531.3(o). ISA and AISA now contend that in the 
rulemaking process, the Commission failed to consider their arguments; 
acted beyond its statutory authority in enacting the new rule; failed 
to adequately analyze the rule's potential effects on competition 
between large NVOCCs and smaller NVOCCs; and improperly regulated the 
membership of shippers' associations.
    Two joint replies in opposition to the petitions were filed by the 
National Industrial Transportation League, United Parcel Service, BAX 
Global, FedEx Trade Networks Transport & Brokerage, the Transportation 
Intermediaries Association, C.H. Robinson Worldwide, and BDP 
International. The first joint reply addresses the two petitions' 
request for a stay of the rule's effective date, arguing that a stay is 
not warranted. The second joint reply contends that the substantive 
arguments advanced by the two petitioners are erroneous. In particular, 
the second joint reply argues that the Commission did make adequate 
findings concerning the new rule's potential effects on competition, 
and that the new rule is within the agency's statutory authority under 
section 16 of the Shipping Act, 46 U.S.C. app. 1715.

II. Discussion

    Both petitions were filed pursuant to the Commission's Rule 261. 
That rule provides:

    (a) Within thirty (30) days after issuance of a final decision 
or order by the Commission, any party may file a petition for 
reconsideration * * *. A petition will be subject to summary 
rejection unless it:
    (1) Specifies that there has been a change in material fact or 
in applicable law, which change has occurred after issuance of the 
decision or order;
    (2) Identifies a substantive error in material fact contained in 
the decision or order; or
    (3) Addresses a finding, conclusion or other matter upon which 
the party has not previously had the opportunity to comment or which 
was not addressed in the briefs or arguments of any party. Petitions 
which merely elaborate upon or repeat arguments made prior to the 
decision or order will not be received. A petition shall be verified 
if verification of the original pleading is required and shall not 
operate as a stay of any rule or order of the Commission.

46 CFR 502.261(a).
    We conclude that the two petitions have failed to meet any one of 
these standards. First, neither petition alleges that there has been a 
``change in material fact or in applicable law'' subsequent to the 
issuance of the Commission's new rule. Neither petition cites an 
intervening judicial decision published subsequent to the issuance of 
the Commission's rule, nor to any alleged changes in material fact.
    Second, neither petition seeks to identify ``a substantive error in 
material fact'' within the Commission's new rule. On the contrary, both 
petitions contend that the Commission reached an erroneous legal 
conclusion. As the text of Rule 261 makes clear, however, this is not 
an acceptable ground for seeking reconsideration.
    Finally, neither ISA nor AISA contends that it did not have the 
opportunity to comment on any provision of the rule. Indeed, AISA even 
incorporates by reference its previously filed comments, in lieu of 
reiterating them. See AISA Petition at 2.
    Pursuant to the standards of Rule 261, both petitions will be 
summarily rejected. See 46 CFR 502.261 (petitions failing to meet 
threshold standard for reconsideration ``will be'' summarily rejected). 
Both petitioners also request, if their petitions are deemed subject to 
summary rejection, that the Commission instead grant a waiver of Rule 
261's requirements, pursuant to Rule 10. That rule provides:

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

46 CFR 502.10.
    Neither petition sets forth an argument why summary rejection would 
constitute ``undue hardship'' or ``manifest injustice,'' and neither 
contends that the ``expeditious conduct of business'' requires a 
waiver. Accordingly, the Commission concludes that ``undue hardship'' 
or ``manifest injustice'' will not arise from the summary rejection of 
the two petitions for reconsideration. The requests for a waiver are 
denied.
    Finally, both petitions ask the Commission to stay the effective 
date of the new rule. As mentioned, the rule went into effect on 
January 19. The requests for stay are denied as moot.

III. Conclusion

    We summarily reject the two petitions for reconsideration, decline 
to authorize a waiver under Rule 10, and deny the requests for stay as 
moot.
    Therefore, it is ordered, That the petitions are denied.

    By the Commission.
Karen V. Gregory,
Assistant Secretary.
[FR Doc. 05-2796 Filed 2-11-05; 8:45 am]
BILLING CODE 6730-01-P