[Federal Register Volume 84, Number 196 (Wednesday, October 9, 2019)]
[Proposed Rules]
[Pages 54087-54093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21537]
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FEDERAL MARITIME COMMISSION
46 CFR Parts 503, 515, and 535
[Docket No. 19-06]
RIN 3072-AC77
Regulatory Amendments Implementing the Frank LoBiondo Coast Guard
Authorization Act of 2018
AGENCY: Federal Maritime Commission
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Maritime Commission (Commission) proposes to
revise its regulations to implement the provisions of the Frank
LoBiondo Coast Guard Authorization Act of 2018. The proposed revisions
include amendments to the regulations governing Commission meetings,
ocean transportation intermediary licensing, financial responsibility,
and general duties, and the submission of public comments on ocean
common carrier and marine terminal operator agreements.
DATES: Submit comments on or before November 8, 2019.
ADDRESSES: You may submit comments, identified by Docket No. 19-06, by
the following methods:
Email: [email protected]. For comments, include in the
subject line: ``Docket No. 19-06, Comments on LoBiondo Act Regulatory
Amendments.'' Comments should be attached to the email as a Microsoft
Word or text-searchable PDF document. Only non-confidential and public
versions of confidential comments should be submitted by email.
Mail: Rachel E. Dickon, Secretary, Federal Maritime
Commission, 800 North Capitol Street NW, Washington, DC 20573-0001.
Instructions: For detailed instructions on submitting comments,
including requesting confidential treatment of comments, and additional
information on the rulemaking process, see the Public Participation
heading of the Supplementary Information section of this document. Note
that all comments received will be posted without change to the
Commission's website, unless the commenter has requested confidential
treatment.
Docket: For access to the docket to read background documents or
comments received, go to the Commission's Electronic Reading Room at:
https://www2.fmc.gov/readingroom/proceeding/19-06/, or to the Docket
Activity Library at 800 North Capitol Street NW, Washington, DC 20573,
between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal
holidays. Telephone: (202) 523-5725.
[[Page 54088]]
FOR FURTHER INFORMATION CONTACT: Rachel E. Dickon, Secretary; Phone:
(202) 523-5725; Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Background
III. Proposed Changes
A. References to Statutory Provisions (Parts 515, 530, 532, 545)
B. Commission Meetings (Part 503)
C. OTI Licensing, Financial Responsibility, and General Duties
(Part 515)
1. Licensing and Financial Responsibility
2. Common Carrier Prohibitions
D. Comments on Filed Agreements (Part 535)
IV. Public Participation
V. Rulemaking Analyses and Notices
I. Introduction
On December 4, 2018, the ``Frank LoBiondo Coast Guard Authorization
Act of 2018'' was enacted as Public Law 115-282 (LoBiondo Act or Act).
The LoBiondo Act made a number of changes affecting the Federal
Maritime Commission (Commission) and the Shipping Act of 1984 (Shipping
Act). These included the changes made in Title VII of the Act, referred
to as the ``Federal Maritime Commission Authorization Act of 2017,'' as
well as a miscellaneous provision in Sec. 834 of the LoBiondo Act.
These changes were summarized by Commission staff at the Commission's
May 1, 2019 meeting.\1\ In this rulemaking, the Commission is focusing
on the statutory changes that warrant corresponding revisions to the
Commission's regulations. The proposed changes include:
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\1\ Meeting of the Federal Maritime Commission (May 1, 2019)
(video available at https://www.youtube.com/watch?v=gqpPJ3ATjS4&t=57m40s).
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Revising several Commission regulations to update
references to statutory provisions;
Revising the regulations governing Commission meetings to
include provisions on ``nonpublic collaborative discussions,'' a new
type of meeting established by the LoBiondo Act that is not open to
public observation;
Revising the regulations governing ocean transportation
intermediary (OTI) \2\ licensing and financial responsibility to
reflect statutory changes to the types of persons that are required to
be licensed and maintain a bond, insurance, or other surety;
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\2\ OTIs include non-vessel-operating common carriers (NVOCCs)
and ocean freight forwarders (OFFs). 46 U.S.C. 40102(20).
