[Title 46 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1998 Edition]
[From the U.S. Government Printing Office]


          46



          Shipping



[[Page i]]

          PART 500 TO END

                         Revised as of October 1, 1998

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF OCTOBER 1, 1998
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1998



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 46:
          Chapter IV--Federal Maritime Commission                    3
  Finding Aids:
      Table of CFR Titles and Chapters........................     305
      Alphabetical List of Agencies Appearing in the CFR......     323
      List of CFR Sections Affected...........................     333



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 46 CFR 500.101 
                       refers to title 46, part 
                       500, section 101.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 1998), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
Government Manual, the Federal Register, Public Laws, Weekly Compilation 
of Presidential Documents and the Privacy Act Compilation are available 
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(toll-free). E-mail, gpoaccess@gpo.gov.

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
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site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 1998.



[[Page ix]]



                               THIS TITLE

    Title 46--Shipping is composed of nine volumes. The parts in these 
volumes are arranged in the following order: Parts 1-40, 41-69, 70-89, 
90-139, 140-155, 156-165, 166-199, 200-499 and 500 to End. The first 
seven volumes containing parts 1-199 comprise chapter I--Coast Guard, 
DOT. The eighth volume, containing parts 200 to 499, includes chapter 
II--Maritime Administration, DOT and chapter III--Coast Guard (Great 
Lakes Pilotage), DOT. The ninth volume, containing part 500 to End, 
includes chapter IV--Federal Maritime Commission. The contents of these 
volumes represent all current regulations codified under this title of 
the CFR as of October 1, 1998.

    Subject indexes appear for subchapter B--Merchant Marine Officers 
and Seamen, subchapter C--Uninspected Vessels, and subchapter D--Tank 
Vessels following the subchapters in parts 1-40; for subchapter F--
Marine Engineering following the subchapter in parts 41-69; for 
subchapter H--Passenger Vessels following the subchapter in parts 70-89; 
for subchapter I--Cargo and Miscellaneous Vessels, subchapter I-A--
Mobile Offshore Drilling Units, subchapter J--Electrical Engineering, 
subchapter K--Small Passenger Vessels Carrying More Than 150 Passengers 
or With Overnight Accommodations for More Than 49 Passengers, and 
subchapter L--Offshore Supply Vessels following the subchapters in parts 
90-139; for subchapter S--Subdivision and Stability, subchapter T--Small 
Passenger Vessels (Under 100 Gross Tons), and subchapter W--Lifesaving 
Appliances and Arrangements following the subchapters in parts 166-199.

    For this volume, Gwendolyn J. Henderson was Chief Editor. The Code 
of Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page x]]





[[Page 1]]



                           TITLE 46--SHIPPING




                  (This book contains part 500 to End)

  --------------------------------------------------------------------
                                                                    Part

chapter iv--Federal Maritime Commission.....................         500

Cross References: U.S. Customs Service, Department of the Treasury: See 
  Customs Duties, 19 CFR chapter I.

  Coast Guard, Department of Transportation: See Navigation and 
Navigable Waters, 33 CFR chapter I; Shipping, 46 CFR chapter I; Federal 
Acquisition Regulations, 48 CFR chapter 12.

  Foreign-Trade Zones Board: See Commerce and Foreign Trade, 15 CFR 
chapter IV.

  Interstate Commerce Commission: See Transportation, 49 CFR chapter X.

  Canal Zone Regulations: See Panama Canal, 35 CFR chapter I.

[[Page 3]]



                 CHAPTER IV--FEDERAL MARITIME COMMISSION




  --------------------------------------------------------------------

           SUBCHAPTER A--GENERAL AND ADMINISTRATIVE PROVISIONS
Part                                                                Page
500             Employee ethical conduct standards and 
                    financial disclosure regulations........           5
501             The Federal Maritime Commission--General....           5
502             Rules of practice and procedure.............          23
503             Public information..........................          90
504             Procedures for environmental policy analysis         120
505             Administrative offset.......................         125
506             Civil monetary penalty inflation adjustment.         128
507             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Federal 
                    Maritime Commission.....................         129
  SUBCHAPTER B--REGULATIONS AFFECTING MARITIME CARRIERS, OCEAN FREIGHT 
 FORWARDERS, MARINE TERMINAL OPERATIONS, PASSENGER VESSELS, TARIFFS AND 
                            SERVICE CONTRACTS
510             Licensing of ocean freight forwarders.......         136
514             Tariffs and service contracts...............         147
540             Security for the protection of the public...         218
   SUBCHAPTER C--REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED 
           ACTIVITIES IN DOMESTIC OFFSHORE COMMERCE [RESERVED]
   SUBCHAPTER D--REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED 
                     ACTIVITIES IN FOREIGN COMMERCE
571             Interpretations and statements of policy....         237
572             Agreements by ocean common carriers and 
                    other persons subject to the Shipping 
                    Act of 1984.............................         237
582             Certification of company policies and 
                    efforts to combat rebating in the 
                    foreign commerce of the United States...         274
583             Surety for non-vessel-operating common 
                    carriers................................         276
585             Regulations to adjust or meet conditions 
                    unfavorable to shipping in the foreign 
                    trade of the United States..............         286

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586             Actions to adjust or meet conditions 
                    unfavorable to shipping in the U.S. 
                    foreign trade...........................         292
587             Actions to address conditions unduly 
                    impairing access of U.S.-flag vessels to 
                    ocean trade between foreign ports.......         294
588             Actions to address adverse conditions 
                    affecting U.S.-flag carriers that do not 
                    exist for foreign carriers in the United 
                    States..................................         299

[[Page 5]]



           SUBCHAPTER A--GENERAL AND ADMINISTRATIVE PROVISIONS


PART 500--EMPLOYEE ETHICAL CONDUCT STANDARDS AND FINANCIAL DISCLOSURE REGULATIONS--Table of Contents




    Authority: 5 U.S.C. 553; 5 U.S.C. 7301; 46 U.S.C. app. 1716.



Sec. 500.101  Cross-referrence to employee ethical conduct standards and financial disclosure regulations.

    Employees of the Federal Maritime Commission (``FMC'') should refer 
to the executive branch-wide Standards of Ethical Conduct at 5 CFR part 
2635, and the executive branch-wide financial disclosure regulation at 5 
CFR part 2634.

[60 FR 9787, Feb. 22, 1995]



PART 501--THE FEDERAL MARITIME COMMISSION--GENERAL--Table of Contents




                  Subpart A--Organization and Functions

Sec.
501.1  Purpose.
501.2  General.
501.3  Organizational components of the Federal Maritime Commission.
501.4  Lines of responsibility.
501.5  Functions of the organizational components of the Federal 
          Maritime Commission.

                        Subpart B--Official Seal

501.11  Official seal.

          Subpart C--Delegation and Redelegation of Authorities

501.21  Delegation of authorities.
501.22  [Reserved]
501.23  Delegation to the General Counsel.
501.24  Delegation to the Secretary.
501.25  Delegation to and redelegation by the Managing Director.
501.26  Delegation to the Director, Bureau of Economics and Agreement 
          Analysis.
501.27  Delegation to and redelegation by the Director, Bureau of 
          Tariffs, Certification and Licensing.
501.28  Delegation to the Director, Bureau of Enforcement.
501.29  [Reserved]
501.30  Delegation to and redelegation by the Director, Bureau of 
          Administration.

               Subpart D--Public Requests for Information

501.41  Public requests for information and decisions.

Appendix A to Part 501--Organization Chart

    Authority: 5 U.S.C. 551-557, 701-706, 2903 and 6304; 31 U.S.C. 3721; 
41 U.S.C. 414 and 418; 44 U.S.C. 501-520 and 3501-3520; 46 U.S.C. app. 
801-848, 876, 1111, and 1701-1720; Reorganization Plan No. 7 of 1961, 26 
FR 7315, August 12, 1961; Pub. L. 89-56, 79 Stat. 195; 5 CFR Part 2638.

    Source: 59 FR 954, Jan. 7, 1994, unless otherwise noted.



                  Subpart A--Organization and Functions



Sec. 501.1  Purpose.

    This part describes the organization, functions and Official Seal 
of, and the delegation of authority within, the Federal Maritime 
Commission (``Commission'').



Sec. 501.2  General.

    (a) Statutory functions. The Commission regulates common carriers by 
water and other persons involved in the foreign and domestic offshore 
commerce of the U.S. under provisions of the Shipping Act, 1916, (46 
U.S.C. app. 801-842); the Intercoastal Shipping Act, 1933 (46 U.S.C. 
app. 843-848); the Shipping Act of 1984 (46 U.S.C. app. 1701-1720); 
section 19 of the Merchant Marine Act, 1920 (46 U.S.C. app. 876); the 
Foreign Shipping Practices Act of 1988 (46 U.S.C. app. 1710a); sections 
2 and 3, Public Law 89-777, Financial Responsibility for Death or Injury 
to Passengers and for Non-Performance of Voyages (46 U.S.C. app. 817d 
and 817e); and other applicable statutes.
    (b) Establishment and composition of the Commission. The Commission 
was established as an independent agency by Reorganization Plan No. 7 of 
1961, effective August 12, 1961, and is composed of five Commissioners 
(``Commissioners'' or ``members''), appointed by the President, by and 
with the advice and consent of the Senate. Not more

[[Page 6]]

than three Commissioners may be appointed from the same political party. 
The President designates one of the Commissioners to be the Chairman of 
the Commission (``Chairman'').
    (c) Terms and vacancies. The term of each member of the Commission 
is 5 years and begins when the term of the predecessor of that member 
ends (i.e., on June 30 of each successive year), except that, when the 
term of office of a member ends, the member may continue to serve until 
a successor is appointed and qualified. A vacancy in the office of any 
Commissioner shall be filled in the same manner as the original 
appointment, except that any person chosen to fill a vacancy shall be 
appointed only for the unexpired term of the Commissioner whom he or she 
succeeds. Each Commissioner shall be removable by the President for 
inefficiency, neglect of duty, or malfeasance in office.
    (d) Quorum. A vacancy in the Commission, so long as there shall be 
three Commissioners in office, shall not impair the power of the 
Commission to execute its functions. Any three Commissioners in office 
constitute a quorum for the transaction of the business of the 
Commission, and the affirmative votes of any three Commissioners shall 
be sufficient for the disposition of any matter which may come before 
the Commission. For purposes of holding a formal meeting for the 
transaction of the business of the Commission, the actual presence of 
two Commissioners shall be sufficient, with proxy votes of absent 
members permitted in order to obtain the required three affirmative 
votes. See Commission Order No. 84.
    (e) Meetings; records; rules and regulations. The Commission shall, 
through its Secretary, keep a true record of all its meetings and the 
yea-and-nay votes taken therein on every action and order approved or 
disapproved by the Commission. In addition to or in aid of its 
functions, the Commission adopts rules and regulations in regard to its 
powers, duties and functions under the shipping statutes it administers.



Sec. 501.3  Organizational components of the Federal Maritime Commission.

    The major organizational components of the Commission are set forth 
in the Organization Chart attached as Appendix A to this part. An 
outline table of the components/functions follows:
(a) Office of the Chairman of the Federal Maritime Commission.
    (Chief Executive and Administrative Officer, and FOIA and Privacy 
Act Appeals Officer.)
    (1) Information Security Officer.
    (2) Designated Agency Ethics Official.
(b) Offices of the Members of the Federal Maritime Commission. (Include 
the Chairman, ADP Committee.)
(c) Office of the Secretary. (FOIA and Privacy Act Officer; Federal 
Register Liaison; Alternative Disputes Resolution Coordinator.)
    (1) Office of Informal Inquiries, Complaints and Informal Dockets.
    (2) [Reserved]
(d) Office of the General Counsel. (Ethics Official.)
(e) Office of Administrative Law Judges.
(f) Office of Equal Employment Opportunity.
(g) Office of the Inspector General.
    (h) Office of the Managing Director. (Chief Operating Officer; 
Designated Senior IRM Official; Senior Procurement Executive and ATFI 
Contracting Officer; Audit Followup and Management Controls.)
    (1) Office of Information Resources Management. (Senior IRM Manager; 
Computer Security; Forms Control; Records Management.)
    (2) [Reserved]
(i) Bureau of Economics and Agreement Analysis.
    (1) Office of Agreements and Information Management.
    (2) Office of Monitoring I.
    (3) Office of Monitoring II.
(j) Bureau of Tariffs, Certification and Licensing.
    (1) Office of Tariffs.
    (2) Tariff Control Center.
    (3) Office of Service Contracts and Passenger Vessel Operations.
    (4) Office of Freight Forwarders.
(k) [Reserved]

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(l) Bureau of Enforcement.
    (1) New York District.
    (2) Miami District.
    (3) Los Angeles District.
(m) Bureau of Administration. (Competition Advocate; Information 
Security; Principal Management Official on Small Agency Council.)
    (1) Office of Administrative Services. (Physical Security; FMC 
Contracting Officer.)
    (2) Office of Budget and Financial Management. (Chief Financial 
Officer.)
    (3) Office of Personnel.
(n) Boards and Committees.
    (1) Executive Resources Board.
    (2) Committee on Automated Data Processing.
    (3) Performance Review Board.
    (4) Incentive Awards Committee.

[59 FR 954, Jan. 7, 1994, as amended at 59 FR 62329, Dec. 5, 1994; 59 FR 
67227, Dec. 29, 1994; 60 FR 57940, Nov. 24, 1995; 61 FR 51231, Oct. 1, 
1996]



Sec. 501.4  Lines of responsibility.

    (a) Chairman. The Office of the Secretary, the Office of the General 
Counsel, the Office of Administrative Law Judges, the Office of Equal 
Employment Opportunity, the Office of the Inspector General, the Office 
of the Managing Director, and officials performing the functions of 
Information Security Officer and Designated Agency Ethics Official, 
report to the Chairman of the Commission.
    (b) Office of the Managing Director. The Bureau of Economics and 
Agreement Analysis; Bureau of Tariffs, Certification and Licensing; 
Bureau of Enforcement; and Bureau of Administration report to the Office 
of the Managing Director. The Offices of Equal Employment Opportunity 
and of the Inspector General receive administrative assistance from the 
Managing Director. All other units of the Commission receive 
administrative guidance from the Managing Director.
    (c) Bureau of Enforcement and Area Representatives. The Area 
Representatives report to the Director, Bureau of Enforcement.

[59 FR 954, Jan. 7, 1994, as amended at 59 FR 67227, Dec. 29, 1994; 60 
FR 57941, Nov. 24, 1995; 61 FR 51231, Oct. 1, 1996]



Sec. 501.5  Functions of the organizational components of the Federal Maritime Commission.

    As further provided in subpart C of this part, the functions, 
including the delegated authority of the Commission's organizational 
components and/or officials to exercise their functions and to take all 
actions necessary to direct and carry out their assigned duties and 
responsibilities under the lines of responsibility set forth in 
Sec. 501.4, are briefly set forth as follows:
    (a) Chairman. As the chief executive and administrative officer of 
the Commission, the Chairman presides at meetings of the Commission, 
administers the policies of the Commission to its responsible officials, 
and assures the efficient discharge of their responsibilities. The 
Chairman provides management direction to the Offices of Equal 
Employment Opportunity, Inspector General, Secretary, General Counsel, 
Administrative Law Judges, and Managing Director with respect to all 
matters concerning overall Commission workflow, resource allocation 
(both staff and budgetary), work priorities and similar managerial 
matters; and establishes, as necessary, various committees and boards to 
address overall operations of the agency. The Chairman serves as appeals 
officer under both the Freedom of Information Act and the Privacy Act. 
The Chairman appoints the heads of major administrative units after 
consultation with other Commissioners. In addition, the Chairman, as 
``head of the agency,'' has certain responsibilities under Federal laws 
and directives not specifically related to shipping. For example, the 
special offices or officers within the Commission, listed under 
paragraphs (a)(1) through (a)(4) of this section, are appointed or 
designated by the Chairman, are under his or her direct supervision and 
report directly to the Chairman:
    (1) Under the direction and management of the Office Director, the 
Office of Equal Employment Opportunity (``EEO'') ensures that statutory 
and regulatory prohibitions against discrimination in employment and the 
requirements for related programs are fully implemented. As such, the 
Office

[[Page 8]]

administers and implements comprehensive programs on discrimination 
complaints processing, affirmative action and special emphasis. The 
Director, EEO, advises the Chairman regarding EEO's plans, procedures, 
regulations, reports and other matters pertaining to policy and the 
agency programs. Additionally, the Director provides leadership and 
advice to managers and supervisors in carrying out their respective 
responsibilities in equal employment opportunity. The Office administers 
and implements these program responsibilities in accordance with Equal 
Employment Commission (``EEOC'') Regulations at 29 CFR part 1614 and 
other relevant EEOC Directives and Bulletins.
    (2) Under the direction and management of the Inspector General, the 
Office of Inspector General conducts, supervises and coordinates audits 
and investigations relating to the programs and operations of the 
Commission; reviews existing and proposed legislation and regulations 
pertaining to such programs and operations; provides leadership and 
coordination and recommends policies for activities designed to promote 
economy, efficiency, and effectiveness in the administration of, and to 
prevent and detect waste, fraud and abuse in, such programs and 
operations; and advises the Chairman and the Congress fully and 
currently about problems and deficiencies relating to the administration 
of such programs and operations and the necessity for and progress of 
corrective action.
    (3) The Information Security Officer is a senior agency official 
designated under Sec. 503.52 of this chapter to direct and administer 
the Commission's information security program, which includes an active 
oversight and security education program to ensure effective 
implementation of Executive Order 12356.
    (4) The Designated Agency Ethics Official and Alternate are 
appropriate agency employees formally designated under 5 CFR 2638.202 
and Sec. 500.105 of this chapter to coordinate and manage the ethics 
program as set forth in 5 CFR 2638.203, which includes the functions of 
advising on matters of employee responsibilities and conduct under part 
500 of this chapter, and serving as the Commission's designee(s) to the 
Office of Personnel Management on such matters. They provide counseling 
and guidance to employees on conflicts of interest and other ethical 
matters.
    (b) Commissioners. The members of the Commission, including the 
Chairman, implement various shipping statutes and related directives by 
rendering decisions, issuing orders, and adopting and enforcing rules 
and regulations governing persons subject to the shipping statutes; and 
perform other duties and functions as may be appropriate under 
reorganization plans, statutes, executive orders, and regulations.
    (c) Secretary. Under the direction and management of the Secretary, 
the Office of the Secretary:
    (1) Is responsible for the preparation, maintenance and disposition 
of the official files and records documenting the business of the 
Commission. In this regard, the Office:
    (i) Prepares and, as appropriate, publishes agenda of matters for 
action by the Commission, prepares and maintains the minutes with 
respect to such actions; signs, serves and issues, on behalf of the 
Commission, documents implementing such actions, and coordinates follow-
up thereon.
    (ii) Receives and processes formal and informal complaints involving 
alleged statutory violations, petitions for relief, special dockets 
applications (including the issuance of decisions therein), applications 
to correct clerical or administrative errors in service contracts, 
requests for conciliation service, staff recommendations for 
investigation and rulemaking proceedings, and motions and filings 
relating thereto.
    (iii) Disseminates information regarding the proceedings, 
activities, functions, and responsibilities of the Commission to the 
maritime industry, news media, general public, and other government 
agencies. In this capacity the Office also:
    (A) Administers the Commission's Freedom of Information Act, Privacy 
Act and Government in the Sunshine Act responsibilities; the Secretary 
serves as the Freedom of Information Act and Privacy Act Officer.

[[Page 9]]

    (B) Authenticates records of the Commission.
    (C) Receives and responds to subpoenas directed to Commission 
personnel and/or records.
    (D) Compiles and publishes the bound volumes of Commission 
decisions.
    (E) Coordinates publication of documents, including rules and 
modifications thereto with the Office of the Federal Register; the 
Secretary serves as the Federal Register Liaison Officer and Certifying 
Officer.
    (2) Through the Secretary and, in the absence or preoccupation of 
the Secretary, through the Assistant Secretary, administers oaths 
pursuant to 5 U.S.C. 2903(b).
    (3) Coordinates Alternative Dispute Resolution activities within the 
Commission.
    (4) Through the Office of Informal Inquiries, Complaints and 
Informal Dockets:
    (i) Advises the Commission on significant public interest issues in 
current and proposed policies, programs, and decisions;
    (ii) Receives, coordinates, and responds to informal inquiries, 
complaints, suggestions, and expressions of concern from the public and 
contacts carriers, conferences, and other persons to effect solutions;
    (iii) Publicizes Commission policies, programs, and activities of 
interest to the Commission's shipping public; and
    (iv) Adjudicates small claims ($10,000 or less) arising from alleged 
violations of the shipping statutes.
    (d) General Counsel. Under the direction and management of the 
General Counsel, the Office of the General Counsel:
    (1) Reviews for legal sufficiency all staff memoranda and 
recommendations that are presented for Commission action and staff 
actions acted upon pursuant to delegated authority under Secs. 501.26(i) 
and 501.26(k).
    (2) Provides written or oral legal opinions to the Commission, to 
the staff, and to the general public in appropriate cases.
    (3) Prepares and/or reviews for legal sufficiency, before service, 
all final Commission decisions, orders, and regulations.
    (4) Monitors, reviews and, as requested by the Committees of the 
Congress, the Office of Management and Budget, or the Chairman, prepares 
comments on all legislation introduced in the Congress affecting the 
Commission's programs or activities, and prepares draft legislation or 
amendments to legislation; coordinates such matters with the appropriate 
Bureau, Office or official and advises appropriate Commission officials 
of legislation which may impact the programs and activities of the 
Commission. Also prepares testimony for Congressional hearings and 
responses to requests from Congressional offices.
    (5) Serves as the legal representative of the Commission in courts 
and in administrative proceedings before other Government agencies.
    (6) Monitors and reports on international maritime developments, 
including laws and practices of foreign governments which affect ocean 
shipping; and identifies potential state-controlled carriers within the 
meaning of section 3(8) of the Shipping Act of 1984, researches their 
status, and makes recommendations to the Commission concerning their 
classification.
    (7) Represents the Commission in U.S. Government interagency groups 
dealing with international maritime issues; serves as a technical 
advisor on regulatory matters in bilateral and multilateral maritime 
discussions; and coordinates Commission activities through liaison with 
other Government agencies and programs and international organizations.
    (8) Screens, routes, and maintains custody of U.S. Government and 
international organization documents, subject to the classification and 
safekeeping controls administered by the Commission's Information 
Security Officer.
    (9) Reviews for legal sufficiency all adverse personnel actions, 
procurement activities, Freedom of Information Act and Privacy Act 
matters and other administrative actions.
    (10) Manages the Commission's library and related services.
    (e) Administrative Law Judges. Under the direction and management of 
the Chief Administrative Law Judge, the Office of Administrative Law 
Judges holds hearings and renders initial or

[[Page 10]]

recommended decisions in formal rulemaking and adjudicatory proceedings 
as provided in the Shipping Act of 1984, and other applicable laws and 
other matters assigned by the Commission, in accordance with the 
Administrative Procedure Act and the Commission's Rules of Practice and 
Procedure.
    (f) The Office of the Managing Director. (1) The Managing Director:
    (i) As senior staff official, is responsible to the Chairman for the 
management and coordination of Commission programs managed by the 
operating Bureaus of Enforcement; Administration; Economics and 
Agreement Analysis; and Tariffs, Certification and Licensing, as more 
fully described in paragraphs (g) through (k) of this section, and 
thereby implements the regulatory policies of the Commission and the 
administrative policies and directives of the Chairman;
    (ii) Provides administrative guidance to all units of the Commission 
other than the operating bureaus listed in paragraph (f)(1) of this 
section, except the Offices of Equal Employment Opportunity and the 
Inspector General, which are provided administrative assistance;
    (iii) Is the agency's Senior Procurement Executive under 41 U.S.C. 
414(3) and Commission Order No. 112;
    (iv) As the Designated Senior Information Resources Management 
Official under 44 U.S.C. 501-520 and 3501-3520 and Commission Order No. 
117, reviews recommendations of the Commission's Committee on Automated 
Data Processing and submits them to the Chairman under Commission Orders 
Nos. 98 and 117;
    (v) Is the Audit Follow-up and Management (Internal) Controls 
Official for the Commission under Commission Orders Nos. 103 and 106; 
and
    (vi) Is the agency's Chief Operating Officer, as appointed by the 
Chairman in response to the President's October 1, 1993, memorandum on 
management reform.
    (2) The Office of Managing Director ensures the periodic review and 
updating of Commission orders.
    (3) A Deputy Managing Director, reporting directly to the Managing 
Director, supervises the development of, and serves as Contracting 
Officer for, the Commission's Automated Tariff Filing and Information 
(``ATFI'') System.
    (4) Is responsible for the administration and coordination of the 
Office of Information Resources Management. The Office of Information 
Resources Management, under the direction and management of the Office 
Director, provides administrative support with respect to information 
resources management to the program operations of the Commission. The 
Office interprets governmental policies and programs for information 
management and administers these in a manner consistent with Federal 
guidelines. The Office initiates recommendations, collaborating with 
other elements of the Commission as warranted, for long-range plans, new 
or revised policies and standards, and rules and regulations, with 
respect to its program activities. The Office's major functions include: 
administration of the information resources management program under the 
Paperwork Reduction Act; management studies and surveys; data 
telecommunications/database management and application development; 
records management; IRM contract administration; development of 
Paperwork Reduction Act clearances for submission to the Office of 
Management and Budget; computer security; and forms management. The 
Director of the Office serves as Senior IRM Manager, Forms Control 
Officer, Computer Security Officer, Records Management Officer, and ADP 
Coordinator for the Committee on Automated Data Processing.
    (g) Under the direction and management of the Bureau Director, the 
Bureau of Economics and Agreement Analysis develops and administers 
programs in connection with the anticompetitive and cooperative 
arrangements and practices of common carriers by water, freight 
forwarders and terminal operators in the foreign commerce of the U.S., 
including the filing of ocean common carrier agreements under section 5 
of the Shipping Act of 1984, and the filing of agreements by marine 
terminal operators under section 5 of the Shipping Act of 1984. The 
Bureau provides expert economic testimony and support

[[Page 11]]

in formal proceedings, particularly regarding unfair foreign shipping 
practices under section 19 of the Merchant Marine Act, 1920, and the 
Foreign Shipping Practices Act of 1988.
    (h) Bureau of Tariffs, Certification and Licensing. Under the 
direction and management of the Bureau Director, the Bureau of Tariffs, 
Certification and Licensing plans, develops and administers programs in 
connection with tariffs filed by common carriers and marine terminal 
operators; ocean common carrier service contracts; financial 
responsibility of non-vessel operating common carriers; licensing ocean 
freight forwarders; certifying the financial responsibility of passenger 
vessel owners and operators. These programs carry out provisions of the 
Shipping Act of 1984; and Public Law 89-777, as implemented under Parts 
510, 514, 540, 582 and 583 of this chapter. The Bureau maintains tariff 
data filed in electronic form on the Commission's Automated Tariff 
Filing and Information System (``ATFI''). The Bureau develops long-range 
plans, new or revised policies and standards, and rules and regulations 
with respect to these programs. It also cooperates with other Commission 
components with regard to the enforcement of the Commission's regulatory 
requirements, and provides expert testimony and support in formal 
proceedings. The Bureau's program activities are carried out by the 
Office of Tariffs, the Office of Service Contracts and Passenger Vessel 
Operations and the Office of Freight Forwarders.
    (i) Bureau of Enforcement; Area Representatives. Under the direction 
and management of the Bureau Director, the Bureau of Enforcement:
    (1) Participates as trial counsel in formal Commission proceedings 
when designated by Commission order, or when intervention is granted;
    (2) Initiates, processes and negotiates the informal compromise of 
civil penalties under Sec. 501.28 of this part and Sec. 502.604 of this 
chapter, and represents the Commission in proceedings and circumstances 
as designated;
    (3) Acts as staff counsel to the Managing Director and other bureaus 
and offices;
    (4) Coordinates with other bureaus and offices to provide legal 
advice, attorney liaison, and prosecution, as warranted, in connection 
with enforcement matters; and
    (5) Conducts investigations leading to enforcement action, advises 
the Federal Maritime Commission of evolving competitive practices in 
international and domestic offshore commerce, assesses the practical 
repercussions of Commission regulations, educates the industry regarding 
policy and statutory requirements, assists in the resolution of disputes 
within the industry, and provides liaison, cooperation, and other 
coordination between the Commission and the maritime industry, shippers, 
and other government agencies.
    (6) Maintains a presence in locations other than Washington, D.C. 
through Area Representatives whose activities include the following:
    (i) Representing the Commission within their respective geographic 
areas;
    (ii) Providing liaison between the Commission and the shipping 
industry and interested public; conveying pertinent information 
regarding regulatory activities and problems; and recommending courses 
of action and solutions to problems as they relate to the shipping 
public, the affected industry, and the Commission;
    (iii) Furnishing to interested persons information, advice, and 
access to Commission public documents;
    (iv) Receiving and resolving informal complaints, in coordination 
with the Director, Office of Informal Inquiries, Complaints and Informal 
Dockets;
    (v) Investigating potential violations of the shipping statutes and 
the Commission's regulations;
    (vi) Conducting shipping industry surveillance programs to ensure 
compliance with the shipping statutes and Commission regulations. Such 
programs include common carrier audits, service contract audits and 
compliance checks of ocean freight forwarders;
    (vii) Upon request of the Bureau of Tariffs, Certification and 
Licensing, auditing passenger vessel operators to determine the adequacy 
of performance bonds and the availability of funds to pay liability 
claims for death or injury,

[[Page 12]]

and assisting in the background surveys of ocean freight forwarder 
applicants;
    (viii) Conducting special surveys and studies, and recommending 
policies to strengthen enforcement of the shipping laws;
    (ix) Maintaining liaison with Federal and State agencies with 
respect to areas of mutual concern; and
    (x) Providing assistance to the various bureaus and offices of the 
Commission as appropriate and when requested.
    (j) [Reserved]
    (k) Under the direction and management of the Bureau Director, the 
Bureau of Administration is responsible for the administration and 
coordination of the Offices of: Administrative Services; Budget and 
Financial Management; and Personnel. The Bureau provides administrative 
support to the program operations of the Commission. The Bureau 
interprets governmental policies and programs and administers these is a 
manner consistent with Federal guidelines, including those involving 
procurement, financial management and personnel. The Bureau initiates 
recommendations, collaborating with other elements of the Commission as 
warranted, for long-range plans, new or revised policies and standards, 
and rules and regulations, with respect to its program activities. The 
Office of the Bureau Director is responsible for directing and 
administering the Commission's training and development function. The 
Bureau Director is the Commission's Competition Advocate under 41 U.S.C. 
418(a) and Commission Order No. 112, as well as the Commission's 
representative, as Principal Management Official, to the Small Agency 
Council. Other Bureau programs are carried out by its Offices, as 
follows:
    (1) The Office of Administrative Services, under the direction and 
management of the Office Director, directs and administers a wide 
variety of management support service functions of the Commission. The 
Director of the Office is the Commission's principal Contracting Officer 
under Commission order No. 112. Programs include communications; audio 
and voice telecommunications; procurement of and contracting for 
administrative goods and services, including the utilization of small 
and disadvantaged businesses; management of property, space, printing 
and copying; mail and records services; Forms and graphic designs; 
facilities; and equipment maintenance; and transportation.
    (2) The Office of Budget and Financial Management, under the 
direction and management of the Office Director, administers the 
Commission's financial management program, including fiscal accounting 
activities, fee and forfeiture collections, and payments, and ensures 
that Commission obligations and expenditures of appropriated funds are 
proper; develops annual budget justifications for submission to the 
Congress and the Office of Management and Budget; develops and 
administers internal controls systems that provide accountability for 
agency funds; administers the Commission's travel and cash management 
programs, as well as the Commission's Imprest Funds; ensures 
accountability for official passports; and assists in the development of 
proper levels of user fees. The Director of the Office is the 
Commission's Chief Financial Officer.
    (3) The Office of Personnel, under the direction and management of 
the Office Director, plans and administers a complete personnel 
management program including: Recruitment and placement; position 
classification and pay administration; occupational safety and health; 
employee counseling services; employee relations; workforce discipline; 
performance appraisal; incentive awards; retirement; and personnel 
security. The Director of the Office is the Chairman of the Incentive 
Awards Committee.
    (l) Boards and Committees. The following boards and committees are 
established by separate Commission orders (``C.O.'') to address matters 
relating to the overall operations of the Commission:
    (1) The Executive Resources Board is comprised of three voting 
members, chosen from the ranks of those above the grade 15 level, with 
the majority being career members of the Senior Executive Service. The 
members serve

[[Page 13]]

staggered terms of three years, beginning October 1 of each year; the 
member serving in the last year of his/her term serves as Chairman. The 
board meets on an ad hoc basis to discuss, develop and submit 
recommendations to the Chairman on matters related to the merit staffing 
process for career appointments in the Senior Executive Service, 
including the executive qualifications of candidates for career 
appointment. The board also plans and manages the Commission's executive 
development programs. Serving the board in a non-voting advisory 
capacity are the Director, Office of Equal Employment Opportunity, the 
Training Officer, and the Director, Office of Personnel, who also serves 
as the board's secretary. C.O. No. 95.
    (2) The Committee on Automated Data Processing is chaired by a 
Commissioner designated by the Chairman, and is comprised of the 
Directors of the Bureaus of Economics and Agreement Analysis; Tariffs, 
Certification and Licensing; Administration; and Enforcement; the 
General Counsel; the Secretary; the Inspector General; the Director, 
Office of Equal Employment Opportunity; the Chief Administrative Law 
Judge; a representative of the Chairman's office; the Deputy Managing 
Director in charge of the Commission's Automated Tariff Filing and 
Information System; and the Director, Office of Information Resources 
Management, who serves as Committee Coordinator for the Committee 
Chairperson. The Committee meets on an ad hoc basis to review, evaluate, 
and recommend to the Chairman, through the Managing Director, policies 
and actions on the acquisition, management, and use of ADP equipment and 
services. C.O. No. 98.
    (3) The Performance Review Board is chaired by a Commissioner 
designated by the Chairman, and is composed of a standing register of 
members which is published in the Federal Register. Once a year, the PRB 
Chairman appoints performance review panels from the membership to 
review individual performance appraisals and other relevant information 
pertaining to Senior Executives at the Commission, and to recommend 
final performance ratings to the Chairman. C.O. No. 115.
    (4) The Incentive Awards Committee is composed of two permanent 
voting members: The Director of Personnel, who serves as Chairman; and 
the Director of Equal Employment Opportunity; and two other voting 
members approved by the Chairman upon the recommendation of the Managing 
Director. The committee meets on an ad hoc basis to determine if 
incentive award nominations meet established criteria, and to review 
suggestions. C.O. No. 62.

