[Federal Register Volume 79, Number 183 (Monday, September 22, 2014)]
[Rules and Regulations]
[Pages 56522-56523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22426]


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FEDERAL MARITIME COMMISSION

46 CFR Part 515

[Docket No. 14-08]
RIN 3072-AC56


Procedure for Public Notification of Ocean Transportation 
Intermediary Licensing Activity

AGENCY: Federal Maritime Commission.

ACTION: Direct final rule; confirmation of effective date and response 
to public comment.

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SUMMARY: The Federal Maritime Commission (FMC or Commission) is 
confirming the effective date of the direct final rule published on 
July 24, 2014, and responds to the comment received. The rule changes 
the method the Commission uses to provide public notice of Ocean 
Transportation Intermediary (OTI) license applications, revocations and 
suspensions by publishing this information on the FMC's official public 
Web site rather than publishing the same information in the Federal 
Register. This change provides more timely public notification of 
official FMC action on OTI licensing matters, simplifies the 
Commission's business processes, and reduces agency administrative 
costs.

DATES: The direct final rule published July 24, 2014, at 79 FR 42986, 
is effective on September 22, 2014.

FOR FURTHER INFORMATION CONTACT: Karen V. Gregory, Secretary, Federal 
Maritime Commission, 800 N. Capitol Street NW., Washington, DC 20573-
0001, (202) 523-5725, Fax (202) 523-0014, Email: [email protected].

SUPPLEMENTARY INFORMATION: While not statutorily mandated, current 
Commission rules require Federal Register (FR) notice for both OTI 
license applications, 46 CFR 515.12, and revocation or suspension of 
OTI licenses, 46 CFR 515.16. The Commission has historically used the 
FR to provide public notice of OTI licensing activity long before the 
emergence and wide-spread use of the internet and before courts began 
to often treat information on official government Web sites as proper 
items for judicial notice.
    Section 19(c) of the Shipping Act, 46 U.S.C. 40903, requires that 
notice be provided prior to suspension or revocation of an OTI license. 
The Administrative Procedures Act (APA), 5 U.S.C. 558, provides that an 
agency must, when acting to withdraw, or annul a license required by 
law, provide notice in writing of (1) the facts or conduct warranting 
the action, and (2) opportunity for the licensee to demonstrate 
compliance with the law. Neither the APA, nor the Freedom of 
Information Act, 5 U.S.C. Sec.  552(a)(1)(A), specify that notice must 
be published in the FR. Nonetheless, current Commission rules require 
FR notice for both OTI license applications, 46 CFR 515.12, and 
revocation or suspension of OTI licenses, 46 CFR 515.12.
    Consequently, in the direct final rule published July 24, 2014 (79 
FR 42986) the Commission amended its regulations to change the method 
by which it provides notice of OTI

[[Page 56523]]

licensing matters by publishing the information it currently publishes 
in the FR on the FMC's public Web site.
    The Commission received one comment to the direct final rule from 
UPS Ocean Freight Services, Inc., a licensed non-vessel-operating 
common carrier (NVOCC); UPS Europe SPRL, a registered foreign NVOCC; 
UPS Asia Group Pte. Ltd., a registered foreign NVOCC; and UPS Supply 
Chain Solutions, Inc., a licensed freight forwarder (collectively 
``UPS'').
    UPS voiced concern that adoption of the direct final rule and ``. . 
. reliance solely on a Web site, without the formal record and 
archiving functions of Federal Register notices, places the general 
shipping public, and licensed or registered OTIs in particular, at risk 
when making or accepting ocean freight bookings with shipper OTIs.'' 
UPS noted the Shipping Act requirements contained in 46 U.S.C 41104(11) 
and (12) as well as the Commission's regulations that prohibit 
accepting cargo for transport, entering into a service contract, or 
entering into arrangements with an unlicensed person. In this regard, 
UPS raised concern about reliance on the ``current [FMC] Web site OTI 
listing'' and noted that it does not appear to be a resource like the 
FR that can be researched to determine the exact date on which the 
Commission took action with respect to the status of an OTI. UPS is 
concerned that ``if a carrier or forwarder is challenged by the 
Commission staff with respect to the lawfulness of a particular booking 
accepted from a shipper OTI, the exact date of such shipper OTI's 
licensing or disqualification can be established with reference to a 
source of which judicial notice will be taken.''
    The Commission appreciates UPS's comments and concerns and 
addresses those concerns by clarifying the effect of the proposed rule. 
UPS's comments suggest that they believe adoption of this change will 
result in replacing the OTI licensing information the Commission has 
historically published in the FR solely with the information maintained 
and listed on the Commission's Ocean Transportation Intermediaries 
(OTI) List at http://www2.fmc.gov/oti/. This is not the Commission's 
intention.
    In changing its publication method from FR publication to Web site 
publication pursuant to the direct final rule, the Commission plans to 
create a new, dedicated Web page where it will continue to publish the 
same OTI licensing information that it has historically published in 
the FR, i.e., date of application, license number, applicant name, 
applicant address, type of application, date of revocation, and reason 
for revocation. The Commission will also create new Web pages to 
archive older OTI licensing activity postings for easy reference and 
historical research so the public and particularly carriers and OTIs 
can determine the exact, official date the Commission took an action 
with respect to the licensing status of an OTI. Therefore, the same OTI 
licensing activity information that the Commission historically 
published in the FR will now be published and searchable on the FMC's 
public Web site including archived postings.
    The Commission acknowledges that courts take judicial notice of 
documents published in the FR with ease. Information on official 
government Web sites has often been treated as proper content for 
judicial notice because the nature of the material posted lends itself 
to meeting the requirements under Federal Rule of Evidence 201(b). 
Paralyzed Veterans of Am. v. McPherson, 2008 U.S. Dist. LEXIS 69542, at 
*16-17 (N.D. Cal. 2008).
    After careful review and consideration of UPS's comment submitted 
in response to the direct final rule, the Commission has determined 
that no further rulemaking action is necessary. Therefore, the direct 
final rule published July 24, 2014 (79 FR 42986) will become effective 
as scheduled on September 22, 2014.

    By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2014-22426 Filed 9-19-14; 8:45 am]
BILLING CODE 6730-01-P