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Revising the regulations governing the general duties of
non-vessel-operating common carriers (NVOCCs) to reflect amendments to
several prohibited acts; and
Revising the regulations related to comments on filed
ocean common carrier and marine terminal operator (MTO) agreements to
reflect that such comments are now confidential and may not be
disclosed by the Commission;
The Commission is seeking comment on these proposed revisions and any
others necessary to implement the statutory changes described below.
Although beyond the scope of this current rulemaking, the
Commission also invites comments on any regulatory changes necessary to
implement other LoBiondo Act provisions not discussed in this NPRM.\3\
Such comments may be considered by the Commission in determining
whether additional regulatory changes should be made in a future
rulemaking.
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\3\ For example, Sec. 834 of the LoBiondo Act amended 46 U.S.C.
3503 to exempt old passenger vessels that operate within inland
waterways from the requirement that they be constructed of fire-
retardant materials, provided certain conditions are met. One of
those conditions is that the vessel owner acquire and maintain
liability insurance in an amount to be prescribed by the Federal
Maritime Commission. 46 U.S.C. 3503(b)(1)(C). The Commission is
currently considering what actions are necessary to implement this
provision and is not including any proposed regulatory changes as
part of this rulemaking.
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II. Proposed Changes
A. References to Statutory Provisions (Parts 515, 530, 532, 545)
The LoBiondo Act amended 46 U.S.C. 41104 to revise several
prohibited acts and added a new prohibited act. Public Law 115-282,
708. As part of those amendments, the Act changed the subsection
designations in Sec. 41104. The Commission is therefore proposing to
revise its regulations to reflect the new subsection designations.
B. Commission Meetings (Part 503)
The LoBiondo Act amended 46 U.S.C. 303 to exclude certain
Commission meetings from the requirements of the Government in the
Sunshine Act (5 U.S.C. 552b). Public Law 115-282, 711(a). Under the
revised statute, a majority of Commissioners may hold a meeting closed
to the public to discuss Commission business if: (1) No vote or
official Commission action is taken at the meeting; (2) only
Commissioners and employees are present; (3) at least one Commissioner
from each political party is present (assuming there are sitting
Commissioners from more than one party); and (4) the Commission's
General Counsel is present. 46 U.S.C. 303(c).\4\ The statute refers to
these closed meetings as ``nonpublic collaborative discussions.''
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\4\ This exclusion was modeled on a similar provision in the
Surface Transportation Board Reauthorization Act of 2015. See S.
Rep. No. 115-89 at 19 (2017) (accompanying S. 1129, an earlier
authorization bill that contained many of the provisions later
incorporated into the LoBiondo Act); 49 U.S.C. 1303(a)(2).
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Although the Commission need not publicize such meetings beforehand
or record a complete transcript or minutes, the Commission must,
following the meeting, make publicly available a list of individuals
present at the meeting and a summary of matters discussed, except for
those matters the Commission determines may be withheld from the public
under one of the applicable exemptions listed in the Sunshine Act Sec.
303(c)(2)-(3). For those matters withheld from the public, the
Commission must provide a summary with as much general information as
possible. Sec. 303(c)(3). The required disclosures must be made within
two business days after the meeting, unless the meeting relates to an
ongoing proceeding before the Commission, in which case the disclosures
must be made on the date of the final Commission decision. Sec.
303(c)(2), (4); see S. Rep. No. 115-89 at 19.
Finally, the Act includes provisions clarifying that: (1) The
Sunshine Act continues to apply to all meetings other than nonpublic
collaborative discussions as described in Sec. 303(c), as well as to
any information related to those discussions that the Commission
proposes to withhold from the public; and (2) the provisions governing
nonpublic collaborative discussions do not authorize the Commission to
withhold records accessible to an individual under the Privacy Act of
1974 (5 U.S.C. 552a). Sec. 303(b)(5)-(6).
The Commission is proposing to include a new section, Sec. 503.84,
in part 503 of its regulations mirroring the new provisions in 46
U.S.C. 303(c)(1)-(4) and to make necessary conforming revisions to
other sections in that part.
C. OTI Licensing, Financial Responsibility, and General Duties (Part
515)
1. Licensing and Financial Responsibility
The LoBiondo Act amendments expanded the class of persons that must
be licensed as OTIs and meet the OTI financial responsibility
requirements to include persons that advertise or hold themselves out
as OTIs. 46 U.S.C. 40901(a); 40902(a); Public Law 115-282, 707(a), (c).