[59 FR 954, Jan. 7, 1994, as amended at 59 FR 54396, Oct. 31, 1994; 59 
FR 62329, Dec. 5, 1994; 59 FR 67227, Dec. 29, 1994; 60 FR 5322, Jan. 27, 
1995; 60 FR 30791, June 12, 1995; 60 FR 57941, Nov. 24, 1995; 61 FR 
51231, Oct. 1, 1996; 61 FR 66616, Dec. 18, 1996]



                        Subpart B--Official Seal



Sec. 501.11  Official seal.

    (a) Description. Pursuant to section 201 (c) of the Merchant Marine 
Act, 1936, as amended (46 U.S.C. app. 1111(c)), the Commission 
prescribes its official seal, as adopted by the Commission on August 14, 
1961, which shall be judicially noticed. The design of the official seal 
is described as follows:
    (1) A shield argent paly of six gules, a chief azure charged with a 
fouled anchor or; shield and anchor outlined of the third; on a wreath 
argent and gules, an eagle displayed proper; all on a gold disc within a 
blue border, encircled by a gold rope outlined in blue, and bearing in 
white letters the inscription ``Federal Maritime Commission'' in upper 
portion and ``1961'' in lower portion.
    (2) The shield and eagle above it are associated with the United 
States of America and denote the national scope of maritime affairs. The 
outer rope and fouled anchor are symbolic of seamen and waterborne 
transportation. The date ``1961'' has historical significance, 
indicating the year in which the Commission was created.
    (b) Design.

[[Page 14]]

[GRAPHIC] [TIFF OMITTED] TC03MR91.032



          Subpart C--Delegation and Redelegation of Authorities



Sec. 501.21  Delegation of authorities.

    (a) Authority and delegation. Section 105 of Reorganization Plan No. 
7 of 1961, August 12, 1961, authorizes the Commission to delegate, by 
published order or rule, any of its functions to a division of the 
Commission, an individual Commissioner, an administrative law judge, or 
an employee or employee board, including functions with respect to 
hearing, determining, ordering, certifying, reporting or otherwise 
acting as to any work, business or matter. In subpart A of this part, 
the Commission has delegated general functions, and in this subpart C, 
it is delegating miscellaneous, specific authorities set forth in 
Secs. 501.23, et seq., to the delegatees designated therein, subject to 
the limitations prescribed in subsequent subsections of this section.
    (b) Deputies. Where bureau or office deputies are officially 
appointed, they are hereby delegated all necessary authority to act in 
the absence or incapacity of the director or chief.
    (c) Redelegation. Subject to the limitations in this section, the 
delegatees may redelegate their authorities to subordinate personnel 
under their supervision and direction; but only if this subpart is 
amended to reflect such redelegation and notice thereof is published in 
the Federal Register. Under any redelegated authority, the redelegator 
assumes full responsibility for actions taken by subordinate 
redelegatees.
    (d) Exercise of authority; policy and procedure. The delegatees and 
redelegatees shall exercise the authorities delegated or redelegated in 
a manner consistent with applicable laws and the established policies of 
the Commission, and shall consult with the General Counsel where 
appropriate.
    (e) Exercise of delegated authority by delegator. Under any 
authority delegated or redelegated, the delegator (Commission), or the 
redelegator, respectively, shall retain full rights to exercise the 
authority in the first instance.
    (f) Review of delegatee's action. The delegator (Commission) or 
redelegator of authority shall retain a discretionary right to review an 
action taken under delegated authority by a subordinate delegatee, 
either upon the filing of a written petition of a party to, or an 
intervenor in, such action; or upon the delegator's or redelegator's own 
initiative.
    (1) Petitions for review of actions taken under delegated authority 
shall be filed within ten (10) calendar days of the action taken:

[[Page 15]]

    (i) If the action for which review is sought is taken by a 
delegatee, the petition shall be addressed to the Commission pursuant to 
Sec. 502.69 of this chapter.
    (ii) If the action for which review is sought is taken by a 
redelegatee, the petition shall be addressed to the redelegator whose 
decision can be further reviewed by the Commission under paragraph 
(f)(1)(i) of this section, unless the Commission decides to review the 
matter directly, such as, for example, in the incapacity of the 
redelegator.
    (2) The vote of a majority of the Commission less one member thereof 
shall be sufficient to bring any delegated action before the Commission 
for review under this paragraph.
    (g) Action--when final. Should the right to exercise discretionary 
review be declined or should no such review be sought under paragraph 
(f) of this section, then the action taken under delegated authority 
shall, for all purposes, including appeal or review thereof, be deemed 
to be the action of the Commission.
    (h) Conflicts. Where the procedures set forth in this section 
conflict with law or any regulation of this chapter, the conflict shall 
be resolved in favor of the law or other regulation.



Sec. 501.22  [Reserved]



Sec. 501.23  Delegation to the General Counsel.

    The authority listed in this section is delegated to the General 
Counsel: Authority to classify carriers as state-controlled carriers 
within the meaning of section 3(8) of the Shipping Act of 1984, except 
where a carrier submits a rebuttal statement pursuant to 
Sec. 514.4(c)(2)(ii) of this chapter.

[60 FR 27229, May 23, 1995]



Sec. 501.24  Delegation to the Secretary.

    The authorities listed in this section are delegated to the 
Secretary (and, in the absence or preoccupation of the Secretary, to the 
Assistant Secretary).
    (a) Authority to approve applications for permission to practice 
before the Commission and to issue admission certificates to approved 
applicants.
    (b) Authority to extend the time to file exceptions or replies to 
exceptions, and the time for Commission review, relative to initial 
decisions of administrative law judges and decisions of Special Dockets 
Officers.
    (c) Authority to extend the time to file appeals or replies to 
appeals, and the time for Commission review, relative to dismissals of 
proceedings, in whole or in part, issued by administrative law judges.
    (d) Authority to establish and extend or reduce the time:
    (1) To file documents either in docketed proceedings or relative to 
petitions filed under part 502 of this chapter, which are pending before 
the Commission itself; and
    (2) To issue initial and final decisions under Sec. 502.61 of this 
chapter.
    (e) Authority to prescribe a time limit for the submission of 
written comments with reference to agreements filed pursuant to section 
5 of the Shipping Act of 1984.
    (f) Authority, in appropriate cases, to publish in the Federal 
Register notices of intent to prepare an environmental assessment and 
notices of finding of no significant impact.
    (g) Authority to prescribe a time limit less than ten days from date 
published in the Federal Register for filing comments on notices of 
intent to prepare an environmental assessment and notice of finding of 
no significant impact and authority to prepare environmental assessments 
of No Significant Impact.
    (h) [Reserved]
    (i) Authority, in the absence or preoccupation of the Managing 
Director and Deputy Managing Directors, to sign travel orders, 
nondocketed recommendations to the Commission, and other routine 
documents for the Managing Director, consistent with the programs, 
policies, and precedents established by the Commission or the Managing 
Director.

[59 FR 954, Jan. 7, 1994, as amended at 59 FR 67227, Dec. 29, 1994; 61 
FR 66617, Dec. 18, 1996]



Sec. 501.25  Delegation to and redelegation by the Managing Director.

    Except where specifically redelegated in this section, the 
authorities listed in

[[Page 16]]

this section are delegated to the Managing Director.
    (a) Authority to adjudicate, with the concurrence of the General 
Counsel, and authorize payment of, employee claims for not more than 
$1,000.00, arising under the Military and Civilian Personnel Property 
Act of 1964, 31 U.S.C. 3721.
    (b) Authority to determine that an exigency of the public business 
is of such importance that annual leave may not be used by employees to 
avoid forfeiture before annual leave may be restored under 5 U.S.C. 
6304.
    (c)(1) Authority under part 514 of this chapter, after consultation 
with the Bureau of Tariffs, Certification and Licensing, to issue 
letters notifying applicants for certification of ATFI batch filing 
capability that their applications have or have not been granted.
    (2) The authority under this paragraph is redelegated to the 
Director, Office of Information Resources Management.
    (d)(1) Authority under Sec. 514.21(m)(2) of this chapter, after 
consultation with the Bureau of Tariffs, Certification and Licensing, to 
evaluate and approve or disapprove by letter the accounting or charging 
system the applicant intends to use for charging users and remitting to 
the Commission indirect (subsequent) access user fees under 46 U.S.C. 
app. 1107a(d)(1)(B)(ii), and by letter to deny access to ATFI data tapes 
for failure to operate under an approved accounting or charging system 
or for failure to remit user fees to the Commission.
    (2) The authority under this paragraph is redelegated to the 
Director, Office of Information Resources Management.

[59 FR 954, Jan. 7, 1994, as amended at 59 FR 62330, Dec. 5, 1994]



Sec. 501.26  Delegation to the Director, Bureau of Economics and Agreement Analysis.

    The authorities listed in this section are delegated to the 
Director, Bureau of Economics and Agreement Analysis.
    (a)-(d)  [Reserved]
    (e) Authority to determine that no action should be taken to prevent 
an agreement or modification to an agreement from becoming effective 
under section 6(c)(1), and to shorten the review period under section 
6(e), of the Shipping Act of 1984, when the agreement or modification 
involves solely a restatement, clarification or change in an agreement 
which adds no new substantive authority beyond that already contained in 
an effective agreement. This category of agreement or modification 
includes, for example, the following: a restatement filed to conform an 
agreement to the format and organization requirements of part 572 of 
this chapter; a clarification to reflect a change in the name of a 
country or port or a change in the name of a party to the agreement; a 
correction of typographical or grammatical errors in the text of an 
agreement; a change in the title of persons or committees designated in 
an agreement; or a transfer of functions from one person or committee to 
another.
    (f) Authority to grant or deny applications filed under Sec. 572.406 
of this chapter for waiver of the form, organization and content 
requirements of Secs. 572.401, 572.402, 572.403, 572.404 and 572.405 of 
this chapter.
    (g) Authority to grant or deny applications filed under Sec. 572.505 
of this chapter for waiver of the information form requirements of 
Secs. 572.503 and 572.504 of this chapter.
    (h) Authority to grant or deny applications filed under Sec. 572.709 
of this chapter for waiver of the reporting and record retention 
requirements of Secs. 572.701, 572.702, 572.703, 572.704, 572.705, 
572.706, 572.707 and 572.708 of this chapter.
    (i) Authority to determine that no action should be taken to prevent 
an agreement or modification of an agreement from becoming effective 
under section 6(c)(1) of the Shipping Act of 1984 for all unopposed 
agreements and modifications to agreements which will not result in a 
significant reduction in competition. Agreements which are deemed to 
have the potential to result in a significant reduction in competition 
and which, therefore, are not covered by this delegation include but are 
not limited to:
    (1) New agreements authorizing the parties to collectively discuss 
or fix rates (including terminal rates).

[[Page 17]]

    (2) New agreements authorizing the parties to pool cargoes or 
revenues.
    (3) New agreements authorizing the parties to establish a joint 
service or consortium.
    (4) New sailing agreements.
    (5) New equal access agreements.
    (j) Authority to grant or deny shortened review pursuant to 
Sec. 572.605 of this chapter for agreements for which authority is 
delegated in paragraph (i) of this section.
    (k) Subject to review by the General Counsel, authority to deny, but 
not approve, requests filed pursuant to Sec. 572.605 of this chapter for 
a shortened review period for agreements for which authority is not 
delegated under paragraph (i) of this section.
    (l) Authority to issue notices of termination of agreements which 
are otherwise effective under the Shipping Act of 1984, after 
publication of notice of intent to terminate in the Federal Register, 
when such terminations are:
    (1) Requested by the parties to the agreement;
    (2) Deemed to have occurred when it is determined that the parties 
are no longer engaged in activity under the agreement and official 
inquiries and correspondence cannot be delivered to the parties; or
    (3) Deemed to have occurred by notification of the withdrawal of the 
next to last party to an agreement without notification of the addition 
of another party prior to the effective date of the next to last party's 
withdrawal.
    (m) Authority to determine whether agreements for the use or 
operation of terminal property or facilities, or the furnishing of 
terminal services, are within the purview of section 5 of the Shipping 
Act of 1984.
    (n) Authority to request controlled carriers to file justifications 
for existing or proposed rates, charges classifications, rules or 
regulations, and review responses to such requests for the purpose of 
recommending to the Commission that a rate, charge, classification, rule 
or regulation be found unlawful and, therefore, requires Commission 
action under section 9(d) of the Shipping Act of 1984.
    (o) Authority to recommend to the Commission the initiation of 
formal proceedings or other actions with respect to suspected violations 
of the shipping statutes and rules and regulations of the Commission.

[59 FR 954, Jan. 7, 1994, as amended at 59 FR 54396, Oct. 31, 1994; 59 
FR 67228, Dec. 29, 1994; 61 FR 9944, Mar. 12, 1996; 61 FR 14032, Mar. 
29, 1996; 61 FR 66617, Dec. 18, 1996]



Sec. 501.27  Delegation to and redelegation by the Director, Bureau of Tariffs, Certification and Licensing.

    Except where specifically redelegated in this section, the 
authorities listed in this section are delegated to the Director, Bureau 
of Tariffs, Certification and Licensing.
    (a)(1) Authority to approve for good cause or disapprove special 
permission applications submitted by common carriers, or conferences of 
such carriers, subject to the provisions of section 8 of the Shipping 
Act, 1984, section 18 of the Shipping Act, 1916, or section 2 of the 
Intercoastal Shipping Act of 1933, for relief from statutory and/or 
Commission tariff requirements.
    (2) The authority under this paragraph is redelegated to the Chief, 
Office of Tariffs, in the Bureau of Tariffs, Certification and 
Licensing.
    (b)(1) Authority to approve or disapprove special permission 
applications submitted by a controlled carrier subject to the provisions 
of section 9 of the Shipping Act of 1984 for relief from statutory and/
or Commission tariff requirements.
    (2) The authority under this paragraph is redelegated to the Chief, 
Office of Tariffs, in the Bureau of Tariffs, Certification and 
Licensing.
    (c)(1) Authority contained in Supplemental Report No. 4 and Order in 
Docket No. 90-23, Notice of Inquiry on Ocean Freight Tariffs in Foreign 
and Domestic Offshore Commerce--Tariffs and Service Contracts, to grant 
special permission to deviate from the requirement that electronically-
filed tariffs become effective no later than 90 days from the last day 
of the applicable filing window.
    (2) The authority under this paragraph is redelegated to the Chief, 
Office of Tariffs, in the Bureau of Tariffs, Certification and 
Licensing.
    (d) Authority contained in Part 514 of this chapter to temporarily 
exempt common carriers from the electronic

[[Page 18]]

tariff filing requirements of that part for a period not to exceed 90 
days from the filing dates set forth in Supplemental Report No. 4 and 
Order, served in Docket No. 90-23 on May 28, 1993.
    (e)(1) Authority to reject tariff filings of common carriers in the 
foreign and domestic offshore commerce of the U.S. or conferences of 
such carriers for failure to meet the requirements of pertinent statutes 
or the Commission's regulations, for lack of completeness or clarity, or 
for noncompliance with special permission or other orders of the 
Commission.
    (2) The authority under this paragraph is redelegated to the Chief, 
Office of Tariffs; Chief, Tariff Control Center and Senior 
Transportation Specialists in the Bureau of Tariffs, Certification and 
Licensing.
    (f) Authority to issue notices of intent to cancel inactive tariffs 
of common carriers in the foreign and domestic offshore commerce and 
marine terminal operators, after a diligent effort has been made to 
locate the carrier/terminal operator without success, or if the carrier/
terminal operator has advised the Commission that it no longer offers a 
carrier/terminal operator service but refuses to cancel its tariff upon 
written request; and to cancel such tariff if, within 30 days after 
publication, the carrier/terminal operator does not furnish reasons why 
such tariff should not be canceled.
    (g)(1) Authority to:
    (i) Approve or disapprove applications for ocean freight forwarder 
licenses; issue or reissue or transfer such licenses; and approve 
extensions of time in which to furnish the name(s) and ocean freight 
forwarding experience of the managing partner(s) or officer(s) who will 
replace the qualified partner or officer upon whose qualifications the 
original licensing was approved;
    (ii) Issue a letter stating that the Commission intends to deny an 
application, unless within 20 days, applicant requests a hearing to show 
that denial of the application is unwarranted; deny applications where 
an applicant has received such a letter and has not requested a hearing 
within the notice period; and rescind, or grant extensions of, the time 
specified in such letters;
    (iii) Revoke the license of an ocean freight forwarder upon the 
request of the licensee;
    (iv) Upon receipt of notice of cancellation of any bond, notify the 
licensee in writing that its license will automatically be suspended or 
revoked, effective on the bond cancellation date, unless a new or 
reinstated bond is submitted and approved prior to such date, and 
subsequently order such suspension or revocation for failure to maintain 
a bond;
    (v) Approve changes in an existing licensee's organization; and
    (vi) Return any application which on its face fails to meet the 
requirements of the Commission's regulations, accompanied by an 
explanation of the reasons for rejection.
    (2) The authorities contained in paragraphs (g)(1)(iii) and 
(g)(1)(iv) of this section are redelegated to the Chief, Office of 
Freight Forwarders, in the Bureau of Tariffs, Certification and 
Licensing.
    (h) Authority to:
    (1) Approve applications for Certificates (Performance) and 
Certificates (Casualty) evidenced by a surety, insurance or guaranty 
issued by an approved entity, and issue, reissue, or amend such 
Certificates;
    (2) Issue a written notice to an applicant stating intent to deny an 
application for a Certificate (Performance) and/or (Casualty), 
indicating the reason therefor, and advising applicant of the time for 
requesting a hearing as provided for under Sec. 540.26(c) of this 
chapter; deny any application where the applicant has not submitted a 
timely request for a hearing; and rescind such notices and grant 
extensions of the time within which a request for hearing may be filed;
    (3) Issue a written notice to a certificant stating that the 
Commission intends to revoke, suspend, or modify a Certificate 
(Performance) and/or (Casualty), indicating the reason therefor, and 
advising of the time for requesting a hearing as provided for under 
Sec. 540.26(c) of this chapter; revoke, suspend or modify a Certificate 
(Performance) and/or (Casualty) where the certificant has not submitted 
a timely request for hearing; and rescind such notices and grant 
extensions of time

[[Page 19]]

within which a request for hearing may be filed;
    (4) Revoke a Certificate (Performance) and/or (Casualty) which has 
expired, and/or upon request of, or acquiescence by, the certificant; 
and
    (5) Notify a certificant when a Certificate (Performance) and/or 
(Casualty) has become null and void in accordance with Secs. 540.8(a) 
and 540.26(a) of this chapter.
    (i) Authority contained in Sec. 514.7(j) of this chapter to notify 
filing parties of the Commission's intent to reject a service contract 
and/or statement of essential terms and subsequently reject and return 
such contracts.
    (j) Authority contained in part 514 of this chapter to approve, but 
not deny, requests for permission to correct clerical or administrative 
errors in the essential terms of filed service contracts.
    (k) Authority contained in parts 514 and 583 of this chapter to 
cancel the tariffs of NVOCCs who fail to file a surety bond, guaranty or 
insurance policy or, if required, designate an agent for receipt of 
process, or whose surety bond or agent designation is canceled.
    (l) Authority contained in Parts 514 and 582 of this chapter to 
cancel the tariff or tariffs of any common carrier, and suspend the 
license of any ocean freight forwarder, who fails to file an anti-rebate 
certification.
    (m) Authority to approve or disapprove applications as specified in 
Part 552 of this chapter for extensions of time for filing 
(Sec. 552.2(c)), alternative data (Sec. 552.2(d)) and waiver of detailed 
filing requirements (Sec. 552.2(e)).
    (n) Authority contained in Sec. 514.8(d)(4)(ii) of this chapter to 
approve minor changes and additions to transaction set data for the ATFI 
system. Such minor changes include additions to any of the following 
term and reference lists: Cities; States and Provinces; Countries; 
Ports; Container sizes; Container types; Container temperatures; Hazard 
codes; Inland modes, Packaging types, Rate bases; Service types; 
Stuffing mode; Stripping mode; and Currencies.
    (o)  [Reserved]
    (p) Authority to review and determine the validity of alleged or 
suspected violations, exclusive of formal complaints, of the shipping 
statutes and rules and regulations of the Commission by freight 
forwarders; authority to determine corrective action necessary with 
respect to violations except where violations involve major questions of 
policy or major interpretations of statutes, or orders, rules, and 
regulations of the Commission, or acts having material effect upon the 
commerce of the U.S.; and authority to recommend to the Commission the 
initiation of formal proceedings or other actions with respect to such 
alleged or suspected violations.

[59 FR 954, Jan. 7, 1994, as amended at 59 FR 54396, Oct. 31, 1994; 60 
FR 27229, May 23, 1995; 60 FR 27698, May 25, 1995]



Sec. 501.28  Delegation to the Director, Bureau of Enforcement.

    The authorities listed in this section are delegated to the 
Director, Bureau of Enforcement. Notwithstanding the provisions of 
Sec. 501.21, the Director may delegate or redelegate, in writing, 
specific authority to individuals within the Bureau of Enforcement other 
than the Deputy Director.
    (a) Authority to compromise civil penalty claims has been delegated 
to the Director, Bureau of Enforcement, by Sec. 502.604(g) of this 
chapter. This delegation shall include the authority to compromise 
issues relating to the retention, suspension or revocation of ocean 
freight forwarder licenses. See also Secs. 501.5(i) and 501.21.
    (b) Authority to approve administrative leave for Area 
Representatives.

[60 FR 57941, Nov. 24, 1995, as amended at 61 FR 51231, Oct. 1, 1996]



Sec. 501.29  [Reserved]



Sec. 501.30  Delegation to and redelegation by the Director, Bureau of Administration.

    Except where specifically redelegated in this section, the 
authorities listed in this section are delegated to the Director, Bureau 
of Administration, and, in the absence or preoccupation of the Director, 
to the Deputy Director of that Bureau.
    (a)(1) Authority is delegated to the Director, Bureau of 
Administration, to approve, certify, or otherwise authorize those 
actions dealing with appropriations of funds made available to the

[[Page 20]]

Commission including allotments, fiscal matters, and contracts relating 
to the operation of the Commission within the laws, rules, and 
regulations set forth by the Federal Government.
    (2) The authority under this paragraph is redelegated to the 
Director, Office of Budget and Financial Management.
    (b)(1) Authority is delegated to the Director, Bureau of 
Administration, to classify all positions GS-1 through GS-15 and wage 
grade positions.
    (2) The authority under this paragraph is redelegated to the 
Director, Office of Personnel.

[59 FR 954, Jan. 7, 1994, as amended at 59 FR 44641, Aug. 30, 1994. 
Redesignated and amended at 59 FR 62330, Dec. 5, 1994]



               Subpart D--Public Requests for Information



Sec. 501.41  Public requests for information and decisions.

    (a) General. Pursuant to 5 U.S.C. 552(a)(1)(A), there is hereby 
stated and published for the guidance of the public the established 
places at which, the officers from whom, and the methods whereby, the 
public may secure information, make submittals or requests, or obtain 
decisions, principally by contacting by telephone, in writing, or in 
person, either the Secretary of the Commission at the Federal Maritime 
Commission, 800 North Capitol Street, NW., Washington, DC 20573, or the 
Area Representatives listed in paragraph (d) of this section. See also 
part 503 of this chapter.
    (b) The Secretary will provide information and decisions, and will 
accept and respond to requests, relating to the program activities of 
the Office of the Secretary and of the Commission, generally. Unless 
otherwise provided in this chapter, any document, report, or other 
submission required to be filed with the Commission by statute or the 
Commission's rules and regulations relating to the functions of the 
Commission or of the Office of the Secretary shall be filed with or 
submitted to the Secretary.
    (c) The Directors of the following bureaus and offices will provide 
information and decisions, and will accept and respond to requests, 
relating to the specific functions or program activities of their 
respective bureaus and offices as set forth in this chapter; but only if 
the dissemination of such information or decisions is not prohibited by 
statute or the Commission's Rules of Practice and Procedure:
    (1) Office of the General Counsel;
    (2) Office of the Administrative Law Judges;
    (3) Office of the Managing Director;
    (4) Office of the Inspector General ;
    (5) Office of Equal Employment Opportunity;
    (6) Bureau of Enforcement;
    (7) Bureau of Economics and Agreement Analysis;
    (8) Bureau of Tariffs, Certification and Licensing;
    (9) [Reserved];
    (10) Bureau of Administration;
    (11) Office of Personnel;
    (12) Office of Budget and Financial Management;
    (13) Office of Information Resources Management;
    (14) Office of Administrative Services; and
    (15) Office of Informal Inquiries, Complaints and Informal Dockets.
    (d) The Area Representatives will provide information and decisions 
to the public within their geographic areas, or will expedite the 
obtaining of information and decisions from headquarters. The addresses 
of these Area Representatives are as follows. Further information on 
Area Representatives, including Internet E-mail addresses, can be 
obtained on the Commission's home page on the World Wide Web at 
``www.fmc.gov.''

                               Los Angeles

Los Angeles Area Representative, U.S. Customs House Building, P.O. Box 
    3164, 300 S. Ferry Street, Room 1018, Terminal Island Station, San 
    Pedro, CA 90731

                                  Miami

Miami Area Representative, Customs Management Center, 909 SE, 1st Ave., 
    Room 736, Miami, FL 33131

[[Page 21]]

                               New Orleans

New Orleans Area Representative, U.S. Customs House, 423 Canal Street, 
    Room 303, New Orleans, LA 70130

                                 Seattle

Seattle Area Representative, U.S. Customs, 3236 16th Ave., SW, Seattle, 
    WA 98134

                             North Atlantic

North Atlantic Area Representative, Federal Maritime Commission, 800 
    North Capitol Street, NW., Suite 928, Washington, DC 20573

    (e) Any document, report or other submission required to be filed 
with the Commission by statute or the Commission's rules and regulations 
relating to the specific functions of the bureaus and offices shall be 
filed with or submitted to the Director of such Bureau or Office.

[59 FR 954, Jan. 7, 1994, as amended at 59 FR 67228, Dec. 29, 1994; 60 
FR 57941, Nov. 24, 1995; 61 FR 51231, Oct. 1, 1996]

[[Page 22]]

[GRAPHIC] [TIFF OMITTED] TC03MR91.033

[61 FR 51232, Oct. 1, 1996]

[[Page 23]]



PART 502--RULES OF PRACTICE AND PROCEDURE--Table of Contents




                     Subpart A--General Information

Sec.
502.1  Scope of rules in this part.
502.2  Filing of documents; hours; mailing address.
502.3  Compliance with rules or orders of Commission.
502.4  Authentication of rules or orders of Commission.
502.5-502.6  [Reserved]
502.7  Documents in foreign languages.
502.8  Denial of applications and notice thereof.
502.9  Suspension, amendment, etc., of rules in this part.
502.10  Waiver of rules in this part.
502.11  Disposition of improperly filed documents and ex parte 
          communications.
502.12  Applicability of Federal Rules of Civil Procedure.

        Subpart B--Appearance and Practice Before the Commission

502.21  Appearance.
502.22  Authority for representation.
502.23  Notice of appearance; written appearance; substitutions.
502.24  Practice before the Commission defined.
502.25  Presiding officer defined.
502.26  Attorneys at law.
502.27  Persons not attorneys at law.
502.29  Hearings.
502.30  Suspension or disbarment.
502.31  Statement of interest.
502.32  Former employees.

Exhibit No. 1 to Subpart B [Secs. 502.23, 502.26, 502.27]--Notice of 
          Appearance

                           Subpart C--Parties

502.41  Parties; how designated.
502.42  Bureau of Enforcement.
502.43  Substitution of parties.
502.44  Necessary and proper parties in certain complaint proceedings.

                          Subpart D--Rulemaking

502.51  Petition for issuance, amendment, or repeal of rule.
502.52  Notice of proposed rulemaking.
502.53  Participation in rulemaking.
502.54  Contents of rules.
502.55  Effective date of rules.
502.56  Negotiated rulemaking.

           Subpart E--Proceedings; Pleadings; Motions; Replies

502.61  Proceedings.
502.62  Complaints and fee.
502.63  Reparation; statute of limitations.
502.64  Answer to complaint; counter-complaint.
502.65  Replies to answers not permitted.
502.66  Order to show cause.
502.67  [Reserved]
502.68  Declaratory orders and fee.
502.69  Petitions--general and fee.
502.70  Amendments or supplements to pleadings.
502.71  Motions for more definite statement.
502.72  Petition for leave to intervene.
502.73  Motions.
502.74  Replies to pleadings, motions, applications, etc.
502.75  Proceedings involving assessment agreements.
502.76  Brief of an amicus curiae.

Exhibit No. 1 to Subpart E [Sec. 502.62]--Complaint Form and Information 
          Checklist
Exhibit No. 2 to Subpart E [Sec. 502.64]--Answer to Complaint
Exhibit No. 3 to Subpart E [Sec. 502.72]--Petition for Leave to 
          Intervene

               Subpart F--Settlement; Prehearing Procedure

502.91  Opportunity for informal settlement.
502.92  Special docket applications and fee.
502.94  Prehearing conference.
502.95  Prehearing statements.

Exhibit No. 1 to Subpart F [Sec. 502.92]--Application for Refund of or 
          Waiver for Freight Charges Due to Tariff Error

                             Subpart G--Time

502.101  Computation.
502.102  Enlargement of time to file documents.
502.103  Reduction of time to file documents.
502.104  Postponement of hearing.
502.105  Waiver of rules governing enlargements of time and 
          postponements of hearings.

          Subpart H--Form, Execution, and Service of Documents

502.111  Form and appearance of documents filed with Commission.
502.112  Subscription and verification of documents.
502.113  Service by the Commission.
502.114  Service and filing by parties.
502.115  Service on attorney or other representative.
502.116  Date of service.
502.117  Certificate of service.
502.118  Copies of documents for use of the Commission.
502.119  Documents containing confidential materials.

[[Page 24]]

                           Subpart I--Subpenas

502.131  Requests; issuance.
502.132  Motions to quash or modify.
502.133  Attendance and mileage fees.
502.134  Service of subpenas.
502.135  Subpena of Commission staff personnel, documents or things.
502.136  Enforcement.

            Subpart J--Hearings; Presiding Officers; Evidence

502.141  Hearings not required by statute.
502.142  Hearings required by statute.
502.143  Notice of nature of hearing, jurisdiction and issues.
502.144  Notice of time and place of hearing.
502.145  Presiding officer.
502.146  Commencement of functions of Office of Administrative Law 
          Judges.
502.147  Functions and powers.
502.148  Consolidation of proceedings.
502.149  Disqualification of presiding or participating officer.
502.150  Further evidence required by presiding officer during hearing.
502.151  Exceptions to rulings of presiding officer unnecessary.
502.152  Offer of proof.
502.153  Appeal from ruling of presiding officer other than orders of 
          dismissal in whole or in part.
502.154  Rights of parties as to presentation of evidence.
502.155  Burden of proof.
502.156  Evidence admissible.
502.157  Written evidence.
502.158  Documents containing matter not material.
502.159  [Reserved]
502.160  Records in other proceedings.
502.161  Commission's files.
502.162  Stipulations.
502.163  Receipt of documents after hearing.
502.164  Oral argument at hearings.
502.165  Official transcript.
502.166  Corrections of transcript.
502.167  Objection to public disclosure of information.
502.168  Copies of data or evidence.
502.169  Record of decision.

                     Subpart K--Shortened Procedure

502.181  Selection of cases for shortened procedure; consent required.
502.182  Complaint and memorandum of facts and arguments and filing fee.
502.183  Respondent's answering memorandum.
502.184  Complainant's memorandum in reply.
502.185  Service of memoranda upon and by interveners.
502.186  Contents of memoranda.
502.187  Procedure after filing of memoranda.

     Subpart L--Depositions, Written Interrogatories, and Discovery

502.201  General provisions governing discovery.
502.202  Persons before whom depositions may be taken.
502.203  Depositions upon oral examination.
502.204  Depositions upon written interrogatories.
502.205  Interrogatories to parties.
502.206  Production of documents and things and entry upon land for 
          inspection and other purposes.
502.207  Requests for admission.
502.208  Use of discovery procedures directed to Commission staff 
          personnel.
502.209  Use of depositions at hearings.
502.210  Refusal to comply with orders to answer or produce documents; 
          sanctions; enforcement.

     Subpart M--Briefs; Requests for Findings; Decisions; Exceptions

502.221  Briefs; requests for findings.
502.222  Requests for enlargement of time for filing briefs.
502.223  Decisions--administrative law judges.
502.224  Separation of functions.
502.225  Decisions--contents and service.
502.226  Decision based on official notice; public documents.
502.227  Exceptions to decisions or orders of dismissal of 
          administrative law judges; replies thereto; and review of 
          decisions or orders of dismissal by Commission.
502.228  Request for enlargement of time for filing exceptions and 
          replies thereto.
502.229  Certification of record by presiding or other officer.
502.230  Reopening by presiding officer or Commission.

         Subpart N--Oral Argument; Submission for Final Decision

502.241  Oral argument.
502.242  Submission to Commission for final decision.
502.243  Participation of absent Commissioner.

                          Subpart O--Reparation

502.251  Proof on award of reparation.
502.252  Reparation statements.
502.253  Interest in reparation proceedings.
502.254  Attorney's fees in reparation proceedings.

Exhibit No. 1 to Subpart O [Sec. 502.252]--Reparation Statement to be 
          Filed Pursuant to Rule 252

[[Page 25]]

                Subpart P--Reconsideration of Proceedings

502.261  Petitions for reconsideration and stay.
502.262  Reply to petition for reconsideration or stay.

                     Subpart Q--Schedules and Forms

502.271  Schedule of information for presentation in regulatory cases.

                Subpart R--Nonadjudicatory Investigations

502.281  Investigational policy.
502.282  Initiation of investigations.
502.283  Order of investigation.
502.284  By whom conducted.
502.285  Investigational hearings.
502.286  Compulsory process.
502.287  Depositions.
502.288  Reports.
502.289  Noncompliance with investigational process.
502.290  Rights of witness.
502.291  Nonpublic proceedings.

     Subpart S--Informal Procedure for Adjudication of Small Claims

502.301  Statement of policy.
502.302  Limitations of actions.
502.303  [Reserved]
502.304  Procedure and filing fee.
502.305  Applicability of other rules of this part.

Exhibit No. 1 to Subpart S [Sec. 502.304(a)]--Small Claim Form for 
          Informal Adjudication and Information Checklist
Exhibit No. 2 to Subpart S [Sec. 502.304(e)]--Respondent's Consent Form 
          for Informal Adjudication

      Subpart T--Formal Procedure for Adjudication of Small Claims

502.311  Applicability.
502.312  Answer to complaint.
502.313  Reply of complainant.
502.314  Additional information.
502.315  Request for oral hearing.
502.316  Intervention.
502.317  Oral argument.
502.318  Decision.
502.319  Date of service and computation of time.
502.320  Service.
502.321  Applicability of other rules of this part.

                     Subpart U--Conciliation Service

502.401  Definitions.
502.402  Policy.
502.403  Persons eligible for service.
502.404  Procedure and fee.
502.405  Assignment of conciliator.
502.406  Advisory opinion.

    Subpart V--Implementation of the Equal Access to Justice Act in 
                         Commission Proceedings

502.501  General provisions.
502.502  Information required from applicants.
502.503  Procedures for considering petitions.

     Subpart W--Compromise, Assessment, Mitigation, Settlement, and 
                      Collection of Civil Penalties

502.601  Purpose and scope.
502.602  Definitions.
502.603  Assessment of civil penalties: Procedure; criteria for 
          determining amount; limitations; relation to compromise.
502.604  Compromise of penalties: Relation to assessment proceedings.
502.605  Payment of penalty: Method; default.

Appendix A to Subpart W--Example of Compromise Agreement To Be Used 
          Under 46 CFR 502.604

                   Subpart X--Paperwork Reduction Act

502.991  OMB control numbers assigned pursuant to the Paperwork 
          Reduction Act.

    Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 571-
596; 12 U.S.C. 1114j(a); 18 U.S.C. 207; 26 U.S.C. 501(c)(3); 28 U.S.C. 
2112(a); 31 U.S.C. 9701; 46 U.S.C. app. 817, 820, 821, 826, 841a, 
1114(b), 1705, 1707-1711, 1713-1716; E.O. 11222 of May 8, 1965 (30 FR 
6469); 21 U.S.C. 862; and Pub. L 88-777 (46 U.S.C. app 817d, 817e).

    Source: 49 FR 44369, Nov. 6, 1984, unless otherwise noted.



                     Subpart A--General Information



Sec. 502.1  Scope of rules in this part.

    The rules in this part govern procedure before the Federal Maritime 
Commission, hereinafter referred to as the Commission, under the 
Shipping Act, 1916, Merchant Marine Act, 1920, Intercoastal Shipping 
Act, 1933, Merchant Marine Act, 1936, Shipping Act of 1984, 
Administrative Procedure Act, and related acts, except that subpart R of 
this part does not apply to proceedings subject to sections 7 and 8 of 
the Administrative Procedure Act, which are to be governed only by 
subparts A to Q inclusive, of this part. They shall be construed to 
secure the just, speedy, and inexpensive determination of every

[[Page 26]]

proceeding. [Rule 1.] To this end, all persons involved in proceedings 
conducted under the rules of this part shall be required to consider at 
an early stage of the proceeding whether resort to alternative dispute 
resolution techniques would be appropriate or useful.

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993]



Sec. 502.2  Filing of documents; hours; mailing address.

    (a) For purposes of filing of documents with the Commission, the 
hours of the Commission are from 8:30 a.m. to 5:00 p.m., Monday to 
Friday, inclusive.
    (b) Except for exhibits filed pursuant to Sec. 502.118(b)(4) and 
petitions for review of final agency orders served on the Commission 
pursuant to 28 U.S.C. 2112(a), all documents required to be filed in, 
and correspondence relating to proceedings governed by this part should 
be addressed to Secretary, Federal Maritime Commission, Washington, DC 
20573-0001. Petitions for review of final agency orders served on the 
Commission pursuant to 28 U.S.C. 2112(a) shall be addressed to General 
Counsel, Office of the General Counsel, Federal Maritime Commission, 
Washington, DC 20573-0001.
    (c) Documents relating to any matter pending before the 
Commissioners for decision or to any matter pending before the 
Commission which is likely to come before the Commissioners for 
decision, whether or not relating to proceedings governed by this part, 
shall similarly be filed with the Secretary, Federal Maritime 
Commission. Such documents should not be filed with or separately 
submitted to the offices of individual Commissioners. Distribution to 
Commissioners and other agency personnel is handled by the Office of the 
Secretary, to ensure that persons in decision-making and advisory 
positions receive in a uniform and impersonal manner identical copies of 
submissions, and to avoid the possibility of ex parte communications 
within the meaning of Sec. 502.11(b). These considerations apply to 
informal and oral communications as well, such as requests for expedited 
consideration.
    (d) No filings relating to matters scheduled for a Commission 
meeting will be accepted by the Secretary if submitted subsequent to 
public announcement of the particular meeting, except that the 
Commission, on its own initiative, or pursuant to a written request, may 
in its discretion, permit a departure from this limitation for 
exceptional circumstances. (See Sec. 503.82(e) of this chapter.) [Rule 
2.]

[52 FR 27002, July 17, 1987, as amended at 53 FR 13270, Apr. 22, 1988]



Sec. 502.3  Compliance with rules or orders of Commission.

    Persons named in a rule or order shall notify the Commission during 
business hours on or before the day on which such rule or order becomes 
effective whether they have complied therewith, and if so, the manner in 
which compliance has been made. If a change in rates is required, the 
notification shall specify the tariffs which effect the changes. [Rule 
3.]



Sec. 502.4  Authentication of rules or orders of Commission.

    All rules or orders issued by the Commission in any proceeding 
covered by this part shall, unless otherwise specifically provided, be 
signed and authenticated by seal by the Secretary of the Commission in 
the name of the Commission. [Rule 4.]



Secs. 502.5--502.6  [Reserved]



Sec. 502.7  Documents in foreign languages.

    Every document, exhibit, or other paper written in a language other 
than English and filed with the Commission or offered in evidence in any 
proceeding before the Commission under this part or in response to any 
rule or order of the Commission pursuant to this part, shall be filed or 
offered in the language in which it is written and shall be accompanied 
by an English translation thereof duly verified under oath to be an 
accurate translation. [Rule 7.]



Sec. 502.8  Denial of applications and notice thereof.

    Except in affirming a prior denial or where the denial is self-
explanatory, prompt written notice will be given of the denial in whole 
or in part of any written application, petition, or other

[[Page 27]]

request made in connection with any proceeding under this part, such 
notice to be accompanied by a simple statement of procedural or other 
grounds for the denial, and of any other or further administrative 
remedies or recourse applicant may have where the denial is based on 
procedural grounds. [Rule 8.]



Sec. 502.9  Suspension, amendment, etc., of rules in this part.

    The rules in this part may, from time to time, be suspended, 
amended, or revoked, in whole or in part. Notice of any such action will 
be published in the Federal Register. [Rule 9.]



Sec. 502.10  Waiver of rules in this part.

    Except to the extent that such waiver would be inconsistent with any 
statute, any of the rules in this part, except Secs. 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. [Rule 10.]



Sec. 502.11  Disposition of improperly filed documents and ex parte communications.

    (a) Documents not conforming to rules. Any pleading, document, 
writing or other paper submitted for filing which is rejected because it 
does not conform to the rules in this part shall be returned to the 
sender;
    (b) Ex parte communications. (1) No person who is a party to or an 
agent of a party to any proceeding as defined in Sec. 502.61 or who 
directly participates in any such proceeding and no interested person 
outside the Commission shall make or knowingly cause to be made to any 
Commission member, administrative law judge, or Commission employee who 
is or may reasonably be expected to be involved in the decisional 
process of any such proceeding, an ex parte communication relevant to 
the merits of the proceeding;
    (2) No Commission member, administrative law judge, or Commission 
employee who is or may reasonably be expected to be involved in the 
decisional process of any agency proceeding, shall make or knowingly 
cause to be made to any interested persons outside the Commission or to 
any party to the proceeding or its agent or to any direct participant in 
a proceeding, an ex parte communication relevant to the merits of the 
proceeding. This prohibition shall not be construed to prevent any 
action authorized by paragraphs (b) (5), (6) and (7) of this section;
    (3) ``Ex parte communication'' means an oral or written 
communication not on the public record with respect to which reasonable 
prior notice to all parties is not given, but it shall not include 
requests for status reports or communications regarding purely 
procedural matters or matters which the Commission or member thereof, 
administrative law judge, or Commission employee is authorized by law or 
these rules to dispose of on an ex parte basis;
    (4) Any Commission member, administrative law judge, or Commission 
employee who is or may reasonably be expected to be involved in the 
decisional process of any proceeding who receives, or who makes or 
knowingly causes to be made, an ex parte communication shall promptly 
transmit to the Secretary of the Commission:
    (i) All such written communications;
    (ii) Memoranda stating the substance of all such oral 
communications; and
    (iii) All written responses and memoranda stating the substance of 
all oral responses to the materials described in paragraphs (b)(4)(i) 
and (b)(4)(ii) of this section;
    (5) The Secretary shall place the materials described in paragraph 
(b)(4) of this section in the correspondence part of the public docket 
of the proceeding and may take such other action as may be appropriate 
under the circumstances;
    (6) Upon receipt of an ex parte communication knowingly made or 
knowingly caused to be made by a party to a proceeding, the Commission 
or the presiding officer may, to the extent consistent with the 
interests of justice and the policy of the statutes administered by the 
Commission, require the party to show cause why his or her claim or 
interest in the proceeding should not be dismissed, denied, disregarded, 
or otherwise adversely affected on account of the making of such 
communication;

[[Page 28]]

    (7) An ex parte communication shall not constitute a part of the 
record for decision. The Commission or the presiding officer may, to the 
extent consistent with the interests of justice and the policy of the 
statutes administered by the Commission, consider a violation of 
paragraph (b) of this section sufficient grounds for a decision adverse 
to a party who has knowingly caused such violation to occur and may take 
such other action as may be appropriate under the circumstances. [Rule 
11.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.12  Applicability of Federal Rules of Civil Procedure.

    In proceedings under this part, for situations which are not covered 
by a specific Commission rule, the Federal Rules of Civil Procedure will 
be followed to the extent that they are consistent with sound 
administrative practice.

[58 FR 27210, May 7, 1993]



        Subpart B--Appearance and Practice Before the Commission



Sec. 502.21  Appearance.

    (a) Parties. A party may appear in person or by an officer, partner, 
or regular employee of the party, or by or with counsel or other duly 
qualified representative, in any proceeding under the rules in this 
part. Any party or his or her representative may testify, produce and 
examine witnesses, and be heard upon brief and at oral argument if oral 
argument is granted.
    (b) Persons not parties. One who appears in person before the 
Commission or a representative thereof, either by compulsion from, or 
request or permission of the Commission, shall be accorded the right to 
be accompanied, represented, and advised by counsel.
    (c) Special requirement. An appearance may be either general, that 
is, without reservation, or it may be special, that is, confined to a 
particular issue or question. If a person desires to appear specially, 
he or she must expressly so state when entering the appearance and, at 
that time, shall also state the questions or issues to which he or she 
is confining the appearance; otherwise his or her appearance will be 
considered as general. [Rule 21.]



Sec. 502.22  Authority for representation.

    Any individual acting in a representative capacity in any proceeding 
before the Commission may be required to show his or her authority to 
act in such capacity. [Rule 22.]



Sec. 502.23  Notice of appearance; written appearance; substitutions.

    (a) Within twenty (20) days after service of an order or complaint 
instituting a proceeding, complainants, respondents, and/or petitioners 
named therein shall notify the Commission of the name(s) and address(es) 
of the person or persons who will represent them in the pending 
proceeding. Each person who appears at a hearing shall deliver a written 
notice of appearance to the reporter, stating for whom the appearance is 
made. All appearances shall be noted in the record. Petitions for leave 
to intervene shall indicate the name(s) and address(es) of the person or 
persons who will represent the intervenor in the pending proceeding if 
the petition is granted. If an attorney or other representative of 
record is superseded, there shall be filed a stipulation of substitution 
signed both by the attorney(s) or representative(s) and by the party, or 
a written notice from the client to the Commission.
    (b) A form of Notice of Appearance is set forth in Exhibit No. 1 to 
this subpart. This form also contains a request and authorization for 
counsel to be notified immediately of the service of decisions of the 
presiding officer and the Commission by collect telephone call or 
telegram. Copies of this form may be obtained from the Office of the 
Secretary. [Rule 23.]



Sec. 502.24  Practice before the Commission defined.

    (a) Practice before the Commission shall be deemed to comprehend all 
matters connected with the presentation of any matter to the Commission, 
including the preparation and filing of necessary documents, and 
correspondence with and communications to the Commission, on one's own 
behalf or representing another. (See Sec. 502.32).

[[Page 29]]

    (b) The term ``Commission'' as used in this subpart includes any 
bureau, division, office, branch, section, unit, or field office of the 
Federal Maritime Commission and any officer or employee of such bureau, 
division, office, branch, section, unit, or field office. [Rule 24.]



Sec. 502.25  Presiding officer defined.

    ``Presiding officer'' means and shall include (a) any one or more of 
the members of the Commission (not including the Commission when sitting 
as such), (b) one or more administrative law judges or (c) one or more 
officers authorized by the Commission to conduct nonadjudicatory 
proceedings when duly designated to preside at such proceedings. (See 
subpart J of this part.) [Rule 25.]



Sec. 502.26  Attorneys at law.

    Attorneys at law who are admitted to practice before the Federal 
courts or before the courts of any State or Territory of the United 
States may practice before the Commission. An attorney's own 
representation that he is such in good standing before any of the courts 
herein referred to will be sufficient proof thereof, if made in writing 
and filed with the Secretary. [Rule 26.]



Sec. 502.27  Persons not attorneys at law.

    (a)(1) Any person who is not an attorney at law may be admitted to 
practice before the Commission if he or she is a citizen of the United 
States and files proof to the satisfaction of the Commission that he or 
she possesses the necessary legal, technical, or other qualifications to 
render valuable service before the Commission and is otherwise competent 
to advise and assist in the presentation of matters before the 
Commission. Applications by persons not attorneys at law for admission 
to practice before the Commission shall be made on the forms prescribed 
therefor, which may be obtained from the Secretary of the Commission, 
and shall be addressed to the Federal Maritime Commission, Washington, 
DC, 20573, and shall be accompanied by a fee as required by 
Sec. 503.43(h) of this chapter.
    (2) All applicants must complete the following certification:

    I. ______ (Name ______, certify under penalty of perjury under the 
laws of the United States, that I have not been convicted, after 
September 1, 1989, of any Federal or State offense involving the 
distribution or possession of a controlled substance, or that if I have 
been so convicted, I am not ineligible to receive Federal benefits, 
either by court order or operation of law, pursuant to 21 U.S.C. 862.

    (b) No person who is not an attorney at law and whose application 
has not been approved shall be permitted to practice before the 
Commission.
    (c) Paragraph (b) of this section and the provisions of Secs. 502.29 
and 502.30 shall not apply, however, to any person who appears before 
the Commission on his or her own behalf or on behalf of any corporation, 
partnership, or association of which he or she is a partner, officer, or 
regular employee. [Rule 27.]

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 42194, Oct. 18, 1990; 58 
FR 58976, Nov. 5, 1993; 62 FR 6132, Feb. 11, 1997]



Sec. 502.29  Hearings.

    The Commission, in its discretion, may call upon the applicant for a 
full statement of the nature and extent of his or her qualifications. If 
the Commission is not satisfied as to the sufficiency of the applicant's 
qualifications, it will so notify him or her by registered mail, 
whereupon he or she shall be granted a hearing upon request for the 
purpose of showing his or her qualifications. If the applicant presents 
to the Commission no request for such hearing within twenty (20) days 
after receiving the notification above referred to, his or her 
application shall be acted upon without further notice. [Rule 29.]



Sec. 502.30  Suspension or disbarment.

    The Commission may deny admission to, suspend, or disbar any person 
from practice before the Commission who it finds does not possess the 
requisite qualifications to represent others or is lacking in character, 
integrity, or proper professional conduct. Any person who has been 
admitted to practice before the Commission may be disbarred from such 
practice only after being afforded an opportunity to be heard. [Rule 
30.]

[[Page 30]]



Sec. 502.31  Statement of interest.

    The Commission may call upon any practitioner for a full statement 
of the nature and extent of his or her interest in the subject matter 
presented by him or her before the Commission. [Rule 31.]



Sec. 502.32  Former employees.

    Title V of the Ethics in Government Act proscribes certain 
activities by certain former Federal employees (18 U.S.C. 207). In 
summary, as applied to former Commission employees, the restrictions and 
basic procedures are as follows:
    (a) Restrictions. (1) No former Commission employee may represent in 
any formal or informal appearance or make any oral or written 
communication with intent to influence a U.S. Government agency in a 
particular matter involving a specific party or parties in which the 
employee participated personally and substantially while with the 
Commission.
    (2) No former Commission employee may, within two years of 
terminating Commission employment, act as a representative in the manner 
described in paragraph (a)(1) of this section, as to a particular matter 
which was actually pending under the employee's official responsibility 
within one year prior to termination of the employment.
    (3) Former senior Commission employees (defined as Commissioners and 
members of the Senior Executive Service as designated by the Office of 
Government Ethics under 18 U.S.C. 207(d)(1)) may not, for two years 
after terminating Commission employment, assist in representing a person 
by personal presence at an appearance before the Government on a matter 
in which the former employee had participated personally and 
substantially while at the Commission.
    (4) Former senior Commission employees, as defined in paragraph 
(a)(3) of this section, are barred for one year from representing 
parties before the Commission or communicating with intent to influence 
the Commission, regardless of prior involvement in the particular 
proceeding.
    (b) Prior consent for appearance. (1) Prior to making any 
appearance, representation or communication described in paragraph (a) 
of this section, and, in addition to other requirements of this subpart, 
every former employee must apply for and obtain prior written consent of 
the Commission for each proceeding or matter in which such appearance, 
representation, or communication is contemplated. Such consent will be 
given only if the Commission determines that the appearance, 
representation or communication is not prohibited by the Act, this 
section or other provisions of this chapter.
    (2) To facilitate the Commission's determination that the intended 
activity is not prohibited, applications for written consent shall:
    (i) Be directed to the Commission, state the former connection of 
the applicant with the Commission and date of termination of employment, 
and identify the matter in which the applicant desires to appear; and
    (ii) Be accompanied by an affidavit to the effect that the matter 
for which consent is requested is not a matter in which the applicant 
participated personally and substantially while at the Commission and, 
as made applicable by paragraph (a) of this section, that the particular 
matter as to which consent is requested was not pending under the 
applicant's official responsibility within one year prior to termination 
of employment and that the matter was not one in which the former 
employee had participated personally and substantially while at the 
Commission. The statements contained in the affidavit shall not be 
sufficient if disproved by an examination of the files and records of 
the case.
    (3) The applicant shall be promptly advised as to his or her 
privilege to appear, represent or communicate in the particular matter, 
and the application, affidavit and consent, or refusal to consent, shall 
be filed by the Commission in its records relative thereto.
    (c) Basic procedures for possible violations. The following basic 
guidelines for administrative enforcement restrictions on post 
employment activities are designed to expedite consultation with the 
Director of the Office of Government Ethics as required pursuant to 
section 207(j) of Title 18, United States Code.

[[Page 31]]

    (1) Delegation. The Chairman may delegate his or her authority under 
this subpart.
    (2) Initiation of administrative disciplinary hearing. (i) On 
receipt of information regarding a possible violation of 18 U.S.C. 207, 
and after determining that such information appears substantiated, the 
Chairman shall expeditiously provide such information, along with any 
comments or agency regulations, to the Director of the Office of 
Government Ethics and to the Criminal Division, Department of Justice. 
The Commission shall coordinate any investigation or administrative 
action with the Department of Justice to avoid prejudicing criminal 
proceedings, unless the Department of Justice communicates to the 
Commission that it does not intend to initiate criminal prosecution.
    (ii) Whenever the Commission has determined after appropriate review 
that there is reasonable cause to believe that a former Commission 
employee has violated any provision of paragraph (a) of this section or 
18 U.S.C. 207 (a), (b), or (c), it may initiate an administrative 
disciplinary proceeding by providing the former Commission employee with 
notice as defined in paragraph (c)(3) of this section.
    (3) Adequate notice. (i) The Commission shall provide a former 
Commission employee with adequate notice of an intention to institute a 
proceeding and an opportunity for a hearing.
    (ii) Notice to the former Commission employee must include:
    (A) A statement of allegations (and the basis thereof) sufficiently 
detailed to enable the former Commission employee to prepare an adequate 
defense;
    (B) Notification of the right to a hearing; and
    (C) An explanation of the method by which a hearing may be 
requested.
    (4) Presiding official. (i) The presiding official at a proceeding 
under this section shall be an individual to whom the Chairman has 
delegated authority to make an initial decision (hereinafter referred to 
as ``examiner'').
    (ii) The examiner must be a Commissioner (other than the Chairman), 
an administrative law judge, or an attorney employed by the Commission 
and shall be provided with appropriate administrative and secretarial 
support by the Commission.
    (iii) The presiding official shall be impartial. No individual who 
has participated in any manner in the decision to initiate a proceeding 
may serve as an examiner in that proceeding.
    (5) Time, date and place. (i) The hearing shall be conducted at a 
reasonable time, date and place.
    (ii) In setting a hearing date, the presiding official shall give 
due regard to the former Commission employee's need for:
    (A) Adequate time to prepare a defense properly, and
    (B) An expeditious resolution of allegations that may be damaging to 
his or her reputation.
    (6) Hearing rights. A hearing shall include, at a minimum, the 
following rights:
    (i) To represent oneself or to be represented by counsel;
    (ii) To introduce and examine witnesses and to submit physical 
evidence;
    (iii) To confront and cross-examine adverse witnesses;
    (iv) To receive a transcript or recording of the proceedings, on 
request.
    (7) Burden of proof. In any hearing under this subpart, the 
Commission has the burden of proof and must establish substantial 
evidence of a violation.
    (8) Initial decision. (i) The examiner shall make a determination on 
matters exclusively of record in a proceeding, and shall set forth in 
the decision all findings of fact and conclusions of law relevant to the 
matters at issue.
    (ii) Within a reasonable period of the date of an initial decision, 
as set by the Commission, either party may appeal the decision solely on 
the record to the Chairman. The Chairman shall base his or her decision 
solely on the record of the proceedings or those portions thereof cited 
by the parties to limit the issues.
    (iii) If the Chairman modifies or reverses the initial decision, he 
or she shall specify such findings of facts and conclusions of law as 
are different from those of the examiner.
    (9) Administrative sanctions. The Chairman may take appropriate 
action in the case of any individual who was found in violation of 18 
U.S.C. 207 (a),

[[Page 32]]

(b), or (c) or the provisions of paragraph (a) of this section after a 
final administrative decision or who failed to request a hearing after 
receiving adequate notice by:
    (i) Prohibiting the individual from making, on behalf of any other 
person except the United States, any formal or informal appearance 
before, or, with the intent to influence, any oral or written 
communication to, the Commission on any matter of business for a period 
not to exceed five (5) years, which may be accomplished by directing 
Commission employees to refuse to participate in any such appearance or 
to accept any such communication; or
    (ii) Taking other appropriate disciplinary action.
    (10) Judicial review. Any person found to have participated in a 
violation of 18 U.S.C. 207 (a), (b), or (c) or the provisions of 
paragraph (a) of this section may seek judicial review of the 
administrative determination.
    (11) Consultation and review. The procedures for administrative 
enforcement set forth in paragraphs (a), (b), and (c) of this section 
have been reviewed by the Director of the Office of Government Ethics.
    (d) Partners or associates. (1) In any case in which a former 
member, officer, or employee of the Commission is prohibited under this 
section from practicing, appearing, or representing anyone before the 
Commission in a particular Commission matter, any partner or legal or 
business associate of such former member, officer, or employee shall be 
prohibited from (i) utilizing the services of the disqualified former 
member, officer, or employee in connection with the matter, (ii) 
discussing the matter in any manner with the disqualified former member, 
officer, or employee, and (iii) sharing directly or indirectly with the 
disqualified former member, officer, or employee in any fees or revenues 
received for services rendered in connection with such matter.
    (2) The Commission may require any practitioner or applicant to 
become a practitioner to file an affidavit to the effect that the 
practitioner or applicant will not: (i) Utilize the service of, (ii) 
discuss the particular matter with, or (iii) share directly or 
indirectly any fees or revenues received for services provided in the 
particular matter, with a partner, fellow employee, or legal or business 
associate who is a former member, officer or employee of the Commission 
and who is either permanently or temporarily precluded from practicing, 
appearing or representing anyone before the Commission in connection 
with the particular matter; and that the applicant's employment is not 
prohibited by any law of the United States or by the regulations of the 
Commission. [Rule 32.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]

        Exhibit No. 1 to Subpart B [Secs. 502.23, 502.26, 502.27]

                          Notice of Appearance

                       Federal Maritime Commission

                          Notice of Appearance

    Docket No. ------:

_______________________________________________________________________
    Please enter my appearance in this proceeding as counsel for:
    {time}  I request to be informed by telephone or telegram of service 
of the administrative law judge's initial or recommended decision and of 
the Commission's decision in this proceeding. In the event I am not 
available when you call, appropriate advice left with my office will 
suffice.

Washington area: I understand I will be informed by telephone.
Outside Washington area: I authorize
    {time}  collect telephone call
    {time}  collect telegram

    {time}  I do not desire the above notice.

_______________________________________________________________________

                                 [Name]

_______________________________________________________________________

                                [Address]

_______________________________________________________________________

                             [Telephone No.]

    Note: Must be signed by attorney at law admitted to practice before 
the Federal Courts or before the courts of any State or Territory of the 
United States or by a person not an attorney at law who has been 
admitted to practice before the Commission or by a person appearing on 
his or her own behalf or on behalf of any corporation, partnership, or 
association of which he or she is a partner, officer, or regular 
employee.

[[Page 33]]



                           Subpart C--Parties



Sec. 502.41  Parties; how designated.

    The term ``party'', whenever used in the rules in this part, shall 
include any natural person, corporation, association, firm, partnership, 
trustee, receiver, agency, public or private organization, or 
governmental agency. A party who seeks relief or other affirmative 
action under Sec. 502.62 shall be designated as ``complainant''. A party 
against whom relief or other affirmative action is sought in any 
proceeding commenced under Sec. 502.62 or Sec. 502.66, or a party named 
in an order of investigation issued by the Commission, shall be 
designated as ``respondent,'' except that in investigations instituted 
under section 11(c) of the Shipping Act of 1984, the parties to the 
agreement shall be designated as ``proponents'' and the parties 
protesting the agreement shall be designated as ``protestants.'' A 
person who has been permitted to intervene under Sec. 502.72 shall be 
designated as ``intervenor''. All persons or parties designated in this 
section shall become parties to the proceeding involved without further 
pleadings, and no person other than a party or its representative may 
introduce evidence or examine witnesses at hearings. [Rule 41.]

[49 FR 44369, Nov. 6, 1984, as amended at 61 FR 66617, Dec. 18, 1996]



Sec. 502.42  Bureau of Enforcement.

    The Director, Bureau of Enforcement, shall be a party to all 
proceedings governed by the rules in this part, except that in complaint 
proceedings under Sec. 502.62, the Director may become a party only upon 
leave to intervene granted pursuant to Sec. 502.72, and in rulemaking 
proceedings, the Director may become a party by designation, if the 
Commission determines that the circumstances of the proceeding warrant 
such participation. The Director or the Director's representative shall 
be served with copies of all papers, pleadings, and documents in every 
proceeding in which the Bureau of Enforcement is a party. The Bureau of 
Enforcement shall actively participate in any proceeding to which the 
Director is a party, to the extent required in the public interest, 
subject to the separation of functions required by section 5(c) of the 
Administrative Procedure Act. (See Sec. 502.224.) [Rule 42.]

[61 FR 51233, Oct. 1, 1996]



Sec. 502.43  Substitution of parties.

    In appropriate circumstances, the Commission or presiding officer 
may order an appropriate substitution of parties. [Rule 43.]



Sec. 502.44  Necessary and proper parties in certain complaint proceedings.

    (a) If a complaint relates to through transportation by continuous 
carriage or transshipment, all carriers participating in such through 
transportation shall be joined as respondents.
    (b) If the complaint relates to more than one carrier or other 
person subject to the shipping acts, all carriers or other persons 
against whom a rule or order is sought shall be made respondents.
    (c) If complaint is made with respect to an agreement filed under 
section 15 of the Shipping Act, 1916 or section 5(a) of the Shipping Act 
of 1984, the parties to the agreement shall be made respondents. [Rule 
44.]



                          Subpart D--Rulemaking



Sec. 502.51  Petition for issuance, amendment, or repeal of rule.

    Any interested party may file with the Commission a petition for the 
issuance, amendment, or repeal of a rule designed to implement, 
interpret, or prescribe law, policy, organization, procedure, or 
practice requirements of the Commission. The petition shall set forth 
the interest of petitioner and the nature of the relief desired, shall 
include any facts, views, arguments, and data deemed relevant by 
petitioner, and shall be verified. If such petition is for the amendment 
or repeal of a rule, it shall be accompanied by proof of service on all 
persons, if any, specifically named in such rule, and shall conform in 
other aspects to subpart H of this part. Petitions shall be accompanied 
by remittance of a $177 filing

[[Page 34]]

fee. Replies to such petition shall conform to the requirements of 
Sec. 502.74. [Rule 51.]

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28399, July 11, 1990; 63 
FR 50535, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, the fourth 
sentence of Sec. 502.51 was revised, effective Nov. 2, 1998. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 502.51  Petition for issuance, amendment, or repeal of rule.

    * * * Petitions shall be accompanied by remittance of a $50 filing 
fee.* * *

                                * * * * *



Sec. 502.52  Notice of proposed rulemaking.

    (a) General notice of proposed rulemaking, including the information 
specified in Sec. 502.143, shall be published in the Federal Register, 
unless all persons subject thereto are named and, either are personally 
served, or otherwise have actual notice thereof in accordance with law.
    (b) Except where notice of hearing is required by statute, this 
section shall not apply to interpretative rules, general statements of 
policy, organization rules, procedure, or practice of the Commission, or 
any situation in which the Commission for good cause finds (and 
incorporates such findings in such rule) that notice and public 
procedure are impracticable, unnecessary, or contrary to the public 
interest. [Rule 52.]



Sec. 502.53  Participation in rulemaking.

    (a) Interested persons will be afforded an opportunity to 
participate in rulemaking through submission of written data, views, or 
arguments, with or without opportunity to present the same orally in any 
manner. No replies to the written submissions will be allowed unless, 
because of the nature of the proceeding, the Commission indicates that 
replies would be necessary or desirable for the formulation of a just 
and reasonable rule, except that, where the proposed rules are such as 
are required by statute to be made on the record after opportunity for a 
hearing, such hearing shall be conducted pursuant to 5 U.S.C. 556 and 
557, and the procedure shall be the same as stated in subpart J of this 
part. In the event that replies or succeeding rounds of comments are 
permitted, copies shall be served on all prior participants in the 
proceeding. A list of participants may be obtained from the Secretary of 
the Commission.
    (b) In those proceedings in which respondents are named, interested 
persons who wish to participate shall file a petition to intervene in 
accordance with the provisions of Sec. 502.72 [Rule 53.]

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28399, July 11, 1990]



Sec. 502.54  Contents of rules.

    The Commission will incorporate in any rules adopted a concise 
general statement of their basis and purpose. [Rule 54.]



Sec. 502.55  Effective date of rules.

    The publication or service of any substantive rule shall be made not 
less than thirty (30) days prior to its effective date except (a) as 
otherwise provided by the Commission for good cause found and published 
in the Federal Register or (b) in the case of rules granting or 
recognizing exemption or relieving restriction; interpretative rules; or 
statements of policy. [Rule 55.]



Sec. 502.56  Negotiated rulemaking.

    The Commission, either upon petition of interested persons or upon 
its own motion, may establish a negotiated rulemaking committee to 
negotiate and develop consensus on a proposed rule, if, upon 
consideration of the criteria of 5 U.S.C. 563, use of such a committee 
is determined by the Commission to be in the public interest.

[58 FR 38649, July 19, 1993]



           Subpart E--Proceedings; Pleadings; Motions; Replies



Sec. 502.61  Proceedings.

    (a) Proceedings are commenced by the filing of a complaint, or by 
order of the Commission upon petition or upon its own motion, or by 
reference by the Commission to the formal docket of a petition for a 
declaratory order.

[[Page 35]]

    (b) In proceedings referred to the Office of Administrative Law 
Judges, the Commission shall specify a date on or before which hearing 
shall commence, which date shall be no more than six months from the 
date of publication in the Federal Register of the Commission's order 
instituting the proceedings or notice of complaint filed. Hearing dates 
may be deferred by the presiding judge only to prevent substantial 
delay, expense, detriment to the public interest or undue prejudice to a 
party.
    (c) In the order instituting a proceeding or in the notice of filing 
of complaint and assignment, the Commission shall establish dates by 
which the initial decision and the final Commission decision will be 
issued. These dates may be extended by order of the Commission for good 
cause shown. [Rule 61.]
    (d) All orders instituting a proceeding or noticing the filing of a 
complaint will contain language requiring that prior to the commencement 
of oral hearings consideration shall be given by the parties and 
presiding officer to the use of alternative forms of dispute resolution, 
and further requiring that hearings shall include oral testimony and 
cross-examination in the discretion of the presiding officer only upon 
proper showing that there are genuine issues of material fact that 
cannot be resolved on the basis of sworn statements, affidavits, 
depositions, or other documents, or that the nature of the matter in 
issue is such that an oral hearing and cross-examination are necessary 
for the development of an adequate record.

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993]



Sec. 502.62  Complaints and fee.