Previously, only persons that acted as OTIs were subject to the
[[Page 54089]]
licensing and financial responsibility requirements.
The Commission is proposing to amend the general licensing and
financial responsibility requirements in Sec. 515.3 and Sec. 515.21
to reflect this change. The Commission expects this change to have
minimal, if any, effects on the universe of entities that must meet the
licensing and financial responsibility requirements. In general, an
entity that advertises or holds itself out as an OTI also acts as an
OTI, and the practical effect of the change is to make it easier for
the Commission to enforce the licensing and financial responsibility
requirements and prosecute noncompliant OTIs. Instead of having to show
that a noncompliant entity actually acted as an OTI, the mere fact that
an unlicensed entity advertised or held itself out as an OTI is now
sufficient to show a violation of the statute.
The LoBiondo Act also includes a new provision clarifying that the
OTI licensing and financial responsibility requirements do not apply to
a person ``that performs [OTI] services on behalf of an [OTI] for which
it is a disclosed agent.'' 46 U.S.C. 40901(c); Public Law 115-282,
707(b). This provision appears to codify the holding in Landstar
Express Am. v. Fed. Mar. Comm'n, 569 F.3d 493 (D.C. Cir. 2009), in
which the D.C. Circuit held that ``[a]gents providing NVOCC services
for licensed NVOCC principals are not NVOCCs (or OFFs) solely by virtue
of being agents of NVOCCs,'' ``[t]hey therefore fall outside the
coverage of the statute's licensing requirement,'' and ``[t]he
Commission lacks authority to compel those agents to obtain licenses.''
569 F.3d at 500. The Commission's regulations at Sec. 515.4(b) already
exclude agents of licensed OTIs from the licensing requirements, and
the Commission is proposing minor revisions to that section to reflect
the language of the new statutory provision.
The language of the new provision, however, is arguably broader
than the holding in Landstar, which was focused on agents of licensed
NVOCCs. The new Sec. 40901(c) excludes agents of any OTI from the
licensing and financial responsibility requirements, and does not
distinguish between agents of licensed and unlicensed OTIs. The
Commission has therefore tentatively determined that this statutory
change may conflict with the Commission's regulations at 46 CFR 515.3
requiring that only licensed OTIs may act as agents to provide OTI
services in the United States for foreign-based, registered NVOCCs
(which are not licensed). The Commission seeks comment on whether to
remove this requirement.
2. Common Carrier Prohibitions
The LoBiondo Act also expands the common carrier prohibition
against knowingly and willfully accepting or transporting cargo for
OTIs that do not meet certain Shipping Act requirements. See 46 U.S.C.
41104(a)(11); Public Law 115-282, 708(a)(2)(A). Previously, common
carriers were prohibited from knowingly and willfully accepting or
transporting cargo for an OTI that did not have a tariff and did not
meet the OTI financial responsibility requirements. See 46 U.S.C.
41104(11) (2017). This wording limited the prohibition to dealing with
noncompliant NVOCCs, as OFFs are not required to have a tariff. See 46
CFR 515.19(g)(1)(vii); 515.27(a). The LoBiondo Act split the provision
into two separate prohibitions in 46 U.S.C. 41104(a)(11). The first
prohibits common carriers from knowingly and willfully accepting or
transporting cargo from an NVOCC that does not have a tariff. The
second prohibits common carriers from knowingly and willfully accepting
or transporting cargo from an OTI (i.e., NVOCC or OFF) that does not
meet the financial responsibility requirements.
The Commission's regulations at 46 CFR 515.19 and 515.27 reflect
the earlier version of the prohibition (accepting or transporting cargo
for noncompliant NVOCCs). The Commission is therefore proposing to
amend these sections to reflect the new, broader statutory prohibition.
D. Comments on Filed Agreements (Part 535)
The LoBiondo Act made several changes to the provisions governing
Commission action on agreements. In particular, the LoBiondo Act
expanded on the existing requirement that the Commission transmit a
notice of an agreement filing to the Federal Register within seven
days, adding a requirement that the Commission request interested
persons to submit relevant information and documents. 46 U.S.C.
40304(a)(2); Public Law 115-282, 706(a). Although the Commission
already includes such requests in its Federal Register notices, see 46
CFR 535.603, adding this provision renders such comments confidential
under 46 U.S.C. 40306, which exempts ``[i]nformation and documents . .