    (a) The complaint must be verified and shall contain the name and 
address of each complainant, the name and address of each complainant's 
attorney or agent, the name and address of each person against whom 
complaint is made, a concise statement of the cause of action, and a 
request for the relief or other affirmative action sought.
    (b) Where reparation is sought and the nature of the proceeding so 
requires, the complaint shall set forth: the ports of origin and 
destination of the shipments; consignees, or real parties in interest, 
where shipments are on ``order'' bill of lading; consignors; date of 
receipt by carrier or tender of delivery to carrier; names of vessels; 
bill of lading number (and other identifying reference); description of 
commodities; weights; measurement; rates; charges made or collected; 
when, where, by whom and to whom rates and charges were paid; by whom 
the rates and charges were borne; the amount of damage; and the relief 
sought. Except under unusual circumstances and for good cause shown, 
reparation will not be awarded upon a complaint in which it is not 
specifically asked for, nor upon a new complaint by or for the same 
complainant which is based upon a finding in the original proceeding. 
Wherever a rate, fare, charge, rule, regulation, classification, or 
practice is involved, appropriate reference to the tariff should be 
made, if possible.
    (c) If the complaint fails to indicate the sections of the acts 
alleged to have been violated or clearly to state facts which support 
the allegations, the Commission may, on its own initiative, require the 
complaint to be amended to supply such further particulars as it deems 
necessary.
    (d) The complaint should designate the place at which hearing is 
desired.
    (e) A form of complaint is set forth in Exhibit No. 1 to this 
subpart.
    (f) The complaint shall be accompanied by remittance of a $184 
filing fee.
    (g) For special types of cases, see Sec. 502.92 in subpart F 
(Special Docket applications for refund or waiver); subpart K (Shortened 
Procedure); and subpart S (Small Claims). [Rule 62.]

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28399, July 11, 1990; 59 
FR 59170, Nov. 16, 1994; 63 FR 50535, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, Sec. 502.62(f) 
was revised, effective Nov. 2, 1998. For the convenience of the user, 
the superseded text is set forth as follows:

Sec. 502.62  Complaints and fee.

                                * * * * *

    (f) The complaint shall be accompanied by remittance of a $166 
filing fee.

                                * * * * *

[[Page 36]]



Sec. 502.63  Reparation; statute of limitations.

    (a) Complaints seeking reparation pursuant to section 22 of the 
Shipping Act, 1916 shall be filed within two (2) years after the cause 
of action accrues.
    (b) Complaints seeking reparation pursuant to section 11 of the 
Shipping Act of 1984 shall be filed within three years after the cause 
of action accrues.
    (c) The Commission will consider as in substantial compliance with a 
statute of limitations a complaint in which complainant alleges that the 
matters complained of, if continued in the future, will constitute 
violations of the shipping acts in the particulars and to the extent 
indicated and in which complainant prays for reparation accordingly for 
injuries which may be sustained as a result of such violations. (See 
Secs. 502.251-502.253 and Exhibit No. 1 to subpart O.)
    (d) Notification to the Commission that a complaint may or will be 
filed for the recovery of reparation will not constitute a filing within 
the applicable statutory period.
    (e) A complaint is deemed filed on the date it is received by the 
Commission. [Rule 63.]



Sec. 502.64  Answer to complaint; counter-complaint.

    (a) Respondent shall file with the Commission an answer to the 
complaint and shall serve it on complainant as provided in subpart H of 
this part within twenty (20) days after the date of service of the 
complaint by the Commission or within thirty (30) days if such 
respondent resides in Alaska or beyond the Continental United States, 
unless such periods have been extended under Sec. 502.71 or 
Sec. 502.102, or reduced under Sec. 502.103, or unless motion is filed 
to withdraw or dismiss the complaint, in which latter case, answer shall 
be made within ten (10) days after service of an order denying such 
motion. Such answer shall give notice of issues controverted in fact or 
law. Recitals of material and relevant facts in a complaint, amended 
complaint, or bill of particulars, unless specifically denied in the 
answer thereto, shall be deemed admitted as true, but if request is 
seasonably made, a competent witness shall be made available for cross-
examination on such evidence.
    (b) In the event that respondent should fail to file and serve the 
answer within the time provided, the presiding officer may enter such 
rule or order as may be just, or may in any case require such proof as 
he or she may deem proper, except that the presiding officer may permit 
the filing of a delayed answer after the time for filing the answer has 
expired, for good cause shown.
    (c) A form of answer to complaint is set forth in Exhibit No. 2 to 
this subpart. [Rule 64.]
    (d) In addition to filing an answer to a complaint, respondent may 
file a counter-complaint alleging violations of the Shipping Acts within 
the jurisdiction of the Commission. The filing of counter-complaints and 
answers to counter-complaints is governed by the rules and requirements 
of Sec. 502.62 (excluding fees) and of this section for the filing of 
complaints and answers. Counter-complaints may be served directly by the 
parties if authorized by the presiding officer.

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27210, May 7, 1993]



Sec. 502.65  Replies to answers not permitted.

    Replies to answers will not be permitted. New matters set forth in 
respondent's answer will be deemed to be controverted. [Rule 65.]



Sec. 502.66  Order to show cause.

    The Commission may institute a proceeding by order to show cause. 
The order shall be served upon all persons named therein, shall include 
the information specified in Sec. 502.143, may require the person named 
therein to answer, and shall require such person to appear at a 
specified time and place and present evidence upon the matters 
specified. [Rule 66.]



Sec. 502.67  [Reserved]



Sec. 502.68  Declaratory orders and fee.

    (a)(1) The Commission may, in its discretion, issue a declaratory 
order to terminate a controversy or to remove uncertainty.
    (2) Petitions for the issuance thereof shall: state clearly and 
concisely the

[[Page 37]]

controversy or uncertainty; name the persons and cite the statutory 
authority involved; include a complete statement of the facts and 
grounds prompting the petition, together with full disclosure of 
petitioner's interest; be served upon all parties named therein; and 
conform to the requirements of subpart H of this part.
    (3) Petitions shall be accompanied by remittance of a $177 filing 
fee.
    (b) Petitions under this section shall be limited to matters 
involving conduct or activity regulated by the Commission under statutes 
administered by the Commission. The procedures of this section shall be 
invoked solely for the purpose of obtaining declaratory rulings which 
will allow persons to act without peril upon their own view. 
Controversies involving an allegation of violation by another person of 
statutes administered by the Commission, for which coercive rulings such 
as payment of reparation or cease and desist orders are sought, are not 
proper subjects of petitions under this section. Such matters must be 
adjudicated either by filing of a complaint under section 22 of the 
Shipping Act, 1916 or section 11 of the Shipping Act of 1984 and 
Sec. 502.62, or by filing of a petition for investigation under 
Sec. 502.69.
    (c) Petitions under this section shall be accompanied by the 
complete factual and legal presentation of petitioner as to the desired 
resolution of the controversy or uncertainty, or a detailed explanation 
why such can only be developed through discovery or evidentiary hearing.
    (d) Replies to the petition shall contain the complete factual and 
legal presentation of the replying party as to the desired resolution, 
or a detailed explanation why such can only be developed through 
discovery or evidentiary hearing. Replies shall conform to the 
requirements of Sec. 502.74 and shall be served pursuant to subpart H of 
this part.
    (e) No additional submissions will be permitted unless ordered or 
requested by the Commission or the presiding officer. If discovery or 
evidentiary hearing on the petition is deemed necessary by the parties, 
such must be requested in the petition or replies. Requests shall state 
in detail the facts to be developed, their relevance to the issues, and 
why discovery or hearing procedures are necessary to develop such facts.
    (f)(1) A notice of filing of any petition which meets the 
requirements of this section shall be published in the Federal Register. 
The notice will indicate the time for filing of replies to the petition. 
If the controversy or uncertainty is one of general public interest, and 
not limited to specifically named persons, opportunity for reply will be 
given to all interested persons including the Commission's Bureau of 
Enforcement.
    (2) In the case of petitions involving a matter limited to 
specifically named persons, participation by persons not named therein 
will be permitted only upon grant of intervention by the Commission 
pursuant to Sec. 502.72.
    (3) Petitions for leave to intervene shall be submitted on or before 
the reply date and shall be accompanied by intervenor's complete reply 
including its factual and legal presentation in the matter.
    (g) Petitions for declaratory order which conform to the 
requirements of this section will be referred to a formal docket. 
Referral to a formal docket is not to be construed as the exercise by 
the Commission of its discretion to issue an order on the merits of the 
petition. [Rule 68.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 59 
FR 59170, Nov. 16, 1994; 61 FR 51233, Oct. 1, 1996; 63 FR 50535, Sept. 
22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, 
Sec. 502.68(a)(3) was revised, effective Nov. 2, 1998. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 502.68  Declaratory orders and fee.

    (a) * * *
    (3) Petitions shall be accompanied by remittance of a $162 filing 
fee.

                                * * * * *



Sec. 502.69  Petitions--general and fee.

    (a) Except when submitted in connection with a formal proceeding, 
all claims for relief or other affirmative action by the Commission, 
including appeals from Commission staff action,

[[Page 38]]

except as otherwise provided in this part, shall be by written petition, 
which shall state clearly and concisely the petitioner's grounds of 
interest in the subject matter, the facts relied upon and the relief 
sought, shall cite by appropriate reference the statutory provisions or 
other authority relied upon for relief, shall be served upon all parties 
named therein, and shall conform otherwise to the requirements of 
subpart H of this part. Replies thereto shall conform to the 
requirements of Sec. 502.74.
    (b) Petitions shall be accompanied by remittance of a $177 filing 
fee. [Rule 69.]

[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4143, Feb. 10, 1987; 59 
FR 59170, Nov. 16, 1994; 63 FR 50535, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, Sec. 502.69(b) 
was revised, effective Nov. 2, 1998. For the convenience of the user, 
the superseded text is set forth as follows:

Sec. 502.69  Petitions--general and fee.

                                * * * * *

    (b) Petitions shall be accompanied by remittance of a $162 filing 
fee. [Rule 69.]



Sec. 502.70  Amendments or supplements to pleadings.

    (a) Amendments or supplements to any pleadings will be permitted or 
rejected, either in the discretion of the Commission if the case has not 
been assigned to a presiding officer for hearing, or otherwise, in the 
discretion of the officer designated to conduct the hearing, except that 
after a case is assigned for hearing, no amendment shall be allowed 
which would broaden the issues, without opportunity to reply to such 
amended pleading and to prepare for the broadened issues. The presiding 
officer may direct a party to state its case more fully and in more 
detail by way of amendment.
    (b) A response to an amended pleading must be filed and served in 
conformity with the requirements of subpart H of this part and 
Sec. 502.74, unless the Commission or the presiding officer directs 
otherwise. Amendments or supplements allowed prior to hearing will be 
served in the same manner as the original pleading, except that the 
presiding officer may authorize the service of amended complaints 
directly by the parties rather than by the Secretary of the Commission.
    (c) Whenever by the rules in this part a pleading is required to be 
verified, the amendment or supplement shall also be verified. [Rule 70.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27210, May 7, 1993]



Sec. 502.71  Motions for more definite statement.

    If a pleading (including a complaint or counter-complaint filed 
pursuant to Sec. 502.62 or Sec. 502.64) to which a responsive pleading 
is permitted is so vague or ambiguous that a party cannot reasonably be 
required to frame a responsive pleading, the party may move for a more 
definite statement before interposing a responsive pleading. The motion 
shall be filed within 15 days of the pleading and shall point out the 
defects complained of and the details desired. If the motion is granted 
and the order of the presiding officer is not obeyed within 10 days 
after service of the order or within such time as the presiding officer 
may fix, the presiding officer may strike the pleading to which the 
motion was directed or make such order as is deemed just. If the motion 
is disallowed, the time for responding to the pleading shall be extended 
to a date 10 days after service of the notice of disallowance.

[58 FR 27210, May 7, 1993]



Sec. 502.72  Petition for leave to intervene.

    (a) A petition for leave to intervene may be filed in any proceeding 
and shall be served on existing parties by the petitioner pursuant to 
subpart H of this part. An additional fifteen (15) copies of the 
petition shall be filed with the Secretary for the use of the 
Commission. Upon request, the Commission will furnish a service list to 
any member of the public pursuant to part 503 of this chapter. The 
petition shall set forth the grounds for the proposed intervention and 
the interest and position of the petitioner in the proceeding and shall 
comply with the other applicable provisions of subpart H of this part, 
and if affirmative relief is sought, the basis for such relief. Such 
petition

[[Page 39]]

shall also indicate the nature and extent of the participation sought, 
e.g., the use of discovery, presentation of evidence and examination of 
witnesses.
    (b)(1) Petitions for leave to intervene as a matter of right will 
only be granted upon a clear and convincing showing that:
    (i) The petitioner has a substantial interest relating to the matter 
which is the subject of the proceeding warranting intervention; and
    (ii) The proceeding may, as a practical matter, materially affect 
the petitioner's interest; and
    (iii) The interest is not adequately represented by existing parties 
to the proceeding.
    (2) Petitions for intervention as a matter of Commission discretion 
may be granted only upon a showing that:
    (i) A common issue of law or fact exists between the petitioner's 
interests and the subject matter of the proceeding; and
    (ii) Petitioner's intervention will not unduly delay or broaden the 
scope of the proceeding, prejudice the adjudication of the rights of or 
be duplicative of positions of any existing party; and
    (iii) The petitioner's participation may reasonably be expected to 
assist in the development of a sound record.
    (3) The timeliness of the petition will also be considered in 
determining whether a petition will be granted under paragraphs (b)(1) 
or (b)(2) of this section. If filed after hearings have been closed, a 
petition will not ordinarily be granted.
    (c) In the interests of: (1) Restricting irrelevant, duplicative, or 
repetitive discovery, evidence or arguments; (2) having common interests 
represented by a spokesperson; and (3) retaining authority to determine 
priorities and control the course of the proceeding, the presiding 
officer, in his or her discretion, may impose reasonable limitations on 
an intervenor's participation, e.g., the filing of briefs, presentation 
of evidence on selected factual issues, or oral argument on some or all 
of the issues.
    (d) Absent good cause shown, any intervenor desiring to utilize the 
procedures provided by subpart L must commence doing so no later than 
fifteen (15) days after its petition for leave to intervene has been 
granted. If the petition is filed later than thirty (30) days after the 
date of publication in the Federal Register of the Commission's Order 
instituting the proceeding or notice of complaint filed, petitioner will 
be deemed to have waived its right to utilize such procedures, unless 
good cause is shown for the failure to file the petition within the 30-
day period. The use of subpart L procedures by an intervenor whose 
petition was filed beyond such 30-day period will in no event be 
allowed, if, in the opinion of the presiding officer, such use will 
result in delaying the proceeding unduly.
    (e) If intervention is granted before or at a prehearing conference 
convened for the purpose of considering matters relating to discovery, 
the intervenor's discovery matters may also be considered at that time, 
and may be limited under the provisions of paragraph (c) of this 
section.
    (f) A form of petition for leave to intervene is set forth in 
Exhibit No. 3 to this subpart. [Rule 72.]

[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4143, Feb. 10, 1987]



Sec. 502.73  Motions.

    (a) In any docketed proceeding, an application or request for an 
order or ruling not otherwise specifically provided for in this part 
shall be by motion. After the assignment of a presiding officer to a 
proceeding and before the issuance of his or her recommended or initial 
decision, all motions shall be addressed to and ruled upon by the 
presiding officer unless the subject matter of the motion is beyond his 
or her authority, in which event the matter shall be referred to the 
Commission. If the proceeding is not before the presiding officer, 
motions shall be designated as ``petitions'' and shall be addressed to 
and passed upon by the Commission.
    (b) Motions shall be in writing, except that a motion made at a 
hearing shall be sufficient if stated orally upon the record, unless the 
presiding officer directs that it be reduced to writing.
    (c) All written motions shall state clearly and concisely the 
purpose of and the relief sought by the motion, the statutory or 
principal authority relied upon, and the facts claimed to constitute the 
grounds requiring the relief

[[Page 40]]

requested; and shall conform with the requirements of subpart H of this 
part.
    (d) Oral argument upon a written motion may be permitted at the 
discretion of the presiding officer or the Commission, as the case may 
be.
    (e) A repetitious motion will not be entertained. [Rule 73.]



Sec. 502.74  Replies to pleadings, motions, applications, etc.

    (a)(1) Except as provided under subpart V of this part, a reply to a 
reply is not permitted.
    (2) Except as otherwise provided respecting answers (Sec. 502.64), 
shortened procedure (subpart K of this part), briefs (Sec. 502.221), 
exceptions (Sec. 502.227), replies to petitions for attorney fees under 
the Equal Access to Justice Act (Sec. 502.503(b)(1)), and the documents 
specified in paragraph (b) of this section, any party may file and serve 
a reply to any written motion, pleading, petition, application, etc., 
permitted under this part within fifteen (15) days after the date of 
service thereof, unless a shorter period is fixed under Sec. 502.103.
    (b) When time permits, replies also may be filed to applications for 
enlargement of time and postponement of hearing (subpart G of this 
part), and motions to take depositions (Sec. 502.201).
    (c) Replies shall be in writing, shall be verified if verification 
of original pleading is required, shall be so drawn as to fully and 
completely advise the parties and the Commission as to the nature of the 
defense, shall admit or deny specifically and in detail each material 
allegation of the pleading answered, shall state clearly and concisely 
the facts and matters of law relied upon, and shall conform to the 
requirements of subpart H of this part. [Rule 74.]

[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 28264, July 29, 1987; 61 
FR 66617, Dec. 18, 1996]



Sec. 502.75  Proceedings involving assessment agreements.

    (a) In complaint proceedings involving assessment agreements filed 
under the fifth paragraph of section 15 of the Shipping Act, 1916, or 
section 5(d) of the Shipping Act of 1984, the Notice of Filing of 
Complaint and Assignment will specify a date before which the initial 
decision will be issued, which date will be not more than eight months 
from the date the complaint was filed.
    (b) Any party to a proceeding conducted under this section who 
desires to utilize the prehearing discovery procedures provided by 
subpart L of this part shall commence doing so at the time it files its 
initial pleading, i.e., complaint, answer or petition for leave to 
intervene. Discovery matters accompanying complaints shall be filed with 
the Secretary of the Commission for service pursuant to Sec. 502.113. 
Answers or objections to discovery requests shall be subject to the 
normal provisions set forth in subpart L.
    (c) Exceptions to the decision of the presiding officer, filed 
pursuant to Sec. 502.227, shall be filed and served no later than 
fifteen (15) days after date of service of the initial decision. Replies 
thereto shall be filed and served no later than fifteen (15) days after 
date of service of exceptions. In the absence of exceptions, the 
decision of the presiding officer shall be final within thirty (30) days 
from the date of service, unless within that period, a determination to 
review is made in accordance with the procedures outlined in 
Sec. 502.227. [Rule 75.]



Sec. 502.76  Brief of an amicus curiae.

    (a) A brief of an amicus curiae may be filed only by leave of the 
Commission or the presiding officer granted on motion with notice to the 
parties, or at the request of the Commission or the presiding officer, 
except that leave shall not be required when the brief is presented by 
the United States or any agency or officer of the United States. The 
brief may be conditionally filed with the motion for leave. A brief of 
an amicus curiae shall be limited to questions of law or policy.
    (b) A motion for leave to file an amicus brief shall identify the 
interest of the applicant and shall state the reasons why such a brief 
is desirable.
    (c) Except as otherwise permitted by the Commission or the presiding 
officer, an amicus curiae shall file its brief within the time allowed 
the party whose position as to affirmance or reversal the amicus brief 
will support. The Commisson or the presiding officer shall grant leave 
for a later filing only

[[Page 41]]

for cause shown, in which event the period within which an opposing 
party may answer shall be specified.
    (d) A motion of an amicus curiae to participate in oral argument 
will be granted only in accordance with the requirements of 
Sec. 502.241. [Rule 76.]

[52 FR 4143, Feb. 10, 1987]

Exhibit No. 1 to Subpart E [Sec. 502.62]--Complaint Form and Information 
                                Checklist

                 Before the Federal Maritime Commission

                                Complaint

------------ v. ------------ [Insert without abbreviation exact and 
          complete name of party or parties respondent]

    I. The complainant is [State in this paragraph whether complainant 
is an association, a corporation, firm, or partnership and the names of 
the individuals composing the same. State also the nature and principal 
place of business].
    II. The respondent is [State in this paragraph whether respondent is 
an association, a corporation, firm, or partnership and the names of the 
individuals composing the same. State also the nature and principal 
place of business].
    III. Allegation of jurisdiction. [State in this paragraph a synopsis 
of the statutory bases for claim(s)].
    IV. That [State in this or subsequent paragraphs to be lettered 
``A'', ``B'', etc., the matter or matters complained of. If rates are 
involved, name each rate, fare, charge, classification, regulation, or 
practice, the lawfulness of which is challenged].
    V. That by reason of the facts stated in the foregoing paragraphs, 
complainant has been (and is being) subject to injury as a direct result 
of the violations by respondent of sections ------ [State in this 
paragraph the causal connection between the alleged illegal acts of 
respondent and the claimed injury to complainant, with all necessary 
statutory sections relied upon].
    VI. That complainant has been injured in the following manner: To 
its damage in the sum of $------.
    VII. Wherefore complainant prays that respondent be required to 
answer the charges herein; that after due hearing, an order be made 
commanding said respondent (and each of them): to cease and desist from 
the aforesaid violations of said act(s); to establish and put in force 
such practices as the Commission determines to be lawful and reasonable; 
to pay to said complainant by way of reparations for the unlawful 
conduct hereinabove described the sum of $------, with interest and 
attorney's fees or such other sum as the Commission may determine to be 
proper as an award of reparation; and that such other and further order 
or orders be made as the Commission determines to be proper in the 
premises.

Dated at ------, this ---- day of ------, 19--.

_______________________________________________________________________

[Complainant's signature]

_______________________________________________________________________

[Office and post office address]

_______________________________________________________________________

[Signature or agent or attorney of complainant]

_______________________________________________________________________

[Post office address]

                     Verification [See Sec. 502.112]

State of ------, County of ------, ss: ------, ------ being first duly 
sworn on oath deposes and says that he (she) is

_______________________________________________________________________

[The complainant, or, if a firm, association, or corporation, state the 
capacity of the affiant]

and is the person who signed the foregoing complaint; that he (she) has 
read the complaint and that the facts stated therein, upon information 
received from others, affiant believes to be true.
    Subscribed and sworn to before me, a notary public in and for the 
State of ------, County of ------ this ------ day ------, A.D. 19--.

[Seal]_________________________________________________________________

(Notary Public)

My Commission expires --------.

            Information To Assist in Filing Formal Complaint

                                 General

    Formal Docket Complaint procedures usually involve an evidentiary 
hearing on disputed facts. Where no evidentiary hearing on disputed 
facts is necessary and where all parties agree to the use of different 
procedures, a complaint may be processed under subpart K [Shortened 
Procedure] or subpart S [Informal Docket for a claim of $10,000 or 
less]. An application for refund or waiver of collection of freight 
charges due to tariff error should be filed pursuant to Sec. 502.92 and 
Exhibit No. 1 to subpart F. Consider also the feasibilty of filing a 
Petition for Declaratory Order under Sec. 502.68.
    Under the Shipping Act of 1984 [foreign commerce], the complaint 
must be filed within three (3) years from the time the cause of action 
accrues and may be brought against any person alleged to have violated 
the 1984 Act to the injury of complainant.

[[Page 42]]

    Under the Shipping Act, 1916 and the Intercoastal Shipping Act, 1933 
[domestic commerce], the complaint must be filed within two (2) years 
from the time the cause of action accrues and may be brought only 
against a ``person subject to the Act'', e.g., a common carrier, 
terminal operator or freight forwarder.
    Because of the limitation periods, a complaint is deemed to be filed 
only when it is physically received at the Commission. [See 
Sec. 502.114]
    The format of exhibit No. 1 to subpart E must be followed and a 
verification must be included. (See Secs. 502.21-502.32, 502.62 and 
502.112.) The complaint must also fully describe the alleged violations 
of the specific section(s) of the shipping statute(s) involved and how 
complainant is or was directly injured as a result. An original and 
fifteen copies, plus a further number of copies sufficient for service 
upon each named respondent must be filed and the Commission will serve 
the other parties. [See Secs. 502.113 and 502.118]
    In addition to subpart E, some other important rules are: Sec. 502.2 
(mailing address; hours); Sec. 502.7 (documents in foreign language); 
Sec. 502.23 (Notice of Apperance); Sec. 502.41 (parties; how 
designated); Sec. 502.44 (necessary and proper parties to certain 
complaint proceedings); and subpart H (form, execution and service of 
documents).

                    Checklist of Specific Information

    The following checklist sets forth items of information which are 
pertinent in cases submitted to the Commission pursuant to the 
regulatory provisions of the shipping statutes. The list is not intended 
to be inclusive, nor does it indicate all of the essential allegations 
which may be material in specific cases.
    1. Identity of complainant; if an individual, complainant's 
residence; if a partnership, name of partners, business and principal 
place thereof; if a corporation, name, state of incorporation, and 
principal place of business. The same information with respect to 
respondents, intervenors, or others who become parties is necessary.
    2. Description of commodity involved, with port of origin, 
destination port, weight, consignor and consignee of shipment(s), date 
shipped from loading port, and date received at discharge port.
    3. Rate charged, with tariff authority for same, and any rule or 
regulation applicable thereto; the charges collected and from whom.
    4. Route of shipment, including any transshipment; bill of lading 
reference.
    5. Date of delivery or tender of delivery of each shipment.
    6. Where the rate is challenged and comparisons are made with rates 
on other commodities, the form, packing, density, susceptibility to 
damage, tendency to contaminate other freight, value, volume of 
movement, competitive situation, and all matters relating to the cost of 
loading, unloading, and otherwise handling of respective commodities.
    7. If comparisons are made between the challenged rates and rates on 
other routes, the allegation showing similarity of service should 
include at least respective distances, volumes of movement, cost of 
handling, and competitive conditions.
    8. History of rate with reasons for previous increases or decreases 
of same.
    9. When the complaint alleges undue prejudice or preference, the 
complaint should indicate what manner of undue prejudice or preference 
is involved, and whether to a particular person, locality, or 
description of traffic; how the preference or discrimination resulted 
and the manner in which the respondents are responsible for the same; 
and how complainant is damaged by the prejudice or preference, in loss 
of sales or otherwise.
    10. Care should be exercised to differentiate between the measure of 
damages required in cases where prejudice or preference is charged, 
where the illegality of rates is charged and other situations.
    11. Where a filed agreement or conduct under the agreement is 
challenged, all necessary provisions of the shipping statute involved 
must be specifically cited, showing in detail how a section was violated 
and how the conduct or agreement injures complainant. The complaint 
should be thorough and clear as to all relief complainant is requesting.

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 55 
FR 28400, July 11, 1990]

      Exhibit No. 2 to Subpart E [Sec. 502.64]--Answer to Complaint

                 Before the Federal Maritime Commission

                                 Answer

------------ v. ------------
[Complainant]        [Respondent]
Docket No. --------

    The above-named respondent, for answer to the complaint in this 
proceeding, states:
    I. [State in this and subsequent paragraphs to be numbered II, III, 
etc., appropriate and responsive admissions, denials, and averments, 
specifically answering the complaint, paragraph by paragraph.]
    Wherefore respondent prays that the complaint in this proceeding be 
dismissed.

_______________________________________________________________________

[Name of respondent]

By_____________________________________________________________________

[Title of Officer]


[[Page 43]]


_______________________________________________________________________

[Office and post office address]

_______________________________________________________________________

[Signature of attorney or agent]

_______________________________________________________________________

[Post office address]

    Date ------------, 19-.

                              Verification

[See form for verification of complaint in Exhibit No. 1 to this subpart 
and Sec. 502.112.]

                         Certificate of Service

[See Sec. 502.114.]

    Exhibit No. 3 to Subpart E [Sec. 502.72]--Petition for Leave to 
                                Intervene

                 Before the Federal Maritime Commission

                     Petition for Leave To Intervene

------ v. ------ Docket No. ------.

    Your petitioner, ------------, respectfully represents that he (she) 
has an interest in the matters in controversy in the above-entitled 
proceeding and desires to intervene in and become a party to said 
proceeding, and for grounds of the proposed intervention says:
    I. That petitioner is [State whether an association, corporation, 
firm, or partnership, etc., as in Exhibit No. 1 to this subpart, and 
nature and principal place of business].
    II. [Here set out specifically position and interest of petitioner 
in the above-entitled proceeding and other essential averments in 
accordance with Rule 72 (46 CFR 502.72).]
    Wherefore said ------------ requests leave to intervene and be 
treated as a party hereto with the right to have notice of and appear at 
the taking of testimony, produce and cross-examine witnesses, and be 
heard in person or by counsel upon brief and at the oral argument, if 
oral argument is granted.
    [If affirmative relief is sought, insert appropriate request here.]

Dated at ------, this ---- day of ------, 19--.

_______________________________________________________________________

Petitioner's signature]

_______________________________________________________________________

[Office and post office address]

_______________________________________________________________________

[Signature of agent or attorney of petitioner]

_______________________________________________________________________

[Post office address]

                 Verification and Certificate of Service

[See Exhibits Nos. 1 and 2 to this subpart.]



               Subpart F--Settlement; Prehearing Procedure



Sec. 502.91  Opportunity for informal settlement.

    (a) Parties are encouraged to make use of all the procedures of this 
part which are designed to simplify or avoid formal litigation, and to 
assist the parties in reaching settlements whenever it appears that a 
particular procedure would be helpful.
    (b) Where time, the nature of the proceeding, and the public 
interest permit, all interested parties shall have the opportunity for 
the submission and consideration of facts, argument, offers of 
settlement, or proposal of adjustment, without prejudice to the rights 
of the parties.
    (c) No stipulation, offer, or proposal shall be admissible in 
evidence over the objection of any party in any hearing on the matter. 
[Rule 91.]
    (d) Any party may request, or the presiding officer may suggest, 
that a mediator or settlement judge be appointed to assist the parties 
in reaching a settlement. If such a request or suggestion is made and is 
not opposed, the presiding judge will advise the Chief Administrative 
Law Judge who may appoint a mediator or settlement judge who is 
acceptable to all parties. The mediator or settlement judge shall 
convene and preside over conferences and settlement negotiations and 
shall report to the Chief Administrative Law Judge, within the time 
prescribed by the Chief Administrative Law Judge, on the results of 
settlement discussions with appropriate recommendations as to future 
proceedings. If settlement is reached, it shall be submitted to the 
presiding judge who shall issue an appropriate decision or ruling.

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993]



Sec. 502.92  Special docket applications and fee.

    (a)(1) A common carrier or a shipper may file an application for 
permission to refund or waive collection of a portion of freight charges 
where it appears

[[Page 44]]

that there is (i) an error in the tariff of a clerical or administrative 
nature or (ii) an error due to inadvertence in failing to file a new 
tariff. Such refund or waiver must not result in discrimination among 
shippers, ports, or carriers.
    (2) When the application is filed by a carrier, the Commission must 
have received prior to the filing of the application a new tariff which 
sets forth the rate on which refund or waiver would be based.
    (3)(i) The application for refund or waiver must be filed with the 
Commission within one hundred eighty (180) days from the date of 
shipment and served upon other persons involved pursuant to subpart H of 
this part. When a rate published in a conference tariff is involved, the 
carrier or shipper must serve a copy of the application on the 
conference and so certify in accordance with Rule 117 (46 CFR 502.117) 
to that service in the application. A shipper must also make a similar 
service and certification with respect to the common carrier. An 
application is filed when it is placed in the mail, delivered to a 
courier, or, if delivered by another method, when it is received by the 
Commission. Filings by mail or courier must include a certification as 
to date of mailing or delivery to the courier.
    (ii) The application for refund or waiver must be accompanied by 
remittance of an $86 filing fee.
    (iii) Date of shipment shall mean the date of sailing of the vessel 
from the port at which the cargo was loaded.
    (4) By filing, the applicant(s) agrees that:
    (i) If permission is granted by the Commission:
    (A) An appropriate notice will be published in the tariff; or
    (B) Other steps will be taken as the Commission may require which 
give notice of the rate on which such refund or waiver would be based; 
and
    (C) Additional refunds or waivers shall be made with respect to 
other shipments in the manner prescribed by the Commission's order 
approving the application.
    (ii) If the application is denied, other steps will be taken as the 
Commission may require.
    (5) Application for refund or waiver shall be made in accordance 
with Exhibit No. 1 to this subpart. Any application which does not 
furnish the information required by the prescribed form or otherwise 
comply with this rule may be returned to the applicant by the Secretary 
without prejudice to resubmission within the 180-day limitation period.
    (b) Common carriers by water in interstate or intercoastal commerce, 
or conferences of such carriers, may file application for permission to 
refund a portion of freight charges collected from a shipper or waive 
collection of a portion of freight charges from a shipper. All such 
applications shall be filed within the 2-year statutory period referred 
to in Sec. 502.63, and shall be made in accordance with Exhibit No. 1 to 
this subpart. Such applications will be considered the equivalent of a 
complaint and answer thereto admitting the facts complained of. If 
allowed, an order for payment or waiver will be issued by the 
Commission.
    (c) Applications under paragraphs (a) and (b) of this section shall 
be submitted in an original and one (1) copy to the Office of the 
Secretary, Federal Maritime Commission, Washington, DC 20573-0001. Each 
application shall be acknowledged with a reference to the assigned 
docket number and referred for decision, either to a Special Dockets 
Officer or to the Office of Administrative Law Judges, at the discretion 
of the Secretary. The deciding official may, in his or her discretion, 
require the submission of additional information. Formal proceedings as 
described in other rules of this part need not be conducted. The 
deciding official shall issue an initial determination to which the 
provisions of Sec. 502.227 shall be applicable. If the application is 
granted, the initial determination or, as may otherwise be applicable, 
the final decision of the Commission shall describe the content of the 
appropriate notice if required to be published, and shall designate the 
tariff in which it is to appear, or other steps that are required to be 
taken which give notice of the rate on which such refund or waiver is to 
be based. [Rule 92].

[49 FR 44369, Nov. 6, 1984, as amended at 53 FR 27861, July 25, 1988; 57 
FR 3026, Jan. 27, 1992; 59 FR 59170, Nov. 16, 1994]

[[Page 45]]



Sec. 502.94  Prehearing conference.

    (a)(1) Prior to any hearing, the Commission or presiding officer may 
direct all interested parties, by written notice, to attend one or more 
prehearing conferences for the purpose of considering any settlement 
under Sec. 502.91, formulating the issues in the proceeding and 
determining other matters to aid in its disposition. In addition to any 
offers of settlement or proposals of adjustment, there may be considered 
the following:
    (i) Simplification of the issues;
    (ii) The necessity or desirability of amendments to the pleadings;
    (iii) The possibility of obtaining admissions of fact and of 
documents which will avoid unnecessary proof;
    (iv) Limitation on the number of witnesses;
    (v) The procedure at the hearing;
    (vi) The distribution to the parties prior to the hearing of written 
testimony and exhibits;
    (vii) Consolidation of the examination of witnesses by counsel;
    (viii) Such other matters as may aid in the disposition of the 
proceeding.
    (2) The presiding officer may require, prior to the hearing, 
exchange of exhibits and any other material which may expedite the 
hearing. He or she shall assume the responsibility of accomplishing the 
purposes of the notice of prehearing conference so far as this may be 
possible without prejudice to the rights of any party.
    (3) The presiding officer shall rule upon all matters presented for 
decision, orally upon the record when feasible, or by subsequent ruling 
in writing. If a party determines that a ruling made orally does not 
cover fully the issue presented, or is unclear, such party may petition 
for a further ruling thereon within ten (10) days after receipt of the 
transcript.
    (b) In any proceeding under the rules in this part, the presiding 
officer may call the parties together for an informal conference prior 
to the taking of testimony, or may recess the hearing for such a 
conference, with a view to carrying out the purposes of this section. 
[Rule 94.]
    (c) At any prehearing conference, consideration shall be given to 
whether the use of alternative means of dispute resolution would be 
appropriate or useful for the disposition of the proceeding.

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993]



Sec. 502.95  Prehearing statements.

    (a) Unless waiver is granted by the presiding officer, it shall be 
the duty of all parties to a proceeding to prepare a statement or 
statements at a time and in the manner to be established by the 
presiding officer provided that there has been reasonable opportunity 
for discovery. To the extent possible, joint statements should be 
prepared.
    (b) A prehearing statement shall state the name of the party or 
parties on whose behalf it is presented and briefly set forth the 
following matters, unless otherwise ordered by the presiding officer:
    (1) Issues involved in the proceeding.
    (2) Facts stipulated pursuant to the procedures together with a 
statement that the party or parties have communicated or conferred in a 
good faith effort to reach stipulation to the fullest extent possible.
    (3) Facts in dispute.
    (4) Witnesses and exhibits by which disputed facts will be 
litigated.
    (5) A brief statement of applicable law.
    (6) The conclusion to be drawn.
    (7) Suggested time and location of hearing and estimated time 
required for presentation of the party's or parties' case.
    (8) Any appropriate comments, suggestions or information which might 
assist the parties in preparing for the hearing or otherwise aid in the 
disposition of the proceeding.
    (c) The presiding officer may, for good cause shown, permit a party 
to introduce facts or argue points of law outside the scope of the facts 
and law outlined in the prehearing statement. Failure to file a 
prehearing statement, unless waiver has been granted by the presiding 
officer, may result in dismissal of a party from the proceeding, 
dismissal of a complaint, judgment against respondents, or imposition of 
such other sanctions as may be appropriate under the circumstances.

[[Page 46]]

    (d) Following the submission of prehearing statements, the presiding 
officer may, upon motion or otherwise, convene a prehearing conference 
for the purpose of further narrowing issues and limiting the scope of 
the hearing if, in his or her opinion, the prehearing statements 
indicate lack of dispute of material fact not previously acknowledged by 
the parties or lack of legitimate need for cross-examination and is 
authorized to issue appropriate orders consistent with the purposes 
stated in this section. [Rule 95.]

                       Exhibit No. 1 to Subpart F

                              [Sec. 502.92]

 Application for Refund of or Waiver for Freight Charges Due to Tariff 
                                  Error

Federal Maritime Commission Special Docket No. ------

Amount of Freight Charges involved in request ------

    Application of [Name of carrier, or (if under the 1984 Act) shipper] 
for the benefit of [Name of person who paid or is responsible for 
payment of freight charges].
    1. Shipment(s). Here fully describe:
    (a) Commodity [according to tariff description].
    (b) Number of shipments.
    (c) Weight or measurement of individual shipment, as well as, all 
shipments.
    (d) Date(s) of shipment(s), i.e., sailing(s) [furnish supporting 
evidence].
    (e) Shipper and place of origin.
    (f) Consignee, place of destination and routing of shipment(s).
    (g) Name of carrier and date shown on bill of lading [furnish 
legible copies of bill(s) of lading].
    (h) Names of participating ocean carrier(s).
    (i) Name(s) of vessel(s) involved in carriage.
    (j) Amount of freight charges actually collected [furnish legible 
copies of rated bill(s) of lading or freight bill(s), as appropriate] 
broken down (i) per shipment, (ii) in the aggregate, (iii) by whom paid, 
(iv) who is responsible for payment if different, and (v) date(s) of 
collection.
    (k) Rate applicable at time of shipment [furnish legible copies of 
tariff page(s)].
    (l) Rate sought to be applied [furnish legible copies of tariff 
page(s)].
    (m) Amount of freight charges at rate sought to be applied, per 
shipment and in the aggregate.
    (n) Amount of freight charges sought to be (refunded) (waived), per 
shipment and in the aggregate.
    2. Furnish docket numbers of other special docket applications or 
decided or pending formal proceedings involving the same rate 
situations.
    3. Furnish any information or evidence as to whether grant of the 
application will result in discrimination among shippers, ports or 
carriers.
    4. State whether there are shipments of other shippers of the same 
commodity which (i) moved via the carrier(s) or conference involved in 
this application during the period of time beginning on the date the 
tariff omitting the intended rate become effective or on the date the 
intended rate absent the mistake would have became effective and ending 
on the day before the effective date of the conforming tariff, and (ii) 
moved on the same voyage(s) of the vessel(s) carrying the shipment(s) 
described in No. 1, above.
    5. Fully explain the basis for the application, i.e., the clerical 
or administrative error or error due to inadvertence, or reasons why 
freight charges collected are thought to be unlawful (domestic commerce) 
showing why the application should be granted. Furnish affidavits, if 
appropriate, and legible copies of all supporting documents. If the 
error is due to inadvertence, specify the date when the carrier and/or 
conference intended or agreed to file a new tariff.

[Here set forth Name of Applicant, Signature of Authorized Person, Typed 
or Printed Name of Person, Title of Person and Date]

State of ------------, County of ------------. ss:
    I, ------------, on oath declare that I am ------ of the above-named 
applicant, that I have read this application and know its contents, and 
that they are true.
    Subscribed and sworn to before me, a notary public in and for the 
State of ------, County of ------, this ---- day of ------, A.D. 19--.

(Seal)_________________________________________________________________

Notary Public

My Commission expires ------.

                         Affidavit of Carrier(s)

    [Here, as applicable, set forth same type of affidavit(s) and 
notarization(s) as set forth on page 2 of this exhibit for carrier, for 
any other water carrier participating in the transportation under a 
joint through rate.]

                         Certificate of Mailing

    I certify that the date shown below is the date of mailing [or date 
of delivery to courier] of the original and three (3) copies of this 
application to the Secretary, Federal Maritime Commission, Washington, 
D.C., 20573.

Dated at ------, this ---- day of ------, 19--.

[Signature] ----------------------------.


[[Page 47]]


For ------.

[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4144, Feb. 10, 1987; 53 
FR 27861, July 25, 1988]



                             Subpart G--Time



Sec. 502.101  Computation.

    In computing any period of time under the rules in this part, the 
time begins with the day following the act, event, or default, and 
includes the last day of the period, unless it is a Saturday, Sunday, or 
national legal holiday, in which event the period runs until the end of 
the next day which is not a Saturday, Sunday, or national legal holiday. 
When the period of time prescribed or allowed is less than seven (7) 
days, intermediate Saturdays, Sundays, or national legal holidays shall 
be excluded from the computation. [Rule 101.]



Sec. 502.102  Enlargement of time to file documents.

    Motions for enlargement of time for the filing of any pleading or 
other document, or in connection with the procedures of subpart L of 
this part, shall set forth the reasons for the motion. Such motions will 
be granted only under exceptional circumstances duly demonstrated in the 
request. Such motions shall conform to the requirements of subpart H of 
this part, except as to service if they show that the parties have 
received actual notice of the motion; and in relation to briefs, 
exceptions, and replies to exceptions, such motions shall conform to the 
further provisions of Secs. 502.222 and 502.227. Upon motion made after 
the expiration of the specified period, the filing may be permitted 
where reasonable grounds are found for the failure to file. Replies to 
such motions shall conform to the requirements of Sec. 502.74. [Rule 
102.]



Sec. 502.103  Reduction of time to file documents.

    Except as otherwise provided by law and for good cause, the 
Commission, with respect to matters pending before it, and the presiding 
officer, with respect to matters pending before him or her, may reduce 
any time limit prescribed in the rules in this part. [Rule 103.]



Sec. 502.104  Postponement of hearing.

    Motions for postponement of any hearing date shall set forth the 
reasons for the motion, and shall conform to the requirements of subpart 
H of this part, except as to service if they show that parties have 
received such actual notice of motion. Such motions will be granted only 
if found necessary to prevent substantial delay, expense, detriment to 
the public interest or undue prejudice to a party. Replies to such 
motions shall conform to the requirements of Sec. 502.74. [Rule 104.]



Sec. 502.105  Waiver of rules governing enlargements of time and postponements of hearings.

    The Commission, the presiding officer, or the Chief Administrative 
Law Judge may waive the requirements of Secs. 502.102 and 502.104, as to 
replies to pleadings, etc., to motions for enlargement of time or 
motions to postpone a hearing, and may rule ex parte on such requests. 
Requests for enlargement of time or motions to postpone or cancel a 
prehearing conference or hearing must be received, whether orally or in 
writing, at least five (5) days before the scheduled date. Except for 
good cause shown, failure to meet this requirement may result in summary 
rejection of the request. [Rule 105.]



          Subpart H--Form, Execution, and Service of Documents



Sec. 502.111  Form and appearance of documents filed with Commission.

    (a) All papers to be filed under the rules in this part may be 
reproduced by printing or by any other process, provided the copies are 
clear and legible, shall be dated, the original signed in ink, show the 
docket description and title of the proceeding, and show the title, if 
any, and address of the signer. If typewritten, the impression shall be 
on only one side of the paper and shall be double spaced except that 
quotations shall be single spaced and indented. Documents not printed, 
except correspondence and exhibits, should be on strong, durable paper 
and shall be not more than 8\1/2\ inches wide and 12 inches long, with a 
left hand margin 1\1/2\ inches wide. Printed documents shall be printed 
in clear type

[[Page 48]]

(never smaller than small pica or 11-point type) adequately leaded, and 
the paper shall be opaque and unglazed. [Rule 111.]
    (b) Filings by facsimile will not be accepted. Photocopies of 
facsimile transmissions of signature pages on filings will be 
tentatively accepted for the purpose of meeting filing deadlines pending 
receipt of the original within seven working days. Use of photocopies of 
facsimile transmissions in exhibits to part 502 filings is permitted.

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28400, July 11, 1990; 61 
FR 66617, Dec. 18, 1996]



Sec. 502.112  Subscription and verification of documents.

    (a) If a party is represented by an attorney or other person 
qualified to practice before the Commission under the rules in this 
part, each pleading, document or other paper of such party filed with 
the Commission shall be signed by at least one person of record admitted 
to practice before the Commission in his or her individual name, whose 
address shall be stated. Except when otherwise specifically provided by 
rule or statute, such pleading, document or paper need not be verified 
or accompanied by affidavit. The signature of a person admitted or 
qualified to practice before the Commission constitutes a certificate by 
the signer that the signer has read the pleading, document or paper; 
that the signer is authorized to file it; that to the best of the 
signer's knowledge, information, and belief formed after reasonable 
inquiry the filing is well grounded in fact and is warranted by existing 
law or a good faith argument for the extension, modification, or 
reversal of existing law; and that it is not interposed for any improper 
purpose, such as to harass or to cause unnecessary delay or needless 
increase in the cost of litigation. For a willful violation of this 
section, a person admitted or qualified to practice before the 
Commission may be subjected to appropriate disciplinary action.
    (b) If a party is not represented by a person admitted or qualified 
to practice before the Commission, each pleading, document or other 
paper of such party filed with the Commission shall be signed and 
verified under oath by the party or by a duly authorized officer or 
agent of the party, whose address and title shall be stated. The form of 
verification shall be substantially as set forth in exhibit No. 1 to 
subpart E. [Rule 112.]
    (c) Wherever, under any rules of this part, any matter is required 
or permitted to be supported, evidenced, established, or proved by the 
sworn declaration, verification, certificate, statement, oath, or 
affidavit, in writing of the person making the same (other than a 
deposition under Sec. 502.203 or Sec. 502.204), such matter may, with 
like force and effect, be supported, evidenced, established, or proved 
by the unsworn declaration, certificate, verification, or statement, in 
writing of such person which is subscribed by such person, as true under 
penalty of perjury, in substantially the following form.
    (1) If executed without the United States: ``I declare (or certify, 
verify, or state) under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct.''
    (2) If executed within the United States, its territories, 
possessions, or commonwealths: ``I declare (or certify, verify, or 
state) under penalty of perjury that the foregoing is true and 
correct.''

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 58 
FR 27210, May 7, 1993]



Sec. 502.113  Service by the Commission.

    Complaints filed pursuant to Sec. 502.62, amendments to complaints 
(unless otherwise authorized by the presiding officer pursuant to 
Sec. 502.70(b)), and complainant's memoranda filed in shortened 
procedure cases will be served by the Secretary of the Commission. In 
addition to and accompanying the original of every document filed with 
the Commission for service by the Commission, there shall be a 
sufficient number of copies for use of the Commission (see Sec. 502.118) 
and for service on each party to the proceeding. [Rule 113.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27210, May 7, 1993]

[[Page 49]]



Sec. 502.114  Service and filing by parties.

    (a) Except as otherwise specifically provided by the rules in this 
part, all pleadings, documents, and papers of every kind (except 
requests for subpenas) in proceedings before the Commission under the 
rules in this part (other than documents served by the Commission under 
Sec. 502.113 and documents submitted at a hearing or prehearing 
conference) shall, when tendered to the Commission or the presiding 
officer for filing, show that service has been made upon all parties to 
the proceeding and upon any other persons required by the rules in this 
part to be served. Such service shall be made by delivering one copy to 
each party: by hand delivering in person; by mail, properly addressed 
with postage prepaid; or by courier.
    (b) Service on all prior participants shall be shown when submitting 
comments or replies beyond the initial round, or when submitting post-
decisional pleadings and replies such as petitions for reconsideration, 
or for stay under rule 261 or to reopen under rule 230 in all general 
notice proceedings, including those involving disposition of petitions 
for rulemaking (rule 51), petitions for declaratory order (rule 68), 
petitions general (rule 69), notices of proposed rulemaking (rule 53), 
proceedings under section 19 of the Merchant Marine Act, 1920, 46 U.S.C. 
app. 876(1)(b) (part 585), and proceedings under section 13(b)(5) of the 
Shipping Act of 1984, 46 U.S.C. app. 1712(b)(5) (part 587). A list of 
all participants may be obtained from the Secretary of the Commission.
    (c) Except with respect to filing of complaints pursuant to 
Secs. 502.62 and 502.63, and claims pursuant to Sec. 502.302, the date 
of filing shall be either the date on which the pleading, document, or 
paper is physically lodged with the Commission by a party or the date 
which a party certifies it to have been deposited in the mail or 
delivered to a courier. [Rule 114.]

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28400, July 11, 1990; 61 
FR 66617, Dec. 18, 1996]



Sec. 502.115  Service on attorney or other representative.

    When a party has appeared by attorney or other representative, 
service upon each attorney or other representative of record will be 
deemed service upon the party, except that, if two or more attorneys of 
record are partners or associates of the same firm, only one of them 
need be served. [Rule 115.]



Sec. 502.116  Date of service.

    The date of service of documents served by the Commission shall be 
the date shown in the service stamp thereon. The date of service of 
documents served by parties shall be the day when matter served is 
deposited in the United States mail, delivered to a courier, or is 
delivered in person, as the case may be. In computing the time from such 
dates, the provisions of Sec. 502.101 shall apply. [Rule 116.]



Sec. 502.117  Certificate of service.

    The original of every document filed with the Commission and 
required to be served upon all parties to a proceeding shall be 
accompanied by a certificate of service signed by the party making 
service, stating that such service has been made upon each party to the 
proceeding. Certificates of service may be in substantially the 
following form:

                         Certificate of Service

    I hereby certify that I have this day served the foregoing document 
upon [all parties of record or name of person(s)] by [mailing, 
delivering to courier or delivering in person] a copy to each such 
person.

    Dated at, ------ this ------ day of ------ 19--.

(Signature)____________________________________________________________

(For)__________________________________________________________________
[Rule 117.]



Sec. 502.118  Copies of documents for use of the Commission.

    (a) Except as otherwise provided in the rules in this part, the 
original and fifteen (15) copies of every document filed and served in 
proceedings before the Commission shall be furnished for the 
Commission's use. If a certificate of service accompanied the original 
document, a copy of such certificate shall be attached to each such copy 
of the document.
    (b) In matters pending before an administrative law judge the 
following copy requirements apply.

[[Page 50]]

    (1) An original and fifteen copies shall be filed with the Secretary 
of:
    (i) Appeals and replies thereto filed pursuant to Sec. 502.153;
    (ii) Memoranda submitted under shortened procedures of subpart K of 
this part;
    (iii) Briefs submitted pursuant to Sec. 502.221;
    (iv) All motions, replies and other filings for which a request is 
made of the administrative law judge for certification to the Commission 
or on which it otherwise appears it will be necessary for the Commission 
to rule either directly or upon review of the administrative law judge's 
disposition thereof, pursuant to Sec. 502.227;
    (v) Answers to complaints filed pursuant to Sec. 502.64.
    (2) An original and four copies shall be filed with the Secretary of 
prehearing statements required by Sec. 502.95, stipulations under 
Sec. 502.162, and all other motions, petitions, or other written 
communications seeking a ruling from the presiding administrative law 
judge.
    (3)(i) A single copy shall be filed with the Secretary of requests 
for discovery, answers, or objections exchanged among the parties under 
procedures of subpart L of this part. Such materials will not be part of 
the record for decision unless admitted by the presiding officer or 
Commission.
    (ii) Motions filed pursuant to Sec. 502.201 are governed by the 
requirements of paragraph (b)(2) of this section and motions involving 
persons and documents located in a foreign country are governed by the 
requirements of paragraph (b)(1)(iv) of this section.
    (4) One copy of each exhibit shall be furnished to the official 
reporter, to each of the parties present at the hearing and to the 
Presiding Officer unless he or she directs otherwise. If submitted other 
than at a hearing, the ``reporter's'' copy of an exhibit shall be 
furnished to the administrative law judge for later inclusion in the 
record if and when admitted.
    (5) Copies of prepared testimony submitted pursuant to Sec. 502.157 
are governed by the requirements for exhibits in paragraph (b)(4) of 
this section. [Rule 118.]

[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28400, July 11, 1990; 61 
FR 66617, Dec. 18, 1996]



Sec. 502.119  Documents containing confidential materials.

    Except as otherwise provided in the rules of this part, all filings 
which contain information previously designated as confidential pursuant 
to Secs. 502.167, 502.201(i)(1)(vii), or any other rules of this part or 
for which a request for protective order pursuant to 
Sec. 502.201(i)(1)(vii) is pending, are subject to the following 
requirements:
    (a) Filings shall be accompanied by a transmittal letter which 
identifies the filing as confidential and describes the nature and 
extent of the authority for requesting confidential treatment.
    (b) Such filings shall consist of public and confidential copies. 
The public copies shall exclude confidential materials, shall indicate 
on the cover page and on each affected page ``confidential materials 
excluded,'' and shall be filed in an original and one copy. The 
confidential copies shall consist of the complete filing and shall 
include a cover page marked ``confidential-restricted,'' with the 
confidential materials likewise clearly marked on each page.
    (c) Confidential treatment afforded by this section is subject to 
the proviso that any information designated as confidential may be used 
by the administrative law judge or the Commission if deemed necessary to 
a correct decision in the proceeding. [Rule 119.]

[55 FR 28400, July 11, 1990, as amended at 58 FR 27211, May 7, 1993]



                           Subpart I--Subpenas



Sec. 502.131  Requests; issuance.

    Subpenas for the attendance of witnesses or the production of 
evidence shall be issued upon request of any party, without notice to 
any other party. Requests for subpenas for the attendance of witnesses 
may be made orally or in writing; requests for subpenas for the 
production of evidence shall be in writing. The party requesting the 
subpena shall tender to the presiding

[[Page 51]]

officer an original and at least two copies of such subpena. Where it 
appears to the presiding officer that the subpena sought may be 
unreasonable, oppressive, excessive in scope, or unduly burdensome, he 
or she may in his or her discretion, as a condition precedent to the 
issuance of the subpena, require the person seeking the subpena to show 
the general relevance and reasonable scope of the testimony or other 
evidence sought. [Rule 131.]



Sec. 502.132  Motions to quash or modify.

    (a) Except when issued at a hearing, or in connection with the 
taking of a deposition, within ten (10) days after service of a subpena 
for attendance of a witness or a subpena for production of evidence, but 
in any event at or before the time specified in the subpena for 
compliance therewith, the person to whom the subpena is directed may, by 
motion with notice to the party requesting the subpena, petition the 
presiding officer to quash or modify the subpena.
    (b) If served at the hearing, the person to whom the subpena is 
directed may, by oral application at the hearing, within a reasonable 
time fixed by the presiding officer, petition the presiding officer to 
revoke or modify the subpena.
    (c) If served in connection with the taking of a deposition pursuant 
to Sec. 502.203 unless otherwise agreed to by all parties or otherwise 
ordered by the presiding officer, the party who has requested the 
subpena shall arrange that it be served at least twenty (20) days prior 
to the date specified in the subpena for compliance therewith, the 
person to whom the subpena is directed may move to quash or modify the 
subpena within ten (10) days after service of the subpena, and a reply 
to such motion shall be served within five (5) days thereafter. [Rule 
132.]



Sec. 502.133  Attendance and mileage fees.

    Witnesses summoned by subpena to a hearing are entitled to the same 
fees and mileage that are paid to witnesses in courts of the United 
States. Fees and mileage shall be paid, upon request, by the party at 
whose instance the witness appears. [Rule 133.]



Sec. 502.134  Service of subpenas.

    If service of a subpena is made by a United States marshal, or his 
or her deputy, or an employee of the Commission, such service shall be 
evidenced by his or her return thereon. If made by any other person, 
such person shall make affidavit thereto, describing the manner in which 
service is made, and return such affidavit on or with the original 
subpena. In case of failure to make service, the reasons for the failure 
shall be stated on the original subpena. In making service, the original 
subpena shall be exhibited to the person served, shall be read to him or 
her if he or she is unable to read, and a copy thereof shall be left 
with him or her. The original subpena, bearing or accompanied by 
required return, affidavit, or statement, shall be returned without 
delay to the Commission, or if so directed on the subpena, to the 
presiding officer before whom the person named in the subpena is 
required to appear. [Rule 134.]



Sec. 502.135  Subpena of Commission staff personnel, documents or things.

    (a) A subpena for the attendance of Commission staff personnel or 
for the production of documentary materials in the possession of the 
Commission shall be served upon the Secretary. If the subpena is 
returnable at hearing, a motion to quash may be filed within five (5) 
days of service and attendance shall not be required until the presiding 
officer rules on said motion. If the subpena is served in connection 
with prehearing depositions, the procedure to be followed with respect 
to motions to quash and replies thereto will correspond to the 
procedures established with respect to motions and replies in 
Sec. 502.132(c).
    (b) The General Counsel shall designate an attorney to represent any 
Commission staff personnel subpenaed under this section. The attorney so 
designated shall not thereafter participate in the Commission's 
decision-making process concerning any issue in the proceeding.
    (c) Rulings of the presiding officer issued under Sec. 502.135(a) 
shall become final rulings of the Commission unless an appeal is filed 
within ten (10) days after date of issuance of such rulings or

[[Page 52]]

unless the Commission, on its own motion, reverses, modifies, or stays 
such rulings within twenty (20) days of their issuance. Replies to 
appeals may be filed within ten (10) days. No ruling of the presiding 
officer shall be effective until twenty (20) days from date of issuance 
unless the Commission otherwise directs. [Rule 135.]



Sec. 502.136  Enforcement.

    In the event of failure to comply with any subpena or order issued 
in connection therewith, the Commission may seek enforcement as provided 
in Sec. 502.210(b). [Rule 136.]



            Subpart J--Hearings; Presiding Officers; Evidence



Sec. 502.141  Hearings not required by statute.

    The Commission may call informal public hearings, not required by 
statute, to be conducted under the rules in this part where applicable, 
for the purpose of rulemaking or to obtain information necessary or 
helpful in the determination of its policies or the carrying out of its 
duties, and may require the attendance of witnesses and the production 
of evidence to the extent permitted by law. [Rule 141.]



Sec. 502.142  Hearings required by statute.

    In complaint and answer cases, investigations on the Commission's 
own motion, and in other rulemaking and adjudication proceedings in 
which a hearing is required by statute, formal hearings shall be 
conducted pursuant to 5 U.S.C. 554. [Rule 142.]



Sec. 502.143  Notice of nature of hearing, jurisdiction and issues.

    Persons entitled to notice of hearings, except those notified by 
complaint served under Sec. 502.133, will be duly and timely informed of 
(a) the nature of the proceeding, (b) the legal authority and 
jurisdiction under which the proceeding is conducted, and (c) the terms, 
substance, and issues involved, or the matters of fact and law asserted, 
as the case may be. Such notice shall be published in the Federal 
Register unless all persons subject thereto are named and either are 
personally served or otherwise have actual notice thereof in accordance 
with law. [Rule 143.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.144  Notice of time and place of hearing.

    Notice of hearing will designate the time and place thereof, the 
person or persons who will preside, and the kind of decision to be 
issued. The date or place of a hearing for which notice has been issued 
may be changed when warranted. Reasonable notice will be given to the 
parties or their representatives of the time and place of the change 
thereof, due regard being had for the public interest and the 
convenience and necessity of the parties or their representatives. 
Notice may be served by mail or telegraph. [Rule 144.]



Sec. 502.145  Presiding officer.

    (a) Definition. Presiding officer includes, where applicable, a 
member of the Commission or an administrative law judge. (See 
Sec. 502.25.)
    (b) Designation of administrative law judge. An administrative law 
judge will be designated by the Chief of the Commission's Office of 
Administrative Law Judges to preside at hearings required by statute, in 
rotation so far as practicable, unless the Commission or one or more 
members thereof shall preside, and will also preside at hearings not 
required by statute when designated to do so by the Commission.
    (c) Unavailability. If the presiding officer assigned to a 
proceeding becomes unavailable to the Commission, the Commission, or 
Chief Judge (if such presiding officer was an administrative law judge), 
shall designate a qualified officer to take his or her place. Any motion 
predicated upon the substitution of a new presiding officer for one 
originally designated shall be made within ten (10) days after notice of 
such substitution. [Rule 145.]



Sec. 502.146  Commencement of functions of Office of Administrative Law Judges.

    In proceedings handled by the Office of Administrative Law Judges, 
its functions shall attach:

[[Page 53]]

    (a) Upon the service by the Commission of a complaint filed pursuant 
to Sec. 502.62; or
    (b) Upon reference by the Commission of a petition for a declaratory 
order pursuant to Sec. 502.68; or
    (c) Upon forwarding for assignment by the Office of the Secretary of 
a special docket application pursuant to Sec. 502.92; or
    (d) Upon the initiation of a proceeding and ordering of hearing 
before an administrative law judge. [Rule 146.]



Sec. 502.147  Functions and powers.

    (a) Of presiding officer. The officer designated to hear a case 
shall have authority to arrange and give notice of hearing; sign and 
issue subpenas authorized by law; take or cause depositions to be taken; 
rule upon proposed amendments or supplements to pleadings; delineate the 
scope of a proceeding instituted by order of the Commission by amending, 
modifying, clarifying or interpreting said order, except with regard to 
that portion of any order involving the Commission's suspension 
authority set forth in section 3, Intercoastal Shipping Act, 1933; 
inform the parties as to the availability of one or more alternative 
means of dispute resolution, encourage use of such methods, and require 
consideration of their use at an early stage of the proceeding; hold 
conferences for the settlement or simplification of the issues by 
consent of the parties or by the use of alternative means of dispute 
resolution; transmit the request of parties for the appointment of a 
mediator or settlement judge, as provided by Sec. 502.91 of this part; 
require the attendance at any such conference pursuant to 5 U.S.C. 
556(c)(8), of at least one representative of each party who has 
authority to negotiate concerning resolution of issues in controversy; 
regulate the course of the hearing; prescribe the order in which 
evidence shall be presented; dispose of procedural requests or similar 
matters; hear and rule upon motions; administer oaths and affirmations; 
examine witnesses; direct witnesses to testify or produce evidence 
available to them which will aid in the determination of any question of 
fact in issue; rule upon offers of proof and receive relevant material, 
reliable and probative evidence; act upon petitions to intervene; permit 
submission of facts, arguments, offers of settlement, and proposals of 
adjustment; and, if the parties so request, issue formal opinions 
providing tentative evaluations of the evidence submitted; hear oral 
argument at the close of testimony; fix the time for filing briefs, 
motions, and other documents to be filed in connection with hearings and 
the administrative law judge's decision thereon, except as otherwise 
provided by the rules in this part; act upon petitions for enlargement 
of time to file such documents, including answers to formal complaints; 
and dispose of any other matter that normally and properly arises in the 
course of proceedings. The presiding officer or the Commission may 
exclude any person from a hearing for disrespectful, disorderly, or 
contumacious language or conduct.
    (b) All of the functions delegated in subparts A to Q of this part, 
inclusive, to the Chief Judge, presiding officer, or administrative law 
judge include the functions with respect to hearing, determining, 
ordering, certifying, reporting, or otherwise acting as to any work, 
business, or matter, pursuant to the provisions of section 105 of 
Reorganization Plan No. 7 of 1961. [Rule 147.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 58 
FR 38650, July 19, 1993]



Sec. 502.148  Consolidation of proceedings.

    The Commission or the Chief Judge (or designee) may order two or 
more proceedings which involve substantially the same issues 
consolidated and heard together. [Rule 148.]



Sec. 502.149  Disqualification of presiding or participating officer.

    Any presiding or participating officer may at any time withdraw if 
he or she deems himself or herself disqualified, in which case there 
will be designated another presiding officer. If a party to a 
proceeding, or its representative, files a timely and sufficient 
affidavit of personal bias or disqualification of a presiding or 
participating officer, the Commission will determine the matter as a 
part of the record and decision in the case. [Rule 149.]

[[Page 54]]



Sec. 502.150  Further evidence required by presiding officer during hearing.

    At any time during the hearing, the presiding officer may call for 
further evidence upon any issue, and require such evidence where 
available to be presented by the party or parties concerned, either at 
the hearing or adjournment thereof. [Rule 150.]



Sec. 502.151  Exceptions to rulings of presiding officer unnecessary.

    Formal exceptions to rulings of the presiding officer are 
unnecessary. It is sufficient that a party, at the time the ruling of 
the presiding officer is made or sought, makes known the action which it 
desires the presiding officer to take or its objection to an action 
taken, and its grounds therefor. [Rule 151.]



Sec. 502.152  Offer of proof.

    An offer of proof made in connection with an objection taken to any 
ruling of the presiding officer rejecting or excluding proffered oral 
testimony shall consist of a statement of the substance of the evidence 
which counsel contends would be adduced by such testimony; and, if the 
excluded evidence consists of evidence in documentary or written form or 
of reference to documents or records, a copy of such evidence shall be 
marked for identification and shall constitute the offer of proof. [Rule 
152.]



Sec. 502.153  Appeal from ruling of presiding officer other than orders of dismissal in whole or in part.

    (a) Rulings of the presiding officer may not be appealed prior to or 
during the course of the hearing, or subsequent thereto, if the 
proceeding is still before him or her, except where the presiding 
officer shall find it necessary to allow an appeal to the Commission to 
prevent substantial delay, expense, or detriment to the public interest, 
or undue prejudice to a party.
    (b) Any party seeking to appeal must file a motion for leave to 
appeal no later than fifteen (15) days after written service or oral 
notice of the ruling in question, unless the presiding officer, for good 
cause shown, enlarges or shortens the time. Any such motion shall 
contain not only the grounds for leave to appeal but the appeal itself.
    (c) Replies to the motion for leave to appeal and the appeal may be 
filed within fifteen (15) days after date of service thereof, unless the 
presiding officer, for good cause shown, enlarges or shortens the time. 
If the motion is granted, the presiding officer shall certify the appeal 
to the Commission.
    (d) Unless otherwise provided, the certification of the appeal shall 
not operate as a stay of the proceeding before the presiding officer.
    (e) The provisions of Sec. 502.10 shall not apply to this section. 
[Rule 153.]



Sec. 502.154  Rights of parties as to presentation of evidence.

    Every party shall have the right to present its case or defense by 
oral or documentary evidence, to submit rebuttal evidence, and to 
conduct such cross-examination as may be required for a full and true 
disclosure of the facts. The presiding officer shall, however, have the 
right and duty to limit the introduction of evidence and the examination 
and cross-examination of witnesses when in his or her judgment, such 
evidence or examination is cumulative or is productive of undue delay in 
the conduct of the hearing. [Rule 154.]



502.155  Burden of proof.

    In all cases, as prescribed by the Administrative Procedure Act, 5 
U.S.C. 556(d), the burden of proof shall be on the proponent of the rule 
or order. [Rule 155.]

[61 FR 66617, Dec. 18, 1996]



Sec. 502.156  Evidence admissible.

    In any proceeding under the rules in this part, all evidence which 
is relevant, material, reliable and probative, and not unduly 
repetitious or cumulative, shall be admissible. All other evidence shall 
be excluded. Unless inconsistent with the requirements of the 
Administrative Procedure Act and these Rules, the Federal Rules of 
Evidence, Public Law 93-595, effective July 1, 1975, will also be 
applicable. [Rule 156.]