. filed with the . . . Commission under [chapter 403]'' from disclosure
under the Freedom of Information Act. Previously, only information
provided by the filing parties was protected from disclosure under
Sec. 40306. See Final Rule: Rules Governing Agreements by Ocean Common
Carriers and Other Persons Subject to the Shipping Act of 1984, 49 FR
45320, 45336 (Nov. 15, 1984) (interpreting the provision (as originally
enacted in the Shipping Act of 1984) as only protecting information
provided by the filing parties).
In addition, the Act includes a saving clause stating that nothing
in Sec. 706 of the Act or the amendments made to 46 U.S.C. 40304 may
be construed to prescribe a specific deadline for the submission of
relevant information and documents from interested persons in response
to a request for comment on an agreement filing. Public Law 115-282,
706(c).
The Commission is proposing to revise its regulations in part 535
to address these changes. In particular, the Commission proposes to
revise the procedures for submitting comments on filed agreements in
Sec. 535.603 to reflect that such comments are exempt from disclosure
under FOIA and to make conforming changes to the list of confidentially
submitted material in Sec. 535.608. The Commission also proposes to
revise the Federal Register notice requirements in Sec. 535.602 to
reflect the saving clause, namely that the Shipping Act may not be
construed as prescribing a deadline for the submission of comments on
filed agreements. Specifically, under revised Sec. 535.602, Federal
Register notices would no longer include a ``final date'' or rigid
deadline for filing comments; rather, notices would include a date by
which comments are most useful for the Commission's analysis of an
agreement within the statutory 45-day review period. Comments received
before that date would be considered by the Commission and staff in
making determinations within the 45-day review period, while comments
received after that date may be considered, to the extent practicable,
within the 45-day review period or as part of the Commission's
continuing review of the agreement after the 45-day period.
III. Public Participation
How do I prepare and submit comments?
Your comments must be written and in English. To ensure that your
comments are correctly filed in the docket, please include the docket
number of this document in your comments.
You may submit your comments via email to the email address listed
above under ADDRESSES. Please include the
[[Page 54090]]
docket number associated with this notice and the subject matter in the
subject line of the email. Comments should be attached to the email as
a Microsoft Word or text-searchable PDF document. Only non-confidential
and public versions of confidential comments should be submitted by
email.
You may also submit comments by mail to the address listed above
under ADDRESSES.
How do I submit confidential business information?
The Commission will provide confidential treatment for identified
confidential information to the extent allowed by law. If your comments
contain confidential information, you must submit the following by mail
to the address listed above under ADDRESSES:
A transmittal letter requesting confidential treatment
that identifies the specific information in the comments for which
protection is sought and demonstrates that the information is a trade
secret or other confidential research, development, or commercial
information.
A confidential copy of your comments, consisting of the
complete filing with a cover page marked ``Confidential-Restricted,''
and the confidential material clearly marked on each page. You should
submit the confidential copy to the Commission by mail.
A public version of your comments with the confidential
information excluded. The public version must state ``Public Version--
confidential materials excluded'' on the cover page and on each
affected page, and must clearly indicate any information withheld. You
may submit the public version to the Commission by email or mail.
Will the Commission consider late comments?
The Commission will consider all comments received before the close
of business on the comment closing date indicated above under DATES. To
the extent possible, we will also consider comments received after that
date.
How can I read comments submitted by other people?
You may read the comments received by the Commission at the
Commission's Electronic Reading Room or the Docket Activity Library at
the addresses listed above under ADDRESSES.
IV. Rulemaking Analyses and Notices
Regulatory Flexibility Act
The Regulatory Flexibility Act (codified as amended at 5 U.S.C.
601-612) provides that whenever an agency is required to publish a
notice of proposed rulemaking under the Administrative Procedure Act
(APA) (5 U.S.C. 553), the agency must prepare and make available for
public comment an initial regulatory flexibility analysis (IRFA)
describing the impact of the proposed rule on small entities, unless
the head of the agency certifies that the rulemaking will not have a
significant economic impact on a substantial number of small entities.
5 U.S.C. 603, 605. Based on the analysis below, the Chairman of the
Federal Maritime Commission certifies that this final rule will not
have a significant economic impact on a substantial number of small
entities.