Sec. 502.157  Written evidence.

    (a) The use of written statements in lieu of oral testimony shall be 
resorted

[[Page 55]]

to where the presiding officer in his or her discretion rules that such 
procedure is appropriate. The statements shall be numbered in 
paragraphs, and each party in its rebuttal shall be required to list the 
paragraphs to which it objects, giving an indication of its reasons for 
objecting. Statistical exhibits shall contain a short commentary 
explaining the conclusions which the offeror draws from the data. Any 
portion of such testimony which is argumentative shall be excluded. 
Where written statements are used, copies of the statement and any 
rebuttal statement shall be furnished to all parties, as shall copies of 
exhibits. The presiding officer shall fix respective dates for the 
exchange of such written rebuttal statements and exhibits in advance of 
the hearing to enable study by the parties of such testimony. 
Thereafter, the parties shall endeavor to stipulate as many of the facts 
set forth in the written testimony as they may be able to agree upon. 
Oral examination of witnesses shall thereafter be confined to facts 
which remain in controversy, and a reading of the written statements at 
the hearing will be dispensed with unless the presiding officer 
otherwise directs.
    (b) Where a formal hearing is held in a rulemaking proceeding, 
interested persons will be afforded an opportunity to participate 
through submission of relevant, material, reliable and probative written 
evidence properly verified, except that such evidence submitted by 
persons not present at the hearing will not be made a part of the record 
if objected to by any party on the ground that the person who submits 
the evidence is not present for cross-examination. [Rule 157.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.158  Documents containing matter not material.

    Where written matter offered in evidence is embraced in a document 
containing other matter which is not intended to be offered in evidence, 
the offering party shall present the original document to all parties at 
the hearing for their inspection, and shall offer a true copy of the 
matter which is to be introduced, unless the presiding officer 
determines that the matter is short enough to be read into the record. 
Opposing parties shall be afforded an opportunity to introduce in 
evidence, in like manner, other portions of the original document which 
are material and relevant. [Rule 158.]



Sec. 502.159  [Reserved]



Sec. 502.160  Records in other proceedings.

    When any portion of the record before the Commission in any 
proceeding other than the one being heard is offered in evidence, a true 
copy of such portion shall be presented for the record in the form of an 
exhibit unless the parties represented at the hearing stipulate upon the 
record that such portion may be incorporated by reference. [Rule 160.]



Sec. 502.161  Commission's files.

    Where any matter contained in a tariff, report, or other document on 
file with the Commission is offered in evidence, such document need not 
be produced or marked for identification, but the matter so offered 
shall be specified in its particularity, giving tariff number and page 
number of tariff, report, or document in such manner as to be readily 
identified, and may be received in evidence by reference, subject to 
comparison with the original document on file. [Rule 161.]



Sec. 502.162  Stipulations.

    The parties may, by stipulation, agree upon any facts involved in 
the proceeding and include them in the record with the consent of the 
presiding officer. It is desirable that facts be thus agreed upon 
whenever practicable. Writen stipulations shall be subscribed and shall 
be served upon all parties of record unless presented at the hearing or 
prehearing conference. A stipulation may be proposed even if not 
subscribed by all parties without prejudice to any nonsubscribing 
party's right to cross-examine and offer rebuttal evidence. [Rule 162.]



Sec. 502.163  Receipt of documents after hearing.

    Documents or other writings to be submitted for the record after the 
close

[[Page 56]]

of the hearing will not be received in evidence except upon permission 
of the presiding officer. Such documents or other writings when 
submitted shall be accompanied by a statement that copies have been 
served upon all parties, and shall be received, except for good cause 
shown, not later than ten (10) days after the close of the hearing and 
not less than (10) days prior to the date set for filing briefs. Exhibit 
numbers will not be assigned until such documents are actually received 
and incorporated in the record. [Rule 163.]



Sec. 502.164  Oral argument at hearings.

    Oral argument at the close of testimony may be ordered by the 
presiding officer in his or her discretion. [Rule 164.]



Sec. 502.165  Official transcript.

    (a) The Commission will designate the official reporter for all 
hearings. The official transcript of testimony taken, together with any 
exhibits and any briefs or memoranda of law filed therewith, shall be 
filed with the Commission. Transcripts of testimony will be available in 
any proceeding under the rules in this part, and will be supplied by the 
official reporter to the parties and to the public, except when required 
for good cause to be held confidential, at rates not to exceed the 
maximum rates fixed by contract between the Commission and the reporter.
    (b)(1) Section 11 of the Federal Advisory Committee Act provides 
that, except where prohibited by contractual agreements entered into 
prior to the effective date of this Act, agencies and advisory 
committees shall make available to any person, at actual cost of 
duplication, copies of transcripts of agency proceedings or advisory 
committee meetings. As used in this section, ``agency proceeding'' means 
any proceeding as defined in 5 U.S.C. 551(12).
    (2) The Office of Management and Budget has interpreted this 
provision as being applicable to proceedings before the Commission and 
its administrative law judges. (Guidelines, 38 FR 12851, May 16, 1973.)
    (3) The Commission interprets section 11 and the OMB guidelines as 
follows:
    (i) Future contracts between the Commission and the successfully 
bidding recording firm will provide that any party to a Commission 
proceeding or other interested person (hereinafter included within the 
meaning of ``party'') shall be able to obtain a copy of the transcript 
of the proceeding in which it is involved at the actual cost of 
duplication of the original transcript, which includes a reasonable 
amount for overhead and profit, except where it requests delivery of 
copies in a shorter period of time than is required for delivery by the 
Commission.
    (ii) The Commission will bear the full expense of transcribing all 
of its administrative proceedings where it requests regular delivery 
service (as set forth in the Contract). In cases where the Commission 
requests daily delivery of transcript copies (as set forth in the 
Contract), any party may receive daily delivery service at the actual 
cost of duplication.
    (iii)(A) Where the Commission does not request daily copy service, 
any party requesting such service must bear the incremental cost of 
transcription above the regular copy transcription cost borne by the 
Commission, in addition to the actual cost of duplication, except that 
where the party applies for and properly shows that the furnishing of 
daily copy is indispensible to the protection of a vital right or 
interest in achieving a fair hearing, the presiding officer in the 
proceeding in which the application is made shall order that daily copy 
service be provided the applying party at the actual cost of 
duplication, with the full cost of transcription being borne by the 
Commission.
    (B) In the event a request for daily copy is denied by the presiding 
officer, the requesting party, in order to obtain daily copy, must pay 
the cost of transcription over and above that borne by the Commission, 
i.e., the incremental cost between that paid by the Commission when it 
requests regular copy and when it requests daily copy.
    (C) The decision of the presiding officer in this situation is 
interpreted as

[[Page 57]]

falling within the scope of the functions and powers of the presiding 
officer, as defined in Sec. 502.147(a). [Rule 165.]



Sec. 502.166  Corrections of transcript.

    Motions made at the hearing to correct the record will be acted upon 
by the presiding officer. Motions made after the hearing to correct the 
record shall be filed with the presiding officer within twenty-five (25) 
days after the last day of hearing or any session thereof, unless 
otherwise directed by the presiding officer, and shall be served on all 
parties. Such motions may be in the form of a letter. If no objections 
are received within ten (10) days after date of service, the transcript 
will, upon approval of the presiding officer, be changed to reflect such 
corrections. If objections are received, the motion will be acted upon 
with due consideration of the stenographic record of the hearing. [Rule 
166.]



Sec. 502.167  Objection to public disclosure of information.

    Upon objection to public disclosure of any information sought to be 
elicited during a hearing, the presiding officer may in his or her 
discretion order that the witness shall disclose such information only 
in the presence of those designated and sworn to secrecy by the 
presiding officer. The transcript of testimony shall be held 
confidential. Copies of said transcript need be served only upon the 
parties to whose representatives the information has been disclosed and 
upon such other parties as the presiding officer may designate. This 
rule is subject to the proviso that any information given pursuant 
thereto, may be used by the presiding officer or the Commission if 
deemed necessary to a correct decision in the proceeding. [Rule 167.]

[55 FR 28400, July 11, 1990]



Sec. 502.168  Copies of data or evidence.

    Every person compelled to submit data or evidence shall be entitled 
to retain or, on payment of proper costs, procure a copy of transcript 
thereof. [Rule 168.]



Sec. 502.169  Record of decision.

    The transcript of testimony and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the exclusive 
record for decision. [Rule 169.]



                     Subpart K--Shortened Procedure



Sec. 502.181  Selection of cases for shortened procedure; consent required.

    By consent of the parties and with approval of the Commission or 
presiding officer, a complaint proceeding may be conducted under 
shortened procedure without oral hearing, except that a hearing may be 
ordered by the presiding officer at the request of any party or in his 
or her discretion. [Rule 181.]



Sec. 502.182  Complaint and memorandum of facts and arguments and filing fee.

    A complaint filed with the Commission under this subpart shall have 
attached a memorandum of the facts, subscribed and verified according to 
Sec. 502.112, and of arguments separately stated, upon which it relies. 
The original of each complaint with memorandum shall be accompanied by 
copies for the Commission's use. The complaint shall be accompanied by 
remittance of a $184 filing fee. [Rule 182.]

[49 FR 44369, Nov. 6, 1984, as amended at 59 FR 59170, Nov. 16, 1994; 63 
FR 50535, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, the last 
sentence of Sec. 502.182 was revised, effective Nov. 2, 1998. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 502.182  Complaint and memorandum of facts and arguments and filing 
          fee.

    * * * The complaint shall be accompanied by remittance of a $166 
filing fee. [Rule 182.]



Sec. 502.183  Respondent's answering memorandum.

    Within twenty-five (25) days after date of service of the complaint, 
unless a shorter period is fixed, each respondent shall, if it consents 
to the shortened procedure provided in this subpart, serve upon 
complainant pursuant to subpart H of this part an answering memorandum 
of the facts, subscribed

[[Page 58]]

and verified according to Sec. 502.112, and of arguments, separately 
stated, upon which it relies. The original of the answering memorandum 
shall be accompanied by a certificate of service as provided in 
Sec. 502.114 and shall be accompanied by copies for the Commission's 
use. If the respondent does not consent to the proceeding being 
conducted under the shortened procedure provided in this subpart, the 
matter will be governed by subpart E of this part and the respondent 
shall file an answer under Sec. 502.64. [Rule 183.]



Sec. 502.184  Complainant's memorandum in reply.

    Within fifteen (15) days after the date of service of the answering 
memorandum prescribed in Sec. 502.183, unless a shorter period is fixed, 
each complainant may file a memorandum in reply, subscribed and verified 
according to Sec. 502.112, served as provided in Sec. 502.114, and 
accompanied by copies for the Commission's use. This will close the 
record for decision unless the presiding officer determines that the 
record is insufficient and orders the submission of additional 
evidentiary materials. [Rule 184.]



Sec. 502.185  Service of memoranda upon and by interveners.

    Service of all memoranda shall be made upon any interveners. 
Interveners shall file and serve memoranda in conformity with the 
provisions relating to the parties on whose behalf they intervene. [Rule 
185.]



Sec. 502.186  Contents of memoranda.

    The memorandum should contain concise arguments and fact, the same 
as would be offered if a formal hearing were held and briefs filed. If 
reparation is sought, paid freight bills should accompany complainant's 
original memorandum. [Rule 186.]



Sec. 502.187  Procedure after filing of memoranda.

    An initial, recommended, or tentative decision will be served upon 
the parties in the same manner as is provided under Sec. 502.225. 
Thereafter, the procedure will be the same as that in respect to 
proceedings after formal hearing. [Rule 187.]



     Subpart L--Depositions, Written Interrogatories, and Discovery



Sec. 502.201  General provisions governing discovery.

    (a) Applicability. The procedures described in this subpart are 
available in all adjudicatory proceedings under section 22 of the 
Shipping Act, 1916 and the Shipping Act of 1984. Unless otherwise 
ordered by the presiding officer, the copy requirements of 
Sec. 502.118(b)(3)(i) shall be observed.
    (b) Schedule of use--(1) Complaint proceedings. Any party desiring 
to use the procedures provided in this subpart shall commence doing so 
at the time it files its initial pleading, e.g., complaint, answer or 
petition for leave to intervene. Discovery matters accompanying 
complaints shall be filed with the Secretary of the Commission for 
service pursuant to Sec. 502.113.
    (2) Commission instituted proceedings. All parties desiring to use 
the procedures provided in this subpart shall commence to do so within 
30 days of the service of the Commission's order initiating the 
proceeding.
    (3) Commencement of discovery. The requirement to commence discovery 
under paragraphs (b)(1) and (b)(2) of this section shall be deemed 
satisfied when a party serves any discovery request under this subpart 
upon a party or person from whom a response is deemed necessary by the 
party commencing discovery. A schedule for further discovery pursuant to 
this subpart shall be established at the conference of the parties 
pursuant to paragraph (d) of this section.
    (c) Completion of discovery. Discovery shall be completed within 120 
days of the service of the complaint or the Commission's order 
initiating the proceeding.
    (d) Duty of the Parties. In all proceedings in which the procedures 
of this subpart are used, it shall be the duty of the parties to meet or 
confer within fifteen (15) days after service of the answer to a 
complaint or after service of the discovery requests in a Commission-
instituted proceeding in order to: establish a schedule for the 
completion of discovery within the 120-day period

[[Page 59]]

prescribed in paragraph (c) of this section; resolve to the fullest 
extent possible disputes relating to discovery matters; and expedite, 
limit, or eliminate discovery by use of admissions, stipulations and 
other techniques. The schedule shall be submitted to the presiding 
officer not later than five (5) days after the conference. Nothing in 
this rule should be construed to preclude the parties from meeting or 
conferring at an earlier date.
    (e) Submission of status reports and requests to alter schedule. The 
parties shall submit a status report concerning their progress under the 
discovery schedule established pursuant to paragraph (d) of this section 
not later than thirty (30) days after submission of such schedule to the 
presiding officer and at 30-day intervals thereafter, concluding on the 
final day of the discovery schedule, unless the presiding officer 
otherwise directs. Requests to alter such schedule beyond the 120-day 
period shall set forth clearly and in detail the reasons why the 
schedule cannot be met. Such requests may be submitted with the status 
reports unless an event occurs which makes adherence to the schedule 
appear to be impossible, in which case the requests shall be submitted 
promptly after occurrence of such event.
    (f) Conferences. The presiding officer may at any time order the 
parties or their attorneys to participate in a conference at which the 
presiding officer may direct the proper use of the procedures of this 
subpart or make such orders as may be necessary to resolve disputes with 
respect to discovery and to prevent delay or undue inconvenience. When a 
reporter is not present and oral rulings are made at a conference held 
pursuant to this paragraph or paragraph (g) of this section, the parties 
shall submit to the presiding officer as soon as possible but within 
three (3) work days, unless the presiding officer grants additional 
time, a joint memorandum setting forth their mutual understanding as to 
each ruling on which they agree and, as to each ruling on which their 
understandings differ, the individual understandings of each party. 
Thereafter, the presiding officer shall issue a written order setting 
forth such rulings.
    (g) Resolution of disputes. After making every reasonable effort to 
resolve discovery disputes, a party may request a conference or rulings 
from the presiding officer on such disputes. Such rulings shall be made 
orally upon the record when feasible and/or by subsequent ruling in 
writing. If necessary to prevent undue delay or otherwise facilitate 
conclusion of the proceeding, the presiding officer may order a hearing 
to commence before the completion of discovery.
    (h) Scope of examination. Persons and parties may be examined 
regarding any matter, not privileged, which is relevant to the subject 
matter involved in the proceeding, whether it relates to the claim or 
defense of the examining party or to the claim or defense of any other 
party, including the existence, description, nature, custody, condition, 
and location of any books, documents, or other tangible things, and the 
identity and location of persons having knowledge of relevant facts. It 
is not ground for objection that the testimony will be inadmissible at 
the hearing if the testimony sought appears reasonably calculated to 
lead to the discovery of admissible evidence.
    (i) Protective orders. (1) Upon motion by a party or by the person 
from whom discovery is sought, and for good cause shown, the presiding 
officer may make any order which justice requires to protect a party or 
person from annoyance, embarrassment, oppression, or undue burden or 
expense including one or more of the following:
    (i) That the discovery not be had;
    (ii) That the discovery may be had only on specified terms and 
conditions including a designation of the time or place;
    (iii) That the discovery may be had only by a method of discovery 
other than that selected by the party seeking discovery;
    (iv) That certain matters not be inquired into, or that the scope of 
the discovery be limited to certain matters;
    (v) That discovery may be conducted with no one present except 
persons designated by the presiding officer;
    (vi) That a deposition after being sealed be opened only by order of 
the presiding officer;

[[Page 60]]

    (vii) That a trade secret or other confidential research, 
development, or commercial information not be disclosed or be disclosed 
only in a designated way;
    (viii) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
presiding officer.
    (2) If the motion for a protective order is denied in whole or in 
part, the presiding officer may, on such terms and conditions as are 
just, order that any party or person provide or permit discovery. 
Rulings under this paragraph shall be issued by the presiding officer at 
a discovery conference called under Sec. 502.201(f) or, if circumstances 
warrant, under such other procedure the presiding officer may establish.
    (j) Supplementation of responses. A party who has responded to a 
request for discovery with a response that was complete when made is 
under no duty to supplement the party's responses to include information 
thereafter acquired, except as follows:
    (1) A party is under a duty seasonably to supplement responses with 
respect to any question directly addressed to (i) the identity and 
location of persons having knowledge of discoverable matters, and (ii) 
the identity of each person expected to be called as an expert witness 
at a hearing, the subject matter on which such person is expected to 
testify, and the substance of the testimony.
    (2) A party is under a duty seasonably to amend a prior response if 
the party obtains information upon the basis of which (i) the party 
knows that the response was incorrect when made, or (ii) the party knows 
that the response though correct when made is no longer true and the 
circumstances are such that a failure to amend the response is in 
substance a knowing concealment.
    (3) A duty to supplement responses may be imposed by order of the 
presiding officer or by agreement of the parties, subject to the time 
limitations set forth in paragraph (c) of this section or established 
under paragraph (e) of this section. [Rule 201.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.202  Persons before whom depositions may be taken.

    (a) Within the United States. Within the United States or within a 
territory or insular possession subject to the jurisdiction of the 
United States, depositions shall be taken before an officer authorized 
to administer oaths under the laws of the United States or of the place 
where the examination is held.
    (b) In foreign countries. In a foreign country, depositions may be 
taken (1) on notice, before a person authorized to administer oaths in 
the place in which the examination is held, either under the law thereof 
or under the law of the United States, or (2) before a person 
commissioned by the Commission, and a person so commissioned shall have 
the power by virtue of his or her commission to administer any necessary 
oath and take testimony, or (3) pursuant to a letter rogatory. A 
commission or a letter rogatory shall be issued on application and 
notice and on terms that are just and appropriate. It is not requisite 
to the issuance of a commission or a letter rogatory that the taking of 
the deposition in any other manner is impracticable or inconvenient; and 
both a commission and a letter rogatory may be issued in proper cases. A 
notice or commission may designate the person before whom the deposition 
is to be taken either by name or descriptive title. A letter rogatory 
may be addressed ``To the Appropriate Authority in [here name the 
country].'' Evidence obtained in response to a letter rogatory need not 
be excluded merely for the reason that it is not a verbatim transcript 
or that the testimony was not taken under oath or for any similar 
departure from the requirements for depositions taken within the United 
States under the rules in this subpart. (See 22 CFR 92.49--92.66.)
    (c) Disqualification for interest. No deposition shall be taken 
before a person who is a relative or employee or attorney or counsel of 
any of the parties, or is a relative or employee of such attorney or 
counsel, or is financially interested in the action.
    (d) Waiver of objection. Objection to taking a deposition because of 
disqualification of the officer before whom it is to be taken is waived 
unless made before the deposition begins or as soon

[[Page 61]]

thereafter as the disqualification becomes known or could be discovered 
with reasonable diligence
    (e) Stipulations. If the parties so stipulate in writing, 
depositions may be taken before any person, at any time or place, upon 
any notice, and in any manner and when so taken may be used like other 
depositions. [Rule 202.]



Sec. 502.203  Depositions upon oral examination.

    (a) Notice of examination. (1) A party desiring to take the 
deposition of any person upon oral examination shall give reasonable 
notice in writing to such person and to every other party to the action, 
pursuant to subpart H of this part. The notice shall state the time and 
place for taking the deposition and the name and address of each person 
to be examined, if known, and, if the name is not known, a general 
description sufficient to identify the person or the particular class or 
group to which the person belongs. The notice shall also contain a 
statement of the matters concerning which each witness will testify.
    (2) The attendance of witnesses may be compelled by subpena as 
provided in subpart I of this part. If a subpena duces tecum is to be 
served on the person to be examined, the designation of the materials to 
be produced as set forth in the subpena shall be attached to or included 
in the notice.
    (3) All errors and irregularities in the notice or subpena for 
taking of a deposition are waived unless written objection is promptly 
served upon the party giving the notice.
    (4) Examination and cross-examination of deponents may proceed as 
permitted at the hearing under the provisions of Sec. 502.154.
    (b) Record of examination; oath; objections. (1) The officer before 
whom the deposition is to be taken shall put the witness on oath and 
shall personally, or by someone acting under the direction and in his or 
her presence, record the testimony of the witness. The testimony shall 
be taken stenographically and transcribed unless the parties agree 
otherwise. All objections made at the time of the examination to the 
qualifications of the officer taking it, or to the evidence presented, 
or to the conduct of any party, and any other objection to the 
proceedings, shall be noted by the officer upon the deposition. Evidence 
objected to shall be taken subject to the objections. Objections shall 
be resolved at a discovery conference called under Sec. 502.201(f) or, 
if circumstances warrant, by such other procedure as the presiding 
officer may establish.
    (2) In lieu of participating in the oral examination, parties served 
with notice of taking a deposition may transmit written interrogatories 
to the officer, who shall propound them to the witness and record the 
answers verbatim.
    (3) The parties may stipulate or the presiding officer may upon 
motion order that a deposition be taken by telephone or other reliable 
device.
    (c) Motion to terminate or limit examination. At any time during the 
taking of the deposition, on motion of any party or of the deponent and 
upon a showing that the examination is being conducted in bad faith or 
in such manner as unreasonably to annoy, embarrass, or oppress the 
deponent or party, the presiding officer may order the officer 
conducting the examination to cease forthwith from taking the 
deposition, or may limit the scope and manner of the taking of the 
deposition as provided in paragraph (b) of this section. If the order 
made terminates the examination, it shall be resumed thereafter only 
upon the order of the presiding officer. Upon demand of the objecting 
party or deponent, the taking of the deposition shall be suspended for 
the time necessary to make a motion for an order. Rulings under this 
paragraph shall be issued by the presiding officer at a discovery 
conference called under Sec. 502.201(f) or, if circumstances warrant, by 
such other procedure as the presiding officer may establish.
    (d) Submission to witness; changes; signing. When the testimony is 
fully transcribed, the deposition shall be submitted to the witness for 
examination and shall be read to or by the witness, unless such 
examination and reading are waived by the witness and by the parties. 
Any changes in form or substance which the witness desires to make shall 
be entered upon the deposition by the officer with a statement of

[[Page 62]]

the reasons given by the witness for making them. The deposition shall 
then be signed by the witness unless the parties by stipulation waive 
the signing or the witness is ill or cannot be found or refuses to sign. 
If the deposition is not signed by the witness, the officer shall sign 
it and state on the record the fact of the waiver or of the illness or 
absence of the witness or the fact of the refusal to sign, together with 
the reason, if any, given therefor, and the deposition may then be used 
as fully as though signed, unless upon objection, the presiding officer 
holds that the reasons given for the refusal to sign require rejection 
of the deposition in whole or in part.
    (e) Certification and filing by officer; copies, notice of filing. 
(1) The officer taking the deposition shall certify on the deposition 
that the witness was duly sworn by the officer and that the deposition 
is a true record of the testimony given by the witness. The officer 
shall then securely seal the deposition in an envelope endorsed with the 
title of the action and marked ``Deposition of [here insert name of 
witness]'' and shall promptly file it with the Secretary of the 
Commission by hand or registered or certified mail.
    (2) Interested parties shall make their own arrangements with the 
officer taking the deposition for copies of the testimony and the 
exhibits.
    (3) The party taking the deposition shall give prompt notice of its 
filing to all other parties.
    (f) Effect of errors and irregularities. Errors and irregularities 
in the manner in which the testimony is transcribed or the deposition is 
prepared, signed, certified, sealed, endorsed, transmitted, filed, or 
otherwise dealt with by the officer under this section and Sec. 502.204 
are waived unless a motion to suppress the deposition or some part 
thereof is made within ten (10) days of filing. [Rule 203.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 58 
FR 27211, May 7, 1993]



Sec. 502.204  Depositions upon written interrogatories.

    (a) Serving interrogatories; notice. A party desiring to take the 
deposition of any person upon written interrogatories shall serve them 
upon every other party pursuant to subpart H of this part with a notice 
stating the name and address of the person who is to answer them and the 
name or descriptive title and address of the officer before whom the 
deposition is to be taken. Within ten (10) days thereafter, a party so 
served may serve cross interrogatories upon the party proposing to take 
the deposition. All errors and irregularities in the notice are waived 
unless written objection is promptly served upon the party giving the 
notice.
    (b) Officer to take responses and prepare record. A copy of the 
notice and copies of all interrogatories served shall be delivered by 
the party taking the deposition to the officer designated in the notice, 
who shall proceed promptly in the manner provided by paragraphs (b), (d) 
and (e) of Sec. 502.203 to take the testimony of the witness in response 
to the interrogatories and to prepare, certify, and file or mail the 
deposition, attaching thereto the copy of the notice and the 
interrogatories received by him or her.
    (c) Notice of filing. When the deposition is filed, the party taking 
it shall promptly give notice thereof to all other parties. [Rule 204.]



Sec. 502.205  Interrogatories to parties.

    (a) Service; answers. (1) Any party may serve, pursuant to subpart H 
of this part, upon any other party written interrogatories to be 
answered by the party served or, if the party served is a public or 
private corporation or a partnership or association, by any officer or 
agent, who shall furnish such information as is available to the party. 
Any party desiring to serve interrogatories as provided by this section 
must comply with the applicable provisions of Sec. 502.201 and make 
service thereof on all parties to the proceeding.
    (2) Each interrogatory shall be answered separately and fully in 
writing under oath, unless it is objected to, in which event the reasons 
for objection shall be stated in lieu of an answer. The answers are to 
be signed by the person making them, and the objections signed by the 
attorney making them.

[[Page 63]]

    (3) The party upon whom the interrogatories have been served shall 
serve a copy of the answers, and objections if any, on all parties to 
the proceeding under the schedule established pursuant to Sec. 502.201. 
The presiding officer, for good cause, may limit service of answers.
    (b) Objections to interrogatories. All objections to interrogatories 
shall be resolved at the conference or meeting provided for under 
Sec. 502.201(f) or, if circumstances warrant, by such other procedure as 
the presiding officer may establish. Written replies to objections to 
interrogatories shall be permitted only to the extent that the discovery 
schedule previously established under Sec. 502.201(d) is not delayed.
    (c) Scope, time, number and use. (1) Interrogatories may relate to 
any matters which can be inquired into under Sec. 502.201(h), and the 
answers may be used to the same extent as provided in Sec. 502.209 for 
the use of the deposition of a party.
    (2) Interrogatories may be sought after interrogatories have been 
answered, but the presiding officer, on motion of the deponent or the 
party interrogated, may make such protective order as justice may 
require.
    (3) The number of interrogatories or of sets of interrogatories to 
be served is not limited except as justice requires to protect the party 
from annoyance, expense, embarrassment, or oppression.
    (4) An interrogatory otherwise proper is not necessarily 
objectionable merely because an answer to the interrogatory involves an 
opinion or contention that relates to fact or the application of law to 
fact, but the presiding officer may order that such an interrogatory 
need not be answered until after designated discovery has been completed 
or until a prehearing conference or other later time.
    (d) Option to produce business records. Where the answer to an 
interrogatory may be derived or ascertained from the business records of 
the party upon whom the interrogatory has been served or from an 
examination, audit or inspection of such business records, or from a 
compilation, abstract or summary based thereon, and the burden of 
deriving or ascertaining the answer is substantially the same for the 
party serving the interrogatory as for the party served, it is a 
sufficient answer to such interrogatory to specify the records from 
which the answer may be derived or ascertained and to afford to the 
party serving the interrogatory reasonable opportunity to examine, audit 
or inspect such records and to make copies, compilations, abstracts or 
summaries. [Rule 205.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.206  Production of documents and things and entry upon land for inspection and other purposes.

    (a) Scope. Any party may serve, pursuant to subpart H of this part, 
on any other party a request (1) to produce and permit the party making 
the request, or someone acting on its behalf, to inspect and copy any 
designated documents (including writings, drawings, graphs, charts, 
photographs, sound or video recordings, and other data compilations from 
which information can be obtained, translated, if necessary, by the 
respondent through detection devices into reasonably usable form), or to 
inspect and copy, test, or sample any tangible things which constitute 
or contain matters within the scope of Sec. 502.203(a) and which are in 
the possession, custody or control of the party upon whom the request is 
served; or (2) to permit entry upon designated land or other property in 
the possession or control of the party upon whom the request is served 
for the purpose of inspection and measuring, surveying, photographing, 
testing, or sampling the property of any designated object or operation 
thereon, within the scope of Sec. 502.203(a).
    (b) Procedure. The request shall set forth the items to be inspected 
either by individual item or by category, and describe each item and 
category with reasonable particularity. The request shall specify a 
reasonable time, place, and manner of making the inspection and 
performing the related acts. Responses shall be served under the 
schedule established pursuant to Sec. 502.201. The response shall state, 
with respect to each item or category, that inspection and related 
activities will be permitted as requested, unless the request is 
objected to, in which event

[[Page 64]]

the reasons for objection shall be stated. Objections to requests for 
production of documents shall be resolved at the conference or meeting 
required under Sec. 502.201(f) or, if circumstances warrant, by such 
other procedure as the presiding officer may establish. Written replies 
to objections to requests for production of documents shall be permitted 
only to the extent that the discovery schedule previously established 
under Sec. 502.201(d) is not delayed. [Rule 206.]



Sec. 502.207  Requests for admission.

    (a)(1) A party may serve, pursuant to subpart H of this part, upon 
any other party a written request for the admission, for purposes of the 
pending action only, of the truth of any matters within the scope of 
Sec. 502.203(a) set forth in the request that relate to statements or 
opinions of fact or of the application of law to fact, including the 
genuineness of any documents described in the request. Copies of 
documents shall be served with the request unless they have been or are 
otherwise furnished or made available for inspection and copying. Any 
party desiring to serve a request as provided by this section must 
comply with the applicable provisions of Sec. 502.201.
    (2)(i) Each matter of which an admission is requested shall be 
separately set forth.
    (ii) The matter is admitted unless, within thirty (30) days after 
service of the request, or within such shorter or longer time as the 
presiding officer may allow pursuant to Sec. 502.201, the party to whom 
the request is directed serves upon the party requesting the admission a 
written answer or objection addressed to the matter, signed by the party 
or the party's attorney. If objection is made, the reasons therefor 
shall be stated. The answer shall specifically deny the matter or set 
forth in detail the reasons why the answering party cannot truthfully 
admit or deny the matter. A denial shall fairly meet the substance of 
the requested admission, and when good faith requires that a party 
qualify the answer or deny only a part of the matter of which an 
admission is requested, the party shall specify so much of it as is true 
and qualify or deny the remainder.
    (iii) An answering party may not give lack of information or 
knowledge as a reason for failure to admit or deny unless the party 
states that reasonable inquiry has been made and that the information 
known or readily obtainable is insufficient to enable the party to admit 
or deny. A party who considers that a matter of which an admission has 
been requested presents a genuine issue for trial may not, on that 
ground alone, object to the request; a party may, subject to the 
provisions of Sec. 502.207(c) deny the matter or set forth reasons why 
it cannot be admitted or denied.
    (3) The party who has requested admissions may request rulings on 
the sufficiency of the answers or objections. Rulings on such requests 
shall be issued at a conference called under Sec. 502.201(f) or, if 
circumstances warrant, by such other procedure as the presiding officer 
may establish. Unless the presiding officer determines that an objection 
is justified, the presiding officer shall order that an answer be 
served. If the presiding officer determines that an answer does not 
comply with the requirements of this rule, the presiding officer may 
order either that the matter is admitted or that an amended answer be 
served. The presiding officer may, in lieu of these orders, determine 
that final disposition of the request be made at a prehearing conference 
or at a designated time prior to hearing.
    (b) Effect of admission. Any matter admitted under this rule is 
conclusively established unless the presiding officer on motion permits 
withdrawal or amendment when the presentation of the merits of the 
action will be subserved thereby and the party who obtained the 
admission fails to satisfy the presiding officer that withdrawal or 
amendment will be prejudicial in maintaining the party's action or 
defense on the merits. Any admission made by a party under this rule is 
for the purpose of the pending proceeding only and is not an admission 
for any other purpose, nor may it be used against the party in any other 
proceeding.
    (c) Expenses on failure to admit. If a party fails to admit the 
genuineness of

[[Page 65]]

any document or the truth of any matter as requested under paragraph (a) 
of this section, and if the party requesting the admission thereafter 
proves the genuineness of the document or the truth of the matter, that 
party may apply to the presiding officer for an order requiring the 
other party to pay the reasonable expenses incurred in making that 
proof, including reasonable attorney's fees. Such application must be 
made to the presiding officer before issuance of the initial decision in 
the proceeding. The presiding officer shall make the order unless it is 
found that:
    (1) The request was held objectionable pursuant to paragraph (a) of 
this section, or
    (2) The admission sought was of no substantial importance, or
    (3) The party failing to admit had reasonable ground to believe that 
it might prevail on the matter, or
    (4) There was other good reason for the failure to admit. [Rule 
207.]



Sec. 502.208  Use of discovery procedures directed to Commission staff personnel.

    (a) Discovery procedures described in Secs. 502.202, 502.203, 
502.204, 502.205, 502.206, and 502.207, directed to Commission staff 
personnel shall be permitted and shall be governed by the procedures set 
forth in those sections except as modified by paragraphs (b) and (c) of 
this section. All notices to take depositions, written interrogatories, 
requests for production of documents and other things, requests for 
admissions, and any motions in connection with the foregoing, shall be 
served on the Secretary of the Commission.
    (b) The General Counsel shall designate an attorney to represent any 
Commission staff personnel to whom any discovery requests or motions are 
directed. The attorney so designated shall not thereafter participate in 
the Commission's decision-making process concerning any issue in the 
proceeding.
    (c) Rulings of the presiding officer issued under paragraph (a) of 
this section shall become final rulings of the Commission unless an 
appeal is filed within ten (10) days after date of issuance of such 
rulings or unless the Commission on its own motion reverses, modifies, 
or stays such rulings within twenty (20) days of their issuance. Replies 
to appeals may be filed within ten (10) days. No motion for leave to 
appeal is necessary in such instances and no ruling of the presiding 
officer shall be effective until twenty (20) days from date of issuance 
unless the Commission otherwise directs. [Rule 208.]



Sec. 502.209  Use of depositions at hearings.

    (a) General. At the hearing, any part or all of a deposition, so far 
as admissible under the rules of evidence, may be used against any party 
who was present or represented at the taking of the deposition or who 
had due notice thereof in accordance with any one of the following 
provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of deponent as a witness.
    (2) The deposition of a party or of anyone who at the time of taking 
the deposition was an officer, director, or duly authorized agent of a 
public or private corporation, partnership, or association which is a 
party, may be used by any other party for any purpose.
    (3) The deposition of a witness, whether or not a party, may be used 
by any party for any purpose if the presiding officer finds:
    (i) That the witness is dead; or
    (ii) That the witness is out of the United States unless it appears 
that the absence of the witness was procured by the party offering the 
depositions; or
    (iii) That the witness is unable to attend or testify because of 
age, sickness, infirmity, or imprisonment; or
    (iv) That the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or
    (v) Upon application and notice, that such exceptional circumstances 
exist as to make it desirable, in the interest of justice and with due 
regard to the importance of presenting the testimony of witnesses orally 
in open hearing, to allow the deposition to be used.
    (4) If only part of a deposition is offered in evidence by a party, 
any other party may require introduction of all

[[Page 66]]

of it which is relevant to the part introduced, and any party may 
introduce any other parts.
    (5) Substitution of parties does not affect the right to use 
depositions previously taken; and, when a proceeding in any hearing has 
been dismissed and another proceeding involving the same subject matter 
is afterward brought between the same parties or their representatives 
or successors in interest, all depositions lawfully taken and duly filed 
in the former proceeding may be used in the latter as if originally 
taken therefor.
    (b) Objections to admissibility. (1) Except as otherwise provided in 
this paragraph, objection may be made at the hearing to receiving in 
evidence any deposition or part thereof for any reason which would 
require the exclusion of the evidence if the witness were then present 
and testifying.
    (2) Objections to the competency of a witness or to the competency, 
relevancy, or materiality of testimony are not waived by failure to make 
them before or during the taking of the deposition, unless the ground of 
the objection is one which might have been obviated or removed if 
presented at the time.
    (3) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers, in the oath or affirmation, or in the conduct of parties and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless reasonable objection thereto is 
made at the taking of the deposition.
    (4) Objections to the form of written interrogatories submitted 
under Sec. 502.204 are waived unless served in writing upon the party 
propounding them within the time allowed for serving the succeeding 
cross interrogatories.
    (c) Effect of taking or using depositions. A party shall not be 
deemed to make a person its own witness for any purpose by taking such 
person's deposition. The introduction in evidence of the deposition or 
any part thereof for any purpose other than that of contradicting or 
impeaching the deponent makes the deponent the witness of the party 
introducing the deposition, but this shall not apply to the use by any 
other party of a deposition as described in paragraph (a)(3) of this 
section. At the hearing, any party may rebut any relevent evidence 
contained in a deposition whether introduced by it or by any other 
party. [Rule 209.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.210  Refusal to comply with orders to answer or produce documents; sanctions; enforcement.

    (a) Sanctions for failure to comply with order. If a party or an 
officer or duly authorized agent of a party refuses to obey an order 
requiring such party to answer designated questions or to produce any 
document or other thing for inspection, copying or photographing or to 
permit it to be done, the presiding officer may make such orders in 
regard to the refusal as are just, and among others, the following:
    (1) An order that the matters regarding which the order was made or 
any other designated facts shall be taken to be established for the 
purposes of the action in accordance with the claim of the party 
obtaining the order;
    (2) An order refusing to allow the disobedient party to support or 
oppose designated claims or defenses, or prohibiting the disobedient 
party from introducing designated matters in evidence or an order that 
with respect to matters regarding which the order was made or any other 
designated fact, inferences will be drawn adverse to the person or party 
refusing to obey such order;
    (3) An order striking out pleadings or parts thereof, or staying 
further proceedings until the order is obeyed, or dismissing the action 
or proceeding or any party thereto, or rendering a judgement by default 
against the disobedient party.
    (b) Enforcement of orders and subpenas. In the event of refusal to 
obey an order or failure to comply with a subpena, the Attorney General 
at the request of the Commission, or any party injured thereby may seek 
enforcement by a United States district court having jurisdiction over 
the parties. Any action with respect to enforcement of subpenas or 
orders relating to depositions,

[[Page 67]]

written interrogatories, or other discovery matters shall be taken 
within twenty (20) days of the date of refusal to obey or failure to 
comply. A private party shall advise the Commission five (5) days 
(excluding Saturdays, Sundays and legal holidays) before applying to the 
court of its intent to seek enforcement of such supenas and discovery 
orders.
    (c) Persons and documents located in a foreign country. Orders of 
the presiding officer directed to persons or documents located in a 
foreign country shall become final orders of the Commission unless an 
appeal to the Commission is filed within ten (10) days after date of 
issuance of such orders or unless the Commission on its own motion 
reverses, modifies, or stays such rulings within twenty (20) days of 
their issuance. Replies to appeals may be filed within ten (10) days. No 
motion for leave to appeal is necessary in such instances and no orders 
of the presiding officer shall be effective until twenty (20) days from 
date of issuance unless the Commission otherwise directs. [Rule 210.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



     Subpart M--Briefs; Requests for Findings; Decisions; Exceptions



Sec. 502.221  Briefs; requests for findings.

    (a) The presiding officer shall fix the time and manner of filing 
briefs and any enlargement of time. The period of time allowed shall be 
the same for all parties unless the presiding officer, for good cause 
shown, directs otherwise.
    (b) Briefs shall be served upon all parties pursuant to subpart H of 
this part.
    (c) In investigations instituted on the Commission's own motion, the 
presiding officer may require the Bureau of Enforcement to file a 
request for findings of fact and conclusions within a reasonable time 
prior to the filing of briefs. Service of the request shall be in 
accordance with the provisions of subpart H of this part.
    (d) Unless otherwise ordered by the presiding officer, opening or 
initial briefs shall contain the following matters in separately 
captioned sections: (1) Introductory section describing the nature and 
background of the case, (2) proposed findings of fact in serially 
numbered paragraphs with reference to exhibit numbers and pages of the 
transcript, (3) argument based upon principles of law with appropriate 
citations of the authorities relied upon, and (4) conclusions.
    (e) All briefs shall contain a subject index or table of contents 
with page references and a list of authorities cited.
    (f) The presiding officer may limit the number of pages to be 
contained in a brief. [Rule 221.]

[49 FR 44369, Nov. 6, 1984, as amended at 61 FR 51233, Oct. 1, 1996]



Sec. 502.222  Requests for enlargement of time for filing briefs.

    Requests for enlargement of time within which to file briefs shall 
conform to the requirements of Sec. 502.102. Except for good cause 
shown, such requests shall be filed and served pursuant to subpart H of 
this part not later than five (5) days before the expiration of the time 
fixed for the filing of the briefs. [Rule 222.]



Sec. 502.223  Decisions--administrative law judges.

    To the administrative law judges is delegated the authority to make 
and serve initial or recommended decisions. [Rule 223.]



Sec. 502.224  Separation of functions.

    The separation of functions as required by 5 U.S.C. 554(d) shall be 
observed in proceedings under subparts A to Q inclusive, of this part. 
[Rule 224.]



Sec. 502.225  Decisions--contents and service.

    All initial, recommended, and final decisions will include a 
statement of findings and conclusions, as well as the reasons or basis 
therefor, upon all the material issues of fact, law, or discretion 
presented on the record, and the appropriate rule, order, sanction, 
relief, or denial thereof. A copy of each decision when issued shall be 
served on the parties to the proceeding. In proceedings involving 
overcharge claims, the presiding officer may, where appropriate, require 
that the carrier publish

[[Page 68]]

notice in its tariff of the substance of the decision. This provision 
shall also apply to decisions issued pursuant to subpart T of this part. 
[Rule 225.]



Sec. 502.226  Decision based on official notice; public documents.

    (a) Official notice may be taken of such matters as might be 
judicially noticed by the courts, or of technical or scientific facts 
within the general knowledge of the Commission as an expert body, 
provided, that where a decision or part thereof rests on the official 
notice of a material fact not appearing in the evidence in the record, 
the fact of official notice shall be so stated in the decision, and any 
party, upon timely request, shall be afforded an opportunity to show the 
contrary.
    (b) Whenever there is offered in evidence (in whole or in part) a 
public document, such as an official report, decision, opinion, or 
published scientific or economic statistical data issued by any of the 
executive departments (or their subdivisions), legislative agencies or 
committees, or administrative agencies of the Federal Government 
(including Government-owned corporations), or a similar document issued 
by a state or its agencies, and such document (or part thereof) has been 
shown by the offeror to be reasonably available to the public, such 
document need not be produced or marked for identification, but may be 
offered in evidence as a public document by specifying the document or 
relevant part thereof. [Rule 226.]



Sec. 502.227  Exceptions to decisions or orders of dismissal of administrative law judges; replies thereto; and review of decisions or orders of dismissal by 
          Commission.

    (a)(1) Within twenty-two (22) days after date of service of the 
initial decision, unless a shorter period is fixed under Sec. 502.103, 
any party may file a memorandum excepting to any conclusions, findings, 
or statements contained in such decision, and a brief in support of such 
memorandum. Such exceptions and brief shall constitute one document, 
shall indicate with particularity alleged errors, shall indicate 
transcript page and exhibit number when referring to the record, and 
shall be served on all parties pursuant to subpart H of this part.
    (2) Any adverse party may file and serve a reply to such exceptions 
within twenty-two (22) days after the date of service thereof, which 
shall contain appropriate transcript and exhibit references.
    (3) Whenever the officer who presided at the reception of the 
evidence, or other qualified officer, makes an initial decision, such 
decision shall become the decision of the Commission thirty (30) days 
after date of service thereof (and the Secretary shall so notify the 
parties), unless within such 30-day period, or greater time as enlarged 
by the Commission for good cause shown, request for review is made in 
exceptions filed or a determination to review is made by the Commission 
on its own initiative.
    (4) Upon the filing of exceptions to, or review of, an initial 
decision, such decision shall become inoperative until the Commission 
determines the matter.
    (5) Where exceptions are filed to, or the Commission reviews, an 
initial decision, the Commission, except as it may limit the issues upon 
notice or by rule, will have all the powers which it would have in 
making the initial decision. Whenever the Commission shall determine to 
review an initial decision on its own initiative, notice of such 
intention shall be served upon the parties.
    (6) The time periods for filing exceptions and replies to 
exceptions, prescribed by this section, shall not apply to proceedings 
conducted under Sec. 502.75.
    (b)(1) If an administrative law judge has granted a motion for 
dismissal of the proceeding in whole or in part, any party desiring to 
appeal must file such appeal no later than twenty-two (22) days after 
service of the ruling on the motion in question.
    (2) Any adverse party may file and serve a reply to an appeal under 
this paragraph within twenty-two (22) days after the appeal is served.
    (3) The denial of a petition to intervene or withdrawal of a grant 
of intervention shall be deemed to be a dismissal within the meaning of 
this paragraph.

[[Page 69]]

    (c) Whenever an administrative law judge orders dismissal of a 
proceeding in whole or in part, such order, in the absence of appeal, 
shall become the order of the Commission thirty (30) days after date of 
service of such order (and the Secretary shall so notify the parties), 
unless within such 30-day period the Commission decides to review such 
order on its own motion, in which case notice of such intention shall be 
served upon the parties.
    (d) The Commission shall not, on its own initiative, review any 
initial decision or order of dismissal unless such review is requested 
by an individual Commissioner. Any such request must be transmitted to 
the Secretary within thirty (30) days after date of service of the 
decision or order. Such request shall be sufficient to bring the matter 
before the Commission for review. [Rule 227.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27211, May 7, 1993; 61 
FR 66617, Dec. 18, 1996]



Sec. 502.228  Request for enlargement of time for filing exceptions and replies thereto.

    Requests for enlargement of time within which to file exceptions, 
and briefs in support thereof, or replies to exceptions shall conform to 
the applicable provisions of Sec. 502.102. Requests for extensions of 
these periods will be granted only under exceptional circumstances duly 
demonstrated in the request. Except for good cause shown, such requests 
shall be filed and served not later than five (5) days before the 
expiration of the time fixed for the filing of such documents. Any 
enlargement of time granted will automatically extend by the same period 
the date for the filing of notice or review by the Commission. [Rule 
228.]



Sec. 502.229  Certification of record by presiding or other officer.

    The presiding or other officer shall certify and transmit the entire 
record to the Commission when (a) exceptions are filed or the time 
therefor has expired, (b) notice is given by the Commission that the 
initial decision will be reviewed on its own initiative, or (c) the 
Commission requires the case to be certified to it for initial decision. 
[Rule 229.]



Sec. 502.230  Reopening by presiding officer or Commission.

    (a) Motion to reopen. At any time after the conclusion of a hearing 
in a proceeding, but before issuance by the presiding officer of a 
recommended or initial decision, any party to the proceeding may file 
with the presiding officer a motion to reopen the proceeding for the 
purpose of receiving additional evidence. A motion to reopen shall be 
served in conformity with the requirements of subpart H and shall set 
forth the grounds requiring reopening of the proceeding, including 
material changes of fact or of law alleged to have occurred since the 
conclusion of the hearing.
    (b) Reply. Within ten (10) days following service of a motion to 
reopen, any party may reply to such motion.
    (c) Reopening by presiding officer. At any time prior to filing his 
or her decision, the presiding officer upon his or her own motion may 
reopen a proceeding for the reception of further evidence.
    (d) Reopening by the Commission. Where a decision has been issued by 
the presiding officer or where a decision by the presiding officer has 
been omitted, but before issuance of a Commission decision, the 
Commission may, after petition and reply in conformity with paragraphs 
(a) and (b) of this section, or upon its own motion, reopen a proceeding 
for the purpose of taking further evidence.
    (e) Remand by the Commission. Nothing contained in this rule shall 
preclude the Commission from remanding a proceeding to the presiding 
officer for the taking of additional evidence or determining points of 
law. [Rule 230.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



         Subpart N--Oral Argument; Submission for Final Decision



Sec. 502.241  Oral argument.

    (a) The Commission may hear oral argument either on its own motion 
or upon the written request of a party. If oral argument before the 
Commission

[[Page 70]]

is desired on exceptions to an initial or recommended decision, or on a 
motion, petition, or application, a request therefor shall be made in 
writing. Any party may make such a request irrespective of its filing 
exceptions under Sec. 502.227. If a brief on exceptions is filed, the 
request for oral argument shall be incorporated in such brief. Requests 
for oral argument on any motion, petition, or application shall be made 
in the motion, petition, or application, or in the reply thereto. If the 
Commission determines to hear oral argument, a notice will be issued 
setting forth the order of presentation and the amount of time allotted 
to each party.
    (b)(1) Requests for oral argument will be granted or denied in the 
discretion of the Commission.
    (2) Parties requesting oral argument shall set forth the specific 
issues they propose to address at oral argument.
    (c) Those who appear before the Commission for oral argument shall 
confine their argument to points of controlling importance raised on 
exceptions or replies thereto. Where the facts of a case are adequately 
and accurately dealt with in the initial or recommended decision, 
parties should, as far as possible, address themselves in argument to 
the conclusions.
    (d) Effort should be made by parties taking the same position to 
agree in advance of the argument upon those persons who are to present 
their side of the case, and the names of such persons and the amount of 
time requested should be received by the Commission not later than ten 
(10) days before the date set for the argument. The fewer the number of 
persons making the argument the more effectively can the parties' 
interests be presented in the time allotted. [Rule 241.]

[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4144, Feb. 10, 1987]



Sec. 502.242  Submission to Commission for final decision.

    A proceeding will be deemed submitted to the Commission for final 
decision as follows: (a) If oral argument is had, the date of completion 
thereof, or if memoranda on points of law are permitted to be filed 
after argument, the last date of such filing; (b) if oral argument is 
not had, the last date when exceptions or replies thereto are filed, or 
if exceptions are not filed, the expiration date for such exceptions; 
(c) in the case of an initial decision, the date of notice of the 
Commission's intention to review the decision, if such notice is given. 
[Rule 242.]



Sec. 502.243  Participation of absent Commissioner.

    Any Commissioner who is not present at oral argument and who is 
otherwise authorized to participate in a decision shall participate in 
making that decision after reading the transcript of oral argument 
unless he or she files in writing an election not to participate. [Rule 
243.]



                          Subpart O--Reparation



Sec. 502.251  Proof on award of reparation.

    If many shipments or points of origin or destination are involved in 
a proceeding in which reparation is sought (See Sec. 502.63), the 
Commission will determine in its decision the issues as to violations, 
injury to complainant, and right to reparation. If complainant is found 
entitled to reparation, the parties thereafter will be given an 
opportunity to agree or make proof respecting the shipments and 
pecuniary amount of reparation due before the order of the Commission 
awarding reparation is entered. In such cases, freight bills and other 
exhibits bearing on the details of all shipments, and the amount of 
reparation on each, need not be produced at the original hearing unless 
called for or needed to develop other pertinent facts. [Rule 251.]



Sec. 502.252  Reparation statements.

    When the Commission finds that reparation is due, but that the 
amount cannot be ascertained upon the record before it, the complainant 
shall immediately prepare a statement in accordance with the approved 
reparation statement in Exhibit No. 1 to this subpart, showing details 
of the shipments on which reparation is claimed. This statement shall 
not include any shipments not covered by the findings of the Commission. 
Complainant shall forward the statement, together with the paid freight 
bills on the shipments,

[[Page 71]]

or true copies thereof, to the respondent or other person who collected 
the charges for checking and certification as to accuracy. Statements so 
prepared and certified shall be filed with the Commission for 
consideration in determining the amount of reparation due. Disputes 
concerning the accuracy of amounts may be assigned for conference by the 
Commission, or in its discretion referred for further hearing. [Rule 
252.]



Sec. 502.253  Inerest in reparation proceedings.

    Except as to applications for refund or waiver of freight charges 
under Sec. 502.92 and claims which are settled by agreement of the 
parties, and absent fraud or misconduct of a party, interest granted on 
awards of reparation in complaint proceedings instituted under the 
Shipping Act of 1984, the Shipping Act, 1916, and the Intercoastal 
Shipping Act, 1933, will accrue from the date of injury to the date 
specified in the Commission order awarding reparation. Compounding will 
be daily from the date of injury to the date specified in the Commission 
order awarding reparation. Normally, the date specified within which 
payment must be made will be fifteen (15) days subsequent to the date of 
service of the Commission order.
    (a) On awards of reparation granted under the Shipping Act of 1984, 
or the Shipping Act, 1916, interest shall be computed on the basis of 
the average monthly secondary market rate on six-month U.S.Treasury 
bills commencing with the rate for the month that the injury occurred 
and concluding with the latest available monthly U.S. Treasury bill rate 
at the date of the Commission order awarding reparation. The monthly 
secondary market rates on six-month U.S. Treasury bills for the 
reparation period will be summed up and divided by the number of months 
for which interest rates are available in the reparation period to 
determine the average interest rate applicable during the period.
    (b) On refunds ordered under section 3(c)(2) and awards of 
reparation granted under section 4 of the Intercoastal Shipping Act, 
1933 interest shall be computed on the basis of the average of the prime 
rate charged by major banks, as published by the Board of Governors of 
the Federal Reserve System during the period to which the reparation 
applies. (Rule 253.)


[56 FR 47001, Sept. 17, 1991]



Sec. 502.254  Attorney's fees in reparation proceedings.

    (a) Scope. Except for proceedings under subpart S of this part, the 
Commission shall, upon petition, award the complainant reasonable 
attorney's fees directly related to obtaining a reparations award in any 
complaint proceeding under section 11 of the Shipping Act of 1984. For 
purposes of this section, ``attorney's fees'' includes the fair market 
value of the services of any person permitted to appear and practice 
before the Commission in accordance with subpart B of this part, and may 
include compensation for services rendered the complainant in a related 
proceeding in Federal court that is useful and necessary to the 
determination of a reparations award in the complaint proceeding.
    (b) Content of petitions. Petitons for attorney's fees under this 
section shall specify the number of hours claimed by each person 
representing the complainant at each identifiable stage of the 
proceeding, and shall be supported by evidence of the reasonableness of 
hours claimed and the customary fees charged by attorneys and associated 
legal representative in the community where the petitioner practices. 
Requests for additional compensation must be supported by evidence that 
the customary fees for the hours reasonably expended on the case would 
result in an unreasonable fee award.
    (c) Filing of petition. (1) Petitions for attorney's fees shall be 
filed within 30 days of a final reparation award:
    (i) With the presiding officer where the presiding officer's 
decision awarding reparations became administratively final pursuant to 
Sec. 502.227(a)(3) of this part; or
    (ii) With the Commission, if exceptions were filed to, or the 
Commission reviewed, the presiding officer's reparation award decision 
pursuant to Sec. 502.227 of this part.

[[Page 72]]

    (2) For purposes of this section, a reparation award shall be 
considered final after a decision disposing of the merits of a complaint 
is issued and the time for the filing of court appeals has run or after 
a court appeal has terminated.
    (d) Replies to petitions. Within 20 days of filing of the petition, 
a reply to the petition may be filed by the respondent, addressing the 
reasonableness of any aspect of the petitioner's claim. A respondent may 
also suggest adjustments to the claim under the criteria stated in 
paragraph (b) of this section.
    (e) Ruling on petitions. Upon consideration of a petition and any 
reply thereto, the Commission or the presiding officer shall issue an 
order stating the total amount of attorney's fees awarded. The order 
shall specify the hours and rate of compensation found awardable and 
shall explain the basis for any additional adjustments. An award order 
shall be served within 60 days of the date of the filing of the reply to 
the petition or expiration of the reply period; except that in cases 
involving a substantial dispute of facts critical to the award 
determination, the Commission or presiding officer may hold a hearing on 
such issues and extend the time for issuing a fee award order by an 
additional 30 days. The Commission or the presiding officer may adopt a 
stipulated settlement of attorney's fees.
    (f) In cases where the presiding officer issues an award order, 
appeal of that order and Commission review of that order in the absence 
of appeal shall be governed by the procedures of Sec. 502.227 of this 
part. [Rule 254.]

[52 FR 6331, Mar. 3, 1987, as amended at 58 FR 27211, May 7, 1993]

[[Page 73]]



                       Pt. 502, Exhibit No. 1 to Subpart O [Sec.  502.252]--Reparation Statement To Be Filed Pursuant to Rule 252
                 Claim of -------------------- under the decision of the Federal Maritime Commission in Docket No. --------------------.
--------------------------------------------------------------------------------------------------------------------------------------------------------
          Date of                                                                                      As charged       Should be
          delivery    Date                       Port                                               --------------------------------             Charges
Date of  or tender   charges   Vessel   Voyage    of    Destination   Route  Commodity   Weight or                                   Reparation  paid by
  B/L        of       paid               No.    origin      port                        measurement   Rate   Amount   Rate   Amount                 *
          delivery
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Here insert name of person paying charges in the first instance, and state whether as consignor, consignee, or in what other capacity.

Pt. 502, Subpt O, Exh. I

Total amount of reparation $----------------------------------------.
 
  The undersigned hereby certifies that this statement has been checked against the records of this company
   and found correct.
 
  Date ----------------------------------------.
 
---------------------------------------- Steamship Company, Collecting Carrier Respondent,
 
By ----------------------------------------, Auditor
 
By ----------------------------------------, Claimant
 
----------------------------------------, Attorney
 
(address and date)
 


[[Page 74]]



                Subpart P--Reconsideration of Proceedings



Sec. 502.261  Petitions for reconsideration and stay.

    (a) Within thirty (30) days after issuance of a final decision or 
order by the Commission, any party may file a petition for 
reconsideration. Such petition shall be limited to 25 pages in length 
and shall be served in conformity with the requirements of subpart H of 
this part. 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.
    (b) A petition for stay of a Commission order which directs the 
discontinuance of statutory violations will not be received.
    (c) The provisions of this section are not applicable to decisions 
issued pursuant to subpart S of this part. [Rule 261.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27211, May 7, 1993]



Sec. 502.262  Reply to petition for reconsideration or stay.

    Any party may file a reply in opposition to a petition for 
reconsideration or stay within fifteen (15) days after the date of 
service of the petition in accordance with Sec. 502.74. The reply shall 
be limited to 25 pages in length and shall be served in conformity with 
subpart H of this part. [Rule 262.]

[58 FR 27211, May 7, 1993]



                     Subpart Q--Schedules and Forms



Sec. 502.271  Schedule of information for presentation in regulatory cases.

    The following approved forms and illustrative wording for use in 
Commission proceedings appear in this part as follows:
    (a) Notice of appearance. Exhibit No. 1 to Subpart B (following 
Sec. 502.32).
    (b)  [Reserved]
    (c) Complaint. Exhibit No. 1 to Subpart E (following Sec. 502.75).
    (d) Verification. See complaint form in Exhibit No. 1 to Subpart E 
(following Sec. 502.75).
    (e) Answer to complaint. Exhibit No. 2 to Subpart E (following 
Sec. 502.75).
    (f) Petition for leave to intevene. Exhibit No. 3 to Subpart E 
(following Sec. 502.75).
    (g) Special docket application. Exhibit No. 1 to Subpart F 
(following Sec. 502.95).
    (h) Certificate of service. Sec. 502.117 (Subpart H). See also 
Sec. 502.320 for small claims.
    (i) Reparation statement. Where the Commission finds reparation is 
due but that the amount cannot be ascertained: Exhibit No. 1 to Subpart 
O (following Sec. 502.253).
    (j) Small claim form for informal adjudication. Exhibit No. 1 to 
Subpart S (following Sec. 502.305).
    (k) Respondent's consent form for informal adjudication. Exhibit No. 
2 to Subpart S (following Sec. 502.305). [Rule 271.]

[49 FR 44369, Nov. 6, 1984, as amended at 61 FR 66617, Dec. 18, 1996]



                Subpart R--Nonadjudicatory Investigations



Sec. 502.281  Investigational policy.

    The Commission has extensive regulatory duties under the various 
acts it is charged with administering. The conduct of investigations is 
essential to the proper exercise of the Commission's regulatory duties. 
It is the purpose of this subpart to establish procedures for the 
conduct of such investigations which will insure protection of the 
public interest in the proper and effective administration of the law. 
The Commission encourages voluntary cooperation in its investigations 
where such can be effected without delay or

[[Page 75]]

without prejudice to the public interest. The Commission may, in any 
matter under investigation, invoke any or all of the compulsory 
processes authorized by law. [Rule 281.]



Sec. 502.282  Initiation of investigations.

    Commission inquiries and nonadjudicatory investigations are 
originated by the Commission upon its own motion when in its discretion 
the Commission determines that information is required for the purposes 
of rulemaking or is necessary or helpful in the determination of its 
policies or the carrying out of its duties, including whether to 
institute formal proceedings directed toward determining whether any of 
the laws which the Commission administers have been violated. [Rule 
282.]



Sec. 502.283  Order of investigation.

    When the Commission has determined that an investigation is 
necessary, an Order of Investigation shall be issued. [Rule 283.]



Sec. 502.284  By whom conducted.

    Investigations are conducted by Commission representatives 
designated and duly authorized for the purpose. (See Sec. 502.25.) Such 
representatives are authorized to exercise the duties of their office in 
accordance with the laws of the United States and the regulations of the 
Commission, including the resort to all compulsory processes authorized 
by law, and the administration of oaths and affirmances in any matters 
under investigation by the Commission. [Rule 284.]



Sec. 502.285  Investigational hearings.

    (a) Investigational hearings, as distinguished from hearings in 
adjudicatory proceedings, may be conducted in the course of any 
investigation undertaken by the Commission, including inquiries 
initiated for the purpose of determining whether or not a person is 
complying with an order of the Commission.
    (b) Investigational hearings may be held before the Commission, one 
or more of its members, or a duly designated representative, for the 
purpose of hearing the testimony of witnesses and receiving documents 
and other data relating to any subject under investigation. Such 
hearings shall be stenographically reported and a transcript thereof 
shall be made a part of the record of investigation. [Rule 285.]



Sec. 502.286  Compulsory process.

    The Commission, or its designated representative may issue orders or 
subpenas directing the person named therein to appear before a 
designated representative at a designated time and place to testify or 
to produce documentary evidence relating to any matter under 
investigation, or both. Such orders and subpenas shall be served in the 
manner provided in Sec. 502.134. [Rule 286.]



Sec. 502.287  Depositions.

    The Commission, or its duly authorized representative, may order 
testimony to be taken by deposition in any investigation at any stage of 
such investigation. Such depositions may be taken before any person 
designated by the Commission having the power to administer oaths. Such 
testimony shall be reduced to writing by the person taking the 
deposition or under his or her direction, and shall then be subscribed 
by the deponent. Any person may be compelled to appear and be deposed 
and to produce evidence in the same manner as witnesses may be compelled 
to appear and testify and produce documentary evidence as provided in 
Sec. 502.131. [Rule 287.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.288  Reports.

    The Commission may issue an order requiring a person to file a 
report or answers in writing to specific questions relating to any 
matter under investigation. [Rule 288.]



Sec. 502.289  Noncompliance with investigational process.

    In case of failure to comply with Commission investigational 
processes, appropriate action may be initiated by the Commission, 
including actions for enforcement by the Commission or the Attorney 
General and forfeiture of penalties or criminal actions by the Attorney 
General. [Rule 289.]

[[Page 76]]



Sec. 502.290  Rights of witness.

    Any person required to testify or to submit documentary evidence 
shall be entitled to retain or, on payment of lawfully prescribed cost, 
procure a copy of any document produced by such person and of his or her 
own testimony as stenographically reported or, in the depositions, as 
reduced to writing by or under the direction of the person taking the 
deposition. Any party compelled to testify or to produce documentary 
evidence may be accompanied and advised by counsel, but counsel may not, 
as a matter or right, otherwise participate in the investigation. [Rule 
290.]



Sec. 502.291  Nonpublic proceedings.

    Unless otherwise ordered by the Commission, all investigatory 
proceedings shall be nonpublic. [Rule 291.]



     Subpart S--Informal Procedure for Adjudication of Small Claims



Sec. 502.301  Statement of policy.

    (a) Section 11(a) of the Shipping Act of 1984 permits any person to 
file a complaint with the Commission claiming a violation occurring in 
connection with the foreign commerce of the United States and to seek 
reparation for any injury caused by that violation.
    (b) Section 22 of the Shipping Act, 1916, permits any person to file 
a complaint against any common carrier by water in interstate and 
offshore domestic commerce or against any other person subject to the 
Shipping Act, 1916, or the Intercoastal Shipping Act, 1933, claiming a 
violation of those statutes and to seek reparation for that violation.
    (c) With the consent of both parties, claims filed under this 
subpart in the amount of $10,000 or less will be referred to the 
Commission's Informal Dockets Activity for adjudication and decision by 
its Settlement Officers without the necessity of formal proceedings 
under the rules of this part.
    (d) Determination of claims under this subpart shall be 
administratively final and conclusive. [Rule 301.]



Sec. 502.302  Limitations of actions.

    (a) Claims alleging violations of the Shipping Act of 1984 must be 
filed within three years from the time the cause of action accrues.
    (b) Claims alleging violations of the Shipping Act, 1916, or 
Intercoastal Shipping Act, 1933, must be filed within two years from the 
time the cause of action arises.
    (c) A claim is deemed filed on the date it is received by the 
Commission. [Rule 302.]



Sec. 502.303  [Reserved]



Sec. 502.304  Procedure and filing fee.

    (a) A sworn claim under this subpart shall be filed in the form 
prescribed in Exhibit No. 1 to this subpart. Three (3) copies of this 
claim must be filed, together with the same number of copies of such 
supporting documents as may be deemed necessary to establish the claim. 
Copies of tariff pages need not be filed; reference to such tariffs or 
to pertinent parts thereof will be sufficient. Supporting documents may 
consist of affidavits, correspondence, bills of lading, paid freight 
bills, export declarations, dock or wharf receipts, or of such other 
documents as, in the judgment of the claimant, tend to establish the 
claim. The Settlement Officer may, if deemed necessary, request 
additional documents or information from claimants. Claimant may attach 
a memorandum, brief or other document containing discussion, argument, 
or legal authority in support of its claim. If a claim filed under this 
subpart involves any shipment which has been the subject of a previous 
claim filed with the Commission, formally or informally, full reference 
to such previous claim must be given.
    (b) Claims under this subpart shall be addressed to the Office of 
the Secretary, Federal Maritime Commission, Washington, DC 20573. Such 
claims shall be accompanied by remittance of a $68 filing fee.
    (c) Each claim under this subpart will be acknowledged with a 
reference to the Informal Docket Number assigned. The number shall 
consist of a numeral(s) followed by capital ``I'' in parentheses. All 
further correspondence pertaining to such claims must

[[Page 77]]

refer to the assigned Informal Docket Number. If the documents filed 
fail to establish a claim for which relief may be granted, the parties 
affected will be so notified in writing. The claimant may thereafter, 
but only if the period of limitation has not run, resubmit its claim 
with such additional proof as may be necessary to establish the claim. 
In the event a complaint has been amended because it failed to state a 
claim upon which relief may be granted, it will be considered as a new 
complaint.
    (d) A copy of each claim filed under this subpart, with attachments, 
shall be served by the Settlement Officer on the respondent involved.
    (e) Within twenty-five (25) days from the date of service of the 
claim, the respondent shall serve upon the claimant and file with the 
Commission its response to the claim, together with an indication, in 
the form prescribed in Exhibit No. 2 to this subpart, as to whether the 
informal procedure provided in this subpart is consented to. Failure of 
the respondent to indicate refusal or consent in its response will be 
conclusively deemed to indicate such consent. The response shall consist 
of documents, arguments, legal authorities, or precedents, or any other 
matters considered by the respondent to be a defense to the claim. The 
Settlement Officer may request the respondent to furnish such further 
documents or information as deemed necessary, or he or she may require 
the claimant to reply to the defenses raised by the respondent.
    (f) If the respondent refuses to consent to the claim being 
informally adjudicated pursuant to this subpart, the claim will be 
considered a complaint under Sec. 502.311 and will be adjudicated under 
subpart T of this part.
    (g) Both parties shall promptly be served with the Settlement 
Officer's decision which shall state the basis upon which the decision 
was made. Where appropriate, the Settlement Officer may require that the 
respondent publish notice in its tariff of the substance of the 
decision. This decison shall be final, unless, within thirty (30) days 
from the date of service of the decision, the Commission exercises its 
discretionary right to review the decision. The Commission shall not, on 
its own initiative, review any decision or order of dismissal unless 
such review is requested by an individual Commissioner. Any such request 
must be transmitted to the Secretary within thirty (30) days after date 
of service of the decision or order. Such request shall be sufficient to 
bring the matter before the Commission for review.
    (h) Within thirty (30) days after service of a final decision by a 
Settlement Officer, any party may file a petition for reconsideration. 
Such petition shall be directed to the Settlement Officer and shall act 
as a stay of the review period prescribed in paragraph (g) of this 
section. 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; (3) addresses a material matter in the Settlement 
Officer's decision upon which the petitioner has not previously had the 
opportunity to comment. Petitions which merely elaborate upon or repeat 
arguments made prior to the decision or order will not be received. Upon 
issuance of a decision or order on reconsideration by the Settlement 
Officer, the review period prescribed in paragraph (g) of this section 
will recommence. [Rule 304.]