Most of the proposed changes will clearly have no economic impact
on any regulated entities, i.e., updating references to statutory
provisions, the amendments relating to nonpublic collaborative
discussions by the Commission, and the amendments relating to comments
on filed agreements.
With respect to the proposed amendments to the regulations
governing OTI licensing, financial responsibility, and general duties,
the Commission recognizes that the majority of businesses affected by
these proposed changes (OTIs) qualify as small entities under the
guidelines of the Small Business Administration. The proposed rule
would not, however, result in a significant economic impact on these
entities. The proposed regulatory changes include: (1) Expanding the
class of entities that must obtain a license to include those holding
themselves out or advertising as OTIs; and (2) expanding the
prohibition on common carriers transporting cargo for noncompliant OTIs
to include OFFs that have not met the financial responsibility
requirements. The Commission is also seeking comment regarding whether
to eliminate the requirement that foreign-based, registered NVOCCs
employ only licensed OTIs as their agents in the United States.
These changes are expected to have minimal, if any, economic
impact. As explained above, the Commission expects that requiring
entities that hold themselves out or advertise as OTIs to obtain a
license and bond, insurance, or other surety will have minimal, if any,
effects on the universe of entities that must meet the licensing and
financial responsibility requirements. In general, an entity that
advertises or holds itself out as an OTI also acts as an OTI, and the
practical effect of the change is to make it easier for the Commission
to enforce the licensing and financial responsibility requirements and
prosecute noncompliant OTIs. Further, if the Commission determines to
eliminate the requirement that agents of foreign-based, registered
NVOCCs obtain licenses in a final rule, the change would, at most,
reduce the regulatory burden on those agents.\5\ Finally, the changes
to the prohibition on transporting cargo for noncompliant OTIs would
have little, if any, economic impact on common carriers, including
NVOCCs. NVOCCs would continue to be able to rely on the Commission's
website, which contains an easily searchable database of OTIs, to
ascertain both NVOCC and OFF compliance with the relevant requirements.
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\5\ When originally proposing this requirement in 1998, the
Commission stated that it expected that most U.S. agents would
already be licensed and the impact of the requirement would be de
minimis. 1998 NPRM, 63 FR at 70714. If the Commission determines to
remove the requirement in a final rule, the Commission would expect
this change to have a similar, minimal economic impact.
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National Environmental Policy Act
The Commission's regulations categorically exclude certain
rulemakings from any requirement to prepare an environmental assessment
or an environmental impact statement because they do not increase or
decrease air, water or noise pollution or the use of fossil fuels,
recyclables, or energy. 46 CFR 504.4. In addition to correcting
references to statutory provisions, the proposed rule would make
changes to the regulations governing Commission meetings in part 503,
the regulations governing OTI licensing, financial responsibility, and
general duties in part 515, and the regulations governing the
submission of comments on filed agreements in part 535. This rulemaking
thus falls within the categorical exclusion for actions regarding
access to public information under part 503 (Sec. 504.4(a)(24)),
actions related to the issuance, modification, denial and revocation of
ocean transportation intermediary licenses (Sec. 504.4(a)(1)), and
actions related to the consideration of agreements (Sec.
[thinsp]504.4(a)(9)-(13), (30)-(35)). Therefore, no environmental
assessment or environmental impact statement is required.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA)
requires an agency to seek and receive approval from the Office of
Management and
[[Page 54091]]
Budget (OMB) before collecting information from the public. 44 U.S.C.
3507. The agency must submit collections of information in proposed
rules to OMB in conjunction with the publication of the notice of
proposed rulemaking. 5 CFR 1320.11. This proposed rule does not contain
any collections of information as defined by 44 U.S.C. 3502(3) and 5
CFR 1320.3(c).
Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards in E.O. 12988 titled,
``Civil Justice Reform,'' to minimize litigation, eliminate ambiguity,
and reduce burden.
Regulation Identifier Number
The Commission assigns a regulation identifier number (RIN) to each
regulatory action listed in the Unified Agenda of Federal Regulatory
and Deregulatory Actions (Unified Agenda). The Regulatory Information
Service Center publishes the Unified Agenda in April and October of
each year. You may use the RIN contained in the heading at the
beginning of this document to find this action in the Unified Agenda,
available at http://www.reginfo.gov/public/do/eAgendaMain.
List of Subjects
46 CFR Part 503
Freedom of Information, Privacy, Sunshine Act.
46 CFR Part 515
Freight, Freight forwarders, Maritime carriers, Reporting and
recordkeeping requirements.
46 CFR Part 530
Freight, Maritime carriers, Reporting and recordkeeping
requirements.
46 CFR Part 532
Common carriers, Exports, Maritime carriers, Reporting and
recordkeeping requirements.
46 CFR Part 535
Administrative practice and procedure, Freight, Maritime carriers,
Reporting and recordkeeping requirements.
46 CFR Part 545
Antitrust, Maritime carriers.
For the reasons set forth above, the Federal Maritime Commission
proposes to amend 46 CFR parts 503, 515, 530, 532, 535, and 545 as
follows:
PART 503--PUBLIC INFORMATION
0
1. The authority citation for part 503 is revised to read as follows:
Authority: 5 U.S.C. 331, 552, 552a, 552b, 553; 31 U.S.C. 9701;
46 U.S.C. 303; E.O. 13526 of January 5, 2010 75 FR 707, 3 CFR, 2010
Comp., p. 298, sections 5.1(a) and (b).
0
2. Amend Sec. 503.72 by revising paragraph (a) to read as follows:
Sec. 503.72 General rule--meetings.
(a) Except as otherwise provided in Sec. Sec. 503.73, 503.74,
503.75, 503.76, and 503.84, every portion of every meeting and every
portion of a series of meetings of the agency shall be open to public
observation.
* * * * *
0
3. Amend Sec. 503.78 by revising paragraph (a) to read as follows:
Sec. 503.78 General rule--information pertaining to meeting.
(a) As defined in Sec. 503.71, all information pertaining to a
portion or portions of a meeting or portion or portions of a series of
meetings of the agency shall be disclosed to the public unless excepted
from such disclosure under Sec. Sec. 503.79 through 503.81 or Sec.
503.84.
* * * * *
0
4. Add Sec. 503.84 to subpart I to read as follows:
Sec. 503.84 Nonpublic Collaborative Discussions.
(a) General. Notwithstanding Sec. 503.72, a majority of the
Commissioners may hold a meeting that is not open to public observation
to discuss official agency business if:
(1) No formal or informal vote or other official agency action is
taken at the meeting;
(2) Each individual present at the meeting is a Commissioner or an
employee of the Commission;
(3) At least one (1) Commissioner from each political party is
present at the meeting, if there are sitting Commissioners from more
than one party; and
(4) The General Counsel of the Commission is present at the
meeting.
(b) Disclosure of nonpublic collaborative discussions. Except as
provided under paragraph (c) of this section, not later than two (2)
business days after the conclusion of a meeting under paragraph (a) of
this section, the Commission shall make available to the public, in a
place easily accessible to the public:
(1) A list of the individuals present at the meeting; and
(2) A summary of the matters discussed at the meeting, except for
any matters the Commission properly determines may be withheld from the
public under Sec. 503.73.
(c) Exception. If the Commission properly determines matters may be
withheld from the public under Sec. 503.73, the Commission shall
provide a summary with as much general information as possible on those
matters withheld from the public.
(d) Ongoing proceedings. If a meeting under paragraph (a) of this
section directly relates to an ongoing proceeding before the
Commission, the Commission shall make the disclosure under paragraph
(b) of this section on the date of the final Commission decision.
0
5. Amend Sec. 503.85 by revising paragraph (a) introductory text to
read as follows:
Sec. 503.85 Agency recordkeeping requirements.
(a) In the case of any portion or portions of a meeting or portion
or portions of a series of meetings determined by the agency to be
closed to public observation under the provisions of Sec. Sec. 502.73
through 503.75, the following records shall be maintained by the
Secretary of the agency:
* * * * *
PART 515--LICENSING, FINANCIAL RESPONSIBILITY REQUIREMENTS, AND
GENERAL DUTIES FOR OCEAN TRANSPORTATION INTERMEDIARIES
0
6. The authority citation for part 515 continues to read as follows:
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 46 U.S.C. 305, 40102,
40104, 40501-40503, 40901-40904, 41101-41109, 41301-41302, 41305-
41307; Pub. L. 105-383, 112 Stat. 3411; 21 U.S.C. 862.
0
7. Revise Sec. 515.3 to read as follows:
Sec. 515.3 License; when required.
Except as otherwise provided in this part, no person in the United
States may advertise, hold itself out, or act as an ocean
transportation intermediary unless that person holds a valid license
issued by the Commission. For purposes of this part, a person is
considered to be ``in the United States'' if such person is resident
in, or incorporated or established under, the laws of the United
States. Registered NVOCCs must utilize only licensed ocean
transportation intermediaries to provide NVOCC services in the United
States. In the United States, only licensed OTIs may act as agents to
provide OTI services for registered NVOCCs.
0
8. Amend Sec. 515.4 by revising paragraph (b) to read as follows:
[[Page 54092]]
Sec. 515.4 License; when not required.
* * * * *
(b) Agents, employees, or branch offices of an ocean transportation
intermediary. A disclosed agent, individual employee, or branch office
of a licensed ocean transportation intermediary is not required to be
licensed in order to act on behalf of and in the name of such licensee;
however, branch offices must be reported to the Commission in Form FMC-
18 or under the procedures in Sec. 515.20(e). A licensed ocean
transportation intermediary is fully responsible for the acts and
omissions of any of its employees and agents that are performed in
connection with the conduct of such licensee's business.
* * * * *
0
9. Amend Sec. 515.19 by revising paragraph (g)(1)(vii) to read as
follows:
Sec. 515.19 Registration of foreign-based unlicensed NVOCC.
* * * * *
(g) * * *
(1) * * *
(vii) Knowingly and willfully accepting cargo from or transporting
cargo for the account of:
(A) An NVOCC that does not have a published tariff as required by
46 U.S.C. 40501 and part 520 of this chapter, and a bond, insurance, or
other surety as required by 46 U.S.C. 40902 and this part; or
(B) an OFF that does not have a bond, insurance, or other surety as
required by 46 U.S.C. 40902 and this part; and
* * * * *
0
10. Amend Sec. 515.21 by revising paragraph (a) introductory text, and
paragraphs (a)(1), and (a)(2) to read as follows:
Sec. 515.21 Financial Responsibility Requirements
(a) Form and amount. Except as otherwise provided in this part, no
person may advertise, hold oneself out, or act as an ocean
transportation intermediary unless that person furnishes a bond, proof
of insurance, or other surety in a form and amount determined by the
Commission to insure financial responsibility. The bond, insurance, or
other surety covers the transportation-related activities of an ocean
transportation intermediary only when acting as an ocean transportation
intermediary.
(1) Any person in the United States advertising, holding oneself
out, or acting as an ocean freight forwarder as defined in Sec.
515.2(m)(1) shall furnish evidence of financial responsibility in the
amount of $50,000.
(2) Any person in the United States advertising, holding oneself
out, or acting as an NVOCC as defined in Sec. 515.2(m)(2) shall
furnish evidence of financial responsibility in the amount of $75,000.
* * * * *
0
11. Amend Sec. 515.27 by revising paragraph (a), paragraph (b)
introductory text, and paragraphs (b)(1), and (c) to read as follows:
Sec. 515.27 Proof of compliance--NVOCC.
(a) No common carrier may knowingly and willfully accept cargo from
or transport cargo for the account of:
(1) An NVOCC that does not have a published tariff as required by
46 U.S.C. 40501 and part 520 of this chapter, and a bond, insurance, or
other surety as required by 46 U.S.C. 40902 and this part; or
(2) An OFF that does not have a bond, insurance, or other surety as
required by 46 U.S.C. 40902 and this part.
(b) A common carrier can obtain proof of an NVOCC or OFF's
compliance with the OTI licensing, registration, tariff and financial
responsibility requirements by:
(1) Consulting the Commission's website www.fmc.gov as provided in
paragraph (d) of this section, to verify that the NVOCC or OFF has
complied with the applicable licensing, registration, tariff, and
financial responsibility requirements; or
* * * * *
(c) A common carrier that has employed the procedure prescribed in
paragraph (b)(1) of this section shall be deemed to have met its
obligations under 46 U.S.C. 41104(a)(11), unless the common carrier
knew that such NVOCC or OFF was not in compliance with the applicable
tariff or financial responsibility requirements.
* * * * *
PART 530--SERVICE CONTRACTS
0
12. The authority citation for part 530 continues to read as follows:
Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40301-40306, 40501-
40503, 41307.
0
13. Amend Sec. 530.6 by revising paragraph (d) to read as follows:
Sec. 530.6 Certification of shipper status.
* * * * *
(d) Reliance on NVOCC proof; independent knowledge. An ocean common
carrier, agreement or conference executing a service contract shall be
deemed to have complied with 46 U.S.C. 41104(a)(12) upon meeting the
requirements of paragraphs (a) and (b) of this section, unless the
carrier party had reason to know such certification or documentation of
NVOCC tariff and bonding was false.
PART 532--NVOCC NEGOTIATED RATE ARRANGEMENTS
0
14. The authority citation for part 530 continues to read as follows:
Authority: 46 U.S.C. 40103.
0
15. Amend Sec. 532.2 by revising paragraph (e) to read as follows:
Sec. 532.2 Scope and applicability.
* * * * *
(e) The prohibition in 46 U.S.C. 41104(a)(2)(A);
* * * * *
0
16. Amend Sec. 532.7 by revising paragraph (c) to read as follows:
Sec. 532.7 Recordkeeping and audit.
* * * * *
(c) Failure to keep or timely produce original NRAs will disqualify
an NVOCC from the operation of the exemption provided pursuant to this
part, regardless of whether it has been invoked by notice as set forth
above, and may result in a Commission finding of a violation of 46
U.S.C. 41104(a)(1), 41104(a)(2)(A) or other acts prohibited by the
Shipping Act.
PART 535--OCEAN COMMON CARRIER AND MARINE TERMINAL OPERATOR
AGREEMENTS SUBJECT TO THE SHIPPING ACT OF 1984
0
17. The authority citation for part 535 continues to read as follows:
Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40101-40104, 40301-
40307, 40501-40503, 40901-40904, 41101-41109, 41301-41302, and
41305-41307.
0
18. Amend Sec. 535.602 by revising paragraph (b)(6) to read as
follows:
Sec. 535.602 Federal Register notice.
* * * * *
(b) * * *
(6) A request for comments, including relevant information and
documents, regarding the agreement and the date by which comments
should be submitted in order to be most useful to the Commission's
review of the agreement during the 45-day waiting period.
0
19. Amend Sec. 535.603 by revising paragraph (a) to read as follows:
Sec. 535.603 Comment.
(a) Persons may file with the Secretary written comments, including
relevant information and documents, regarding a filed agreement.
Commenters may submit the comment by email to [email protected] or
deliver to Secretary, Federal Maritime Commission, 800 N Capitol St.
NW,
[[Page 54093]]
Washington, DC 20573-0001. The Commission will treat such comments as
confidential in accordance with Sec. 535.608.
* * * * *
0
20. Amend Sec. 535.608 by revising paragraph (a) to read as follows:
Sec. 535.608 Confidentiality of submitted material.
(a) Except for an agreement filed under 46 U.S.C. ch. 403, all
information and documents submitted to the Commission by the filing
party(ies) or third parties regarding an agreement will be exempt from
disclosure under 5 U.S.C. 552. Included in this disclosure exemption is
information provided in the Information Form, voluntary submission of
additional information, reasons for noncompliance, replies to requests
for additional information, and third-party comments.
* * * * *
PART 545--INTERPRETATIONS AND STATEMENTS OF POLICY
0
21. The authority citation for part 545 continues to read as follows:
Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40307, 40501-40503,
41101-41106, and 40901-40904; 46 CFR 515.23.
0
22. Amend Sec. 545.1 by revising paragraph (a) to read as follows:
Sec. 545.1 Interpretation of Shipping Act of 1984--Refusal to
negotiate with shippers' associations.
(a) 46 U.S.C. 40502 authorizes ocean common carriers and agreements
between or among ocean common carriers to enter into a service contract
with a shippers' association, subject to the requirements of the
Shipping Act of 1984 (``Act''). 46 U.S.C. 41104(a)(10) prohibits
carriers from unreasonably refusing to deal or negotiate. 46 U.S.C.
40307(a)(3) exempts from the antitrust laws any activity within the
scope of the Act, undertaken with a reasonable basis to conclude that
it is pursuant to a filed and effective agreement.
* * * * *
By the Commission.
Rachel Dickon,
Secretary.
[FR Doc. 2019-21537 Filed 10-8-19; 8:45 am]
BILLING CODE 6731-AA-P