[49 FR 44369, Nov. 6, 1984, as amended at 59 FR 59170, Nov. 16, 1994]



Sec. 502.305  Applicability of other rules of this part.

    Except as specifically provided in this subpart, the Rules in 
subparts A through Q, inclusive, of this part do not apply to situations 
covered by this subpart. [Rule 305.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]

   Exhibit No. 1 to Subpart S [Sec. 502.304(a)]--Small Claim Form for 
             Informal Adjudication and Information Checklist

              Federal Maritime Commission, Washington, DC.

    Informal Docket No.------

_______________________________________________________________________


[[Page 78]]

________________________________________________________________________
(Claimant)
    vs.
_______________________________________________________________________

(Respondent)

    I. The claimant is [state in this paragraph whether claimant is an 
association, corporation, firm or partnership, and if a firm or 
partnership, the names of the individuals composing the same. State the 
nature and principal place of business.]
    II. The respondent named above is [state in this paragraph whether 
respondent is an association, corporation, firm or partnership, and if a 
firm or partnership, the names of the individuals composing the same. 
State the nature and principal place of business.]
    III. That [state in this and subsequent paragraphs to be lettered A, 
B, etc., the matters that gave rise to the claim. Name specifically each 
rate, charge, classification, regulation or practice which is 
challenged. Refer to tariffs, tariff items or rules, or agreement 
numbers, if known. If claim is based on the fact that a firm is a common 
carrier, state where it is engaged in transportation by water and which 
statute(s) it is subject to under the jurisdiction of the Federal 
Maritime Commission].
    IV. If claim is for overcharges, state commodity, weight and cube, 
origin, destination, bill of lading description, bill of lading number 
and date, rate and/or charges assessed, date of delivery, date of 
payment, by whom paid, rate or charge claimed to be correct and amount 
claimed as overcharges. [Specify tariff item for rate or charge claimed 
to be proper].
    V. State section of statute claimed to have been violated. (Not 
required if claim is for overcharges).
    VI. State how claimant was injured and amount of damages requested.
    VII. The undersigned authorizes the Settlement Officer to determine 
the above-stated claim pursuant to the informal procedure outlined in 
subpart S (46 CFR 502.301-502.305) of the Commission's informal 
procedure for adjudication of small claims subject to discretionary 
Commission review.
    Attach memorandum or brief in support of claim. Also attach bill of 
lading, copies of correspondence or other documents in support of claim.
_______________________________________________________________________

(Date)
_______________________________________________________________________

(Claimant's signature)
_______________________________________________________________________

(Claimant's address)
_______________________________________________________________________

(Signature of agent or attorney)
_______________________________________________________________________

(Agent's or attorney's address)

                              Verification

    State of ------, County of ------, ss: ------, being first duly 
sworn on oath deposes and says that he or she is
_______________________________________________________________________

The claimant [or if a firm, association, or corporation, state the 
capacity of the affiant] and is the person who signed the foregoing 
claim, that he or she has read the foregoing and that the facts set 
forth without qualification are true and that the facts stated therein 
upon information received from others, affiant believes to be true.

_______________________________________________________________________

Subscribed and sworn to before me, a notary public in and for the State 
of ------, County of ------, this ---- day of ------ 19--. (Seal)

_______________________________________________________________________

                             (Notary Public)

My Commission expires,_________________________________________________

           Information To Assist in Filing Informal Complaints

    Informal Docket procedures are limited to claims of $10,000 or less 
and are appropriate only in instances when an evidentiary hearing on 
disputed facts is not necessary. Where, however, a respondent elects not 
to consent to the informal procedures [See Exhibit No. 2 to subpart S], 
the claim will be adjudicated by an administrative law judge under 
subpart T of Part 502.
    Under the Shipping Act of 1984 [for foreign commerce], the claim 
must be filed within three (3) years from the time the cause of action 
accrues and may be brought against any person alleged to have violated 
the 1984 Act to the injury of claimant.
    Under the Shipping Act, 1916 and the Intercoastal Shipping Act, 1933 
[domestic commerce], the claim must be filed within two (2) years from 
the time the cause of action accrues and may only be brought against a 
``person subject to the Act'', e.g., a common carrier, terminal operator 
or freight forwarder.
    A violation of a specific section of a particular shipping statute 
must be alleged.
    The format of Exhibit No. 1 must be followed and a verification must 
be included. (See Secs. 502.21-502.32, 502.112, and 502.304.) An 
original and two (2) copies of the claim and all attachments, including 
a brief in support of the claim, must be submitted.

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 55 
FR 28400, July 11, 1990]

[[Page 79]]

Exhibit No. 2 to Subpart S [Sec. 502.304(e)]--Respondent's Consent Form 
                        for Informal Adjudication

              Federal Maritime Commission, Washington, DC.

                       Informal Docket No. ------

                         Respondent's Affidavit

    I authorize the Settlement Officer to determine the above-numbered 
claim in accordance with subpart S (46 CFR 502) of the Commission's 
informal procedure for adjudication of small claims subject to 
discretionary Commission Review.

(Date)_________________________________________________________________

(Signed)_______________________________________________________________

(Capacity)_____________________________________________________________

                              Verification

    State of ------, County of ------, ss: ------, being first duly 
sworn on oath deposes and says that he or she is ------, (Title or 
Position) and is the person who signed the foregoing and agrees without 
qualification to its truth.

_______________________________________________________________________
    Subscribed and sworn to before me, a notary public in and for the 
State of ------, County of ------, this ---- day of ------, 19--.
(Seal)

_______________________________________________________________________

(Notary Public)

My Commission expires._________________________________________________

                Certificate of Service [See Sec. 502.320]



      Subpart T--Formal Procedure for Adjudication of Small Claims



Sec. 502.311  Applicability.

    In the event the respondent elects not to consent to determination 
of the claim under subpart S of this part, it shall be adjudicated by 
the administrative law judges of the Commission under procedures set 
forth in this subpart, if timely filed under Sec. 502.302. The 
previously assigned Docket Number shall be used except that it shall now 
be followed by capital ``F'' instead of ``I'' in parentheses (See 
Sec. 502.304(c)). The complaint shall consist of the documents submitted 
by the claimant under subpart S of this part. [Rule 311.]



Sec. 502.312  Answer to complaint.

    The respondent shall file with the Commission an answer within 
twenty-five (25) days of service of the complaint and shall serve a copy 
of said answer upon complainant. The answer shall admit or deny each 
matter set forth in the complaint. Matters not specifically denied will 
be deemed admitted. Where matters are urged in defense, the answer shall 
be accompanied by appropriate affidavits, other documents, and 
memoranda. [Rule 312.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 502.313  Reply of complainant.

    Complainant may, within twenty (20) days of service of the answer 
filed by respondent, file with the Commission and serve upon the 
respondent a reply memorandum accompanied by appropriate affidavits and 
supporting documents. [Rule 313.]



Sec. 502.314  Additional information.

    The administrative law judge may require the submission of 
additional affidavits, documents, or memoranda from complainant or 
respondent. [Rule 314.]



Sec. 502.315  Request for oral hearing.

    In the usual course of disposition of complaints filed under this 
subpart, no oral hearing will be held, but, the administrative law 
judge, in his or her discretion, may order such hearing. A request for 
oral hearing may be incorporated in the answer or in complainant's reply 
to the answer. Requests for oral hearing will not be entertained unless 
they set forth in detail the reasons why the filing of affidavits or 
other documents will not permit the fair and expeditious disposition of 
the claim, and the precise nature of the facts sought to be proved at 
such oral hearing. The administrative law judge shall rule upon a 
request for oral hearing within ten (10) days of its receipt. In the 
event an oral hearing is ordered, it will be held in accordance with the 
rules applicable to other formal proceedings, as set forth in subparts A 
through Q of this part. [Rule 315.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]

[[Page 80]]



Sec. 502.316  Intervention.

    Intervention will ordinarily not be permitted. [Rule 316.]



Sec. 502.317  Oral argument.

    No oral argument will be held unless otherwise directed by the 
administrative law judge. [Rule 317.]



Sec. 502.318  Decision.

    (a) The decision of the administrative law judge shall be final, 
unless, within twenty-two (22) days from the date of service of the 
decision, either party requests review of the decision by the 
Commission, asserting as grounds therefor that a material finding of 
fact or a necessary legal conclusion is erroneous or that prejudicial 
error has occurred, or unless, within thirty (30) days from the date of 
service of the decision, the Commission exercises its discretionary 
right to review the decision. The Commission shall not, on its own 
initiative, review any decision or order of dismissal unless such review 
is requested by an individual Commissioner. Any such request must be 
transmitted to the Secretary within thirty (30) days after date of 
service of the decision or order. Such request shall be sufficient to 
bring the matter before the Commission for review. [Rule 318.]
    (b) If the complainant is awarded reparations pursuant to section 11 
of the Shipping Act of 1984, attorney's fees shall also be awarded in 
accordance with Sec. 502.254 of this part. [Rule 318.]

[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 6332, Mar. 3, 1987]



Sec. 502.319  Date of service and computation of time.

    The date of service of documents served by the Commission shall be 
that which is shown in the service stamp thereon. The date of service of 
documents served by parties shall be the date when the matter served is 
mailed or delivered in person, as the case may be. When the period of 
time prescribed or allowed is ten (10) days or less, intermediate 
Saturdays, Sundays, and holidays shall be excluded from the computation. 
[Rule 319.]



Sec. 502.320  Service.

    All claims, resubmitted claims, petitions to intervene and rulings 
thereon, notices of oral hearings, notices of oral arguments (if 
necessary), decisions of the administrative law judge, notices of 
review, and Commission decisions shall be served by the administrative 
law judge or the Commission. All other pleadings, documents and filings 
shall, when tendered to the Commission, evidence service upon all 
parties to the proceeding. Such certificate shall be in substantially 
the following form:

                         Certificate of Service

    I hereby certify that I have this day served the foregoing document 
upon all parties of record in this proceeding by [mailing, delivering to 
courier, or delivering in person], a copy to each such person in 
sufficient time to reach such person on the date the document is due to 
be filed with the Commission.

    Dated at ------ this ------ day of ------, 19--.

(Signature)____________________________________________________________

(For)__________________________________________________________________

[Rule 320.]



Sec. 502.321  Applicability of other rules of this part.

    Except as specifically provided in this subpart, rules in subparts A 
through Q, inclusive, of this part do not apply to situations covered by 
this subpart. [Rule 321.]



                     Subpart U--Conciliation Service



Sec. 502.401  Definitions.

    For purposes of this subpart:
    (a) Disputes means disagreements between two or more parties arising 
from the transportation of goods or the performance of services in 
connection with such transportation in the domestic offshore commerce or 
the foreign commerce of the United States; a difference of opinion 
regarding the interpretation of any tariff, rate, rule, or regulation; a 
disagreement regarding the performance of any service in connection with 
such transportation; a disagreement with respect to an alleged violation 
of the shipping statutes; and other disagreement or opposing opinion 
regarding any matter connected with transportation of cargoes

[[Page 81]]

in the waterborne commerce of the United States. This definition is 
limited to those disputes which fall within the jurisdiction of the 
Federal Maritime Commission.
    (b) Shipping statutes means the Shipping Act of 1984, 46 U.S.C. app. 
1701-1720; Shipping Act, 1916, 46 U.S.C. app. 801 et seq.; Merchant 
Marine Act, 1936, 46 U.S.C. app. 1101 et seq.; Merchant Marine Act, 
1920, 46 U.S.C. app. 861 et seq., the Intercoastal Shipping Act, 1933, 
46 U.S.C. app. 843 et seq.; and amendments of and Acts relating to the 
foregoing, to the extent of the Federal Maritime Commission's 
jurisdiction under such Acts.
    (c) Advisory opinions means non-binding conclusions reached by a 
conciliator on the basis of oral presentation and/or documentary 
authority.
    (d) Domestic offshore commerce means waterborne common carriage 
between:
    (1) The Continental United States and Alaska or Hawaii;
    (2) Alaska and Hawaii;
    (3) The United States or the District of Columbia and any territory, 
commonwealth, possession or district (excluding the District of 
Columbia);
    (4) Any territory, commonwealth, possession or district (excluding 
the District of Columbia) and any other such territory, commonwealth, 
possession or district; and
    (5) Places in the same district, territory, commonwealth or 
possession (excluding the District of Columbia); and which are not 
solely engaged in transportation subject to the jurisdiction of the 
Interstate Commerce Commission under 49 U.S.C. chapter 105.
    (e) Foreign commerce means waterborne common carriage between the 
United States or any of its territories, commonwealths, districts or 
possessions, and a foreign country. [Rule 401.]



Sec. 502.402  Policy.

    It is the policy of the Federal Maritime Commission:
    (a) To offer its good offices and expertise to parties to disputes 
involving matters within its jurisdiction, so as to permit resolution of 
such disputes with dispatch and without the necessity of costly and 
time-consuming formal proceedings;
    (b) To facilitate and promote the resolution of problems and 
disputes by encouraging affected parties to resolve differences through 
their own resources;
    (c) To create a forum in which grievances, interpretations, 
problems, and questions involving the waterborne commerce of the United 
States may be aired, discussed and, hopefully, resolved to the mutual 
advantage of all concerned parties. [Rule 402.]



Sec. 502.403  Persons eligible for service.

    Request for conciliation service may be made by any shipper, 
shippers' association, merchant, carrier, conference of carriers, 
freight forwarder, marine terminal operator, Government agency, or any 
other person affected by or involved in the transportation of goods by 
common carrier in the waterborne domestic offshore or foreign commerce 
of the United States. [Rule 403.]



Sec. 502.404  Procedure and fee.

    (a) The request for conciliation should be addressed to the Federal 
Maritime Commission Conciliation Service, Washington, DC 20573, and 
should contain the details of the dispute, names and addresses of all 
involved parties, the contentions of each party or parties, and copies 
of any documents that are relevant to the disposition of the issues. If 
the request is made by any one party to the dispute, the party 
requesting conciliation should mail or deliver to the other party or 
parties to the dispute a copy of the letter of request, with 
attachments, if any. The request shall be accompanied by remittance of a 
$69 service fee.
    (b) Each matter will be assigned a number prefixed by the letters 
FMCCS and assigned to a conciliator for disposition and the involved 
parties will be informed of the case number and the name of the 
conciliator.
    (c) While it is preferable that all parties involved in a dispute 
request a service jointly, a request by a single party for the service 
will be acted upon, provided all parties agree that the dispute should 
be conciliated. In the event that the request is made by only one party, 
the conciliator will contact the other party or parties to

[[Page 82]]

the dispute and be advised as to whether such parties agree to 
participate in the conciliation. If the other party or parties to the 
dispute do not agree to the Conciliation Service, no further action will 
be taken by the conciliator and the conciliation ceases.
    (d) The parties will be free to determine the best procedures to be 
used with the qualification that the conciliator may disapprove 
procedures that would in his or her opinion be either too time-consuming 
or involve inordinate expense to the Federal Maritime Commission. The 
parties may agree to (1) fix a time and place for the oral presentation 
of each party's contention; and (2) request affidavits, documents, or 
other materials that could help resolve the dispute. The conciliator 
will be in a strictly advisory capacity. There will be no written record 
of the conciliation discussions.
    (e) Participation in the conciliation of a dispute is purely 
voluntary at all stages and the parties involved may withdraw at any 
time without prejudice. [Rule 404.]

[49 FR 44369, Nov. 6, 1984, as amended at 59 FR 59170, Nov. 16, 1994; 63 
FR 50535, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, the last 
sentence of Sec. 502.404(a) was revised, effective Nov. 2, 1998. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 502.404  Procedure and fee.

    (a) * * * The request shall be accompanied by remittance of a $61 
service fee.

                                * * * * *



Sec. 502.405  Assignment of conciliator.

    The Secretary of the Commission, giving due regard to the type and 
complexity of the problem presented and the degree of expertise 
required, will assign a conciliator to each dispute. [Rule 405.]



Sec. 502.406  Advisory opinion.

    (a) The conciliator will write an advisory opinion that must meet 
the approval of all parties. If the advisory opinion, or revision 
thereof requested by one or more of the parties, is not unanimously 
agreed upon, then the conciliation will cease, without prejudice to any 
of the parties involved. If unanimity is not reached, the conciliator 
will note in a report to the Commission, which shall be served on all 
parties, that the parties failed to reach agreement. Only if unanimity 
is reached will the informal advisory opinion, although not binding, be 
sent to all interested parties and be made available to the public.
    (b) There will be no appeal from, or review of, such opinions and 
any party may pursue any further course of action under any other rule 
or statute that it deems advisable. [Rule 406.]



    Subpart V--Implementation of the Equal Access to Justice Act in 
                         Commission Proceedings

    Source: 52 FR 28264, July 29, 1987, unless otherwise noted.



Sec. 502.501  General provisions.

    (a) Purpose. The Equal Access to Justice Act, 5 U.S.C. 504 
(``EAJA''), provides for the award of attorney fees and other expenses 
to eligible individuals and entities who are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
the Federal Maritime Commission (``the Commission''). An eligible party 
may receive an award when it prevails over an agency, unless the 
agency's position was substantially justified or special circumstances 
make an award unjust. The rules in this subpart describe the parties 
eligible for awards and the proceedings that are covered. They also 
explain how to apply for awards, and the procedures and standards that 
the Commission will use to make them.
    (b) When EAJA applies. EAJA applies to any adversary adjudication:
    (1) Pending or commenced before the Commission on or after August 5, 
1985;
    (2) Commenced on or after October 1, 1984, and finally disposed of 
before August 5, 1985, provided that an application for fees and 
expenses, as described in Sec. 502.502 of this subpart, has been filed 
with the Commission within 30 days after August 5, 1985; or
    (3) Pending on or commenced on or after October 1, 1981, in which an 
application for fees and other expenses was timely filed and was 
dismissed for lack of jurisdiction.

[[Page 83]]

    (c) Proceedings covered. (1)(i) EAJA applies to adversary 
adjudications conducted by the Commission under this part. These are 
adjudications under 5 U.S.C. 554 in which the position of this or any 
other agency of the United States, or any component of any agency, is 
presented by an attorney or other representative who enters an 
appearance and participates in the proceeding.
    (ii) Any proceeding in which the Commission may prescribe a lawful 
present or future rate is not covered by the Act.
    (iii) Proceedings to grant or renew licenses are also excluded, but 
proceedings to modify, suspend, or revoke licenses are covered if they 
are otherwise ``adversary adjudications.''
    (2) The Commission's failure to identify a type of proceeding as an 
adversary adjudication shall not preclude the filing of an application 
by a party who believes the proceeding is covered by the EAJA; whether 
the proceeding is covered will then be an issue for resolution in 
proceedings on the application.
    (3) If a proceeding includes both matters covered by EAJA and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.
    (d) Eligibility of applicants. (1) To be eligible for an award of 
attorney fees and other expenses under EAJA, the applicant must be a 
party to the adversary adjudication for which it seeks an award. The 
term ``party'' is defined in 5 U.S.C. 551(3). The applicant must show 
that it meets all conditions of eligibility set out in this section and 
Sec. 502.502.
    (2) The types of eligible applicants are:
    (i) An individual with a net worth of not more than $2 million;
    (ii) The sole owner of an unincorporated business who has a net 
worth of not more than $7 million, including both personal and business 
interests, and not more than 500 employees;
    (iii) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (iv) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (v) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of not more than $7 million 
and not more than 500 employees.
    (3) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was initiated.
    (4) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (5) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (6) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interests of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interests, will be considered an affiliate for purposes of this 
subpart, unless the adjudicative officer determines that such treatment 
would be unjust and contrary to the purposes of EAJA in light of the 
actual relationship between the affiliated entities. In addition, the 
adjudicative officer may determine that financial relationships of the 
applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (7) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.
    (e) Standards for awards. (1) A prevailing applicant may receive an 
award for

[[Page 84]]

fees and expenses incurred in connection with a proceeding or in a 
significant and discrete substantive portion of the proceeding, unless 
the position of the agency over which the applicant has prevailed was 
substantially justified. The position of the agency includes, in 
addition to the position taken by the agency in the adversary 
adjudication, the action or failure to act by the agency upon which the 
adversary adjudication is based. The burden of proof that an award 
should not be made to an eligible prevailing applicant is on agency 
counsel.
    (2) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding or if special circumstances 
make the award sought unjust.
    (f) Allowable fees and expenses. (1) Awards will be based on rates 
customarily charged by the persons engaged in the business of acting as 
attorneys, agents and expert witnesses, even if the services were made 
available without charge or at a reduced rate to the applicant.
    (2) No award for the fee of an attorney or agent under this subpart 
may exceed $75.00 per hour. No award to compensate an expert witness may 
exceed the highest rate at which the Commission pays expert witnesses. 
However, an award may also include the reasonable expenses of the 
attorney, agent, or witness as a separate item, if the attorney, agent 
or witness ordinarily charges clients separately for such expenses.
    (3) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the adjudicative officer shall 
consider the following:
    (i) If the attorney, agent or witness is in private practice, his or 
her customary fees for similar services, or, if an employee of the 
applicant, the fully allocated costs of the services;
    (ii) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (iii) The time actually spent in the representation of the 
applicant;
    (iv) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (v) Such other factors as may bear on the value of the services 
provided.
    (4) The reasonable cost of any study, analysis, engineering report, 
test project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the services does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of applicant's case.
    (g) Awards against other agencies. If an applicant is entitled to an 
award because it prevails over another agency of the United States that 
participates in a proceeding before the Commission and takes a position 
that is not substantially justified, the award or an appropriate portion 
of the award shall be made against that agency.



Sec. 502.502  Information required from applicants.

    (a) Contents of petition. (1) An application for an award of fees 
and expenses under EAJA shall be by petition under Sec. 502.69 of this 
part, shall clearly indicate that the application is made under EAJA, 
and shall identify the applicant and the proceeding (including docket 
number) for which an award is sought. The application shall show that 
the applicant has prevailed and identify the position of an agency or 
agencies that the applicant alleges was not substantially justified. 
Unless the applicant is an individual, the application shall also state 
the number of employees of the applicant and describe briefly the type 
and purpose of its organization or business.
    (2) The petition shall also include a statement that the applicant's 
net worth does not exceed $2 million (if an individual) or $7 million 
(for all other applicants, including their affiliates). However, an 
applicant may omit this statement if:
    (i) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or

[[Page 85]]

    (ii) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (3) The petition shall state the amount of fees and expenses for 
which an award is sought.
    (4) The petition may also include any other matters that the 
applicant wishes the Commission to consider in determining whether and 
in what amount an award should be made.
    (5) The petition shall be signed by the applicant or an authorized 
officer or attorney of the applicant. It shall also contain or be 
accompanied by a written verification under oath or under penalty of 
perjury that the information provided in the application is true and 
correct.
    (b) Net worth exhibit. (1) Each applicant except a qualified tax-
exempt organization or cooperative association must provide with its 
petition a detailed exhibit showing the net worth of the applicant and 
any affiliates (as defined in Sec. 502.501(d)(6) of this subpart) when 
the proceeding was initiated. The exhibit may be in any form convenient 
to the applicant that provides full disclosure of the applicant's and 
its affiliates' assets and liabilities and is sufficient to determine 
whether the applicant qualifies under the standards in this subpart. The 
adjudicative officer may require an applicant to file additional 
information to determine its eligibility for an award.
    (2) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the adjudicative officer in a 
sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the 
information would adversely affect the applicant, and why disclosure is 
not required in the public interest. The material in question shall be 
served on counsel representing the agency against which the applicant 
seeks an award, but need not be served on any other party to the 
proceeding. If the adjudicative officer finds that the information 
should not be withheld from disclosure, it shall be placed in the public 
record of the proceeding. Otherwise, any request to inspect or copy the 
exhibit shall be disposed of in accordance with the Commission's 
established procedures under the Freedom of Information Act under 
Secs. 503.31-503.43 of this chapter.
    (c) Documentation of fees and expenses. The petition shall be 
accompanied by full documentation of the fees and expenses, including 
the cost of any study, analysis, engineering report, test, project or 
similar matter, for which an award is sought. A separate itemized 
statement shall be submitted for each professional firm or individual 
whose services are covered by the application, showing the hours spent 
in connection with the proceeding by each individual, a description of 
the specific services performed, the rates at which each fee has been 
computed, any expenses for which reinbursement is sought, the total 
amount claimed, and the total amount paid or payable by the applicant or 
by any other person or entity for the services provided. The 
adjudicative officer may require the applicant to provide vouchers, 
receipts, or other substantiation for any expenses claimed.
    (d) When a petition may be filed. (1) A petition may be filed 
whenever the applicant has prevailed in the proceeding or in a 
significant and discrete substantive portion of the proceeding, but in 
no case later than 30 days after the Commission's final disposition of 
the proceeding.
    (2) For purposes of this subpart, final disposition means the date 
on which a decision or order disposing of the merits of the proceeding 
or any other complete resolution of the proceeding, such as a settlement 
or voluntary dismissal, becomes final and unappealable, both within the 
Commission and to the courts.

[[Page 86]]

    (3) If review or reconsideration is sought or taken of a decision as 
to which an applicant believes it has prevailed, proceedings for the 
award of fees shall be stayed pending final disposition of the 
underlying controversy. When the United States appeals the underlying 
merits of an adversary adjudication to a court, no decision on an 
application for fees and other expenses in connection with that 
adversary adjudication shall be made until a final and unreviewable 
decision is rendered by the court on the appeal or until the underlying 
merits of the case have been finally determined pursuant to the appeal.



Sec. 502.503  Procedures for considering petitions.

    (a) Filing and service of documents. (1) Any petition for an award 
or other pleading or document related to a petition shall be filed and 
served on all parties to the proceeding in the same manner as other 
pleadings in the proceeding, except as provided in Sec. 502.502(b)(2) 
(confidential financial information).
    (2) The petition and all other pleadings or documents related to the 
petition will be referred to an Administrative Law Judge to initially 
decide the matter as adjudicative officer.
    (b) Reply to petition. (1) Within 30 days after service of a 
petition, counsel representing the agency against which an award is 
sought may file a reply to the petition. Unless counsel requests an 
extension of time for filing or files a statement of intent to negotiate 
under paragraph (b)(2) of this section, failure to file a reply within 
the 30-day period may be treated as a consent to the award requested.
    (2) If agency counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement of 
their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing a reply for an additional 30 days, and 
further extension may be granted by the adjudicative officer upon 
request by agency counsel and the applicant.
    (3) The reply shall explain in detail any objections to the award 
requested and identify the facts relied on in support of counsel's 
position. If the reply is based on any alleged facts not already in the 
record of the proceeding, agency counsel shall include with the reply 
either supporting affidavits or a request for further proceedings under 
paragraph (f) of this section.
    (c) Response to reply. Within 15 days after service of a reply, the 
applicant may file a response. If the response is based on any alleged 
facts not already in the record of the proceeding, the applicant shall 
include with the response either supporting affidavits or a request for 
further proceedings under paragraph (f) of this section.
    (d) Comments by other parties. Any party to a proceeding other than 
the applicant and agency counsel may file comments on an application 
within 30 days after it is served, or on a reply, within 15 days after 
it is served. A commenting party may not participate further in 
proceedings on the application unless the adjudicative officer 
determines that the public interest requires such participation in order 
to permit full exploration of matters raised in the comments.
    (e) Settlement. The applicant and agency counsel may agree on a 
proposed settlement of the award before final action on the application, 
either in connection with a settlement of the underlying proceeding, or 
after the underlying proceeding has been concluded in accordance with 
the rules of this subpart pertaining to settlement. If a prevailing 
party and agency counsel agree on a proposed settlement of an award 
before a petition is filed, the petition shall be filed with the 
proposed settlement.
    (f) Further proceedings. (1) Ordinarily, the determination of an 
award will be made on the basis of the written record. However, on 
request of either the applicant or agency counsel, or on his or her own 
initiative, the adjudicative officer may order further proceedings, such 
as an informal conference, oral argument, additional written submissions 
or, as to issues other than substantial justification (such as the 
applicant's eligibility or substantiation of fees and expenses), 
pertinent discovery or an evidentiary hearing. Such further proceedings 
shall be held only when necessary for full and fair resolution of the 
issues arising from

[[Page 87]]

the application, and shall be conducted as promptly as possible. Whether 
or not the position of the agency was substantially justified shall be 
determined on the basis of the administrative record, as a whole, which 
is made in the adversary adjudication for which fees and other expenses 
are sought.
    (2) A request that the adjudicative officer order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.
    (g) Decision. The adjudicative officer shall serve an initial 
decision on the application within 60 days after completion of 
proceedings on the application. The decision shall include written 
findings and conclusions on the applicant's eligibility and status as a 
prevailing party, and an explanation of the reasons for any difference 
between the amount requested and the amount awarded. The decision shall 
also include, if at issue, findings on whether the agency's position was 
substantially justified, whether the applicant unduly protracted the 
proceedings, or whether special circumstances make an award unjust. If 
the applicant has sought an award against more than one agency, the 
decision shall allocate responsibility for payment of any award made 
among the agencies, and shall explain the reason for the allocation 
made.
    (h) Commission review. Either the applicant or agency counsel may 
seek review of the initial decision on the fee application, or the 
Commission may decide to review the decision on its own initiative, in 
accordance with Sec. 502.227 of this part. If neither the applicant nor 
agency counsel seeks review and the Commission does not take review on 
its own initiative, the initial decision on the application shall become 
a final decision of the Commission 30 days after it is issued. Whether 
to review a decision is a matter within the discretion of the 
Commission. If review is taken, the Commission will issue a final 
decision on the application or remand the application to the 
adjudicative officer for further proceedings.
    (i) Judicial review. Judicial review of final Commission decisions 
on awards may be sought as provided in 5 U.S.C. 504(c)(2).
    (j) Payment of award. (1)(i) An applicant seeking payment of an 
award shall submit to the comptroller or other disbursing officer of the 
paying agency a copy of the Commission's final decision granting the 
award, accompanied by a certification that the applicant will not seek 
review of the decision in the United States courts.
    (ii) The agency will pay the amount awarded to the applicant within 
60 days.
    (2) Where the Federal Maritime Commission is the paying agency, the 
application for payment of award shall be submitted to: Office of Budget 
and Financial Management, Federal Maritime Commission, Washington, DC 
20573.



     Subpart W--Compromise, Assessment, Mitigation, Settlement, and 
                      Collection of Civil Penalties

    Source: 49 FR 44418, Nov. 6, 1984, unless otherwise noted. 
Redesignated at 58 FR 27211, May 7, 1993.



Sec. 502.601  Purpose and scope.

    The purpose of this subpart is to implement the statutory provisions 
of section 32 of the Shipping Act, 1916, section 19 of the Merchant 
Marine Act, 1920, section 13 of the Shipping Act of 1984, and sections 
2(c) and 3(c) of Public Law 89-777 by establishing rules and regulations 
governing the compromise, assessment, settlement and collection of civil 
penalties arising under certain designated provisions of the Shipping 
Act, 1916, the Merchant Marine Act, 1920, the Intercoastal Shipping Act, 
1933, the Shipping Act of 1984, Public Law 89-777, and/or any order, 
rule or regulation (except for procedural rules and regulations 
contained in this part) issued or made by the Commission in the exercise 
of its powers, duties and functions under those statutes.



Sec. 502.602  Definitions.

    For the purposes of this subpart:

[[Page 88]]

    (a) Assessment means the imposition of a civil penalty by order of 
the Commission after a formal docketed proceeding.
    (b) Commission means the Federal Maritime Commission.
    (c) Compromise means the process whereby a civil penalty for a 
violation is agreed upon by the respondent and the Commission outside of 
a formal, docketed proceeding.
    (d) Mitigation means the reduction, in whole or in part, of the 
amount of a civil penalty.
    (e) Person includes individuals, corporations, partnerships, and 
associations existing under or authorized by the laws of the United 
States or of a foreign country.
    (f) Respondent means any person charged with a violation.
    (g) Settlement means the process whereby a civil penalty or other 
disposition of the case for a violation is agreed to in a formal, 
docketed proceeding instituted by order of the Commission.
    (h) Violation includes any violation of sections 14 through 21 
(except section 16 First and Third) of the Shipping Act, 1916; sections 
19(6)(d), 19(7)(d) and 19(11) of the Merchant Marine Act, 1920; section 
2 of the Intercoastal Shipping Act, 1933; any provision of the Shipping 
Act of 1984; sections 2 and 3 of Public Law 89-777; and/or any order, 
rule or regulation (except for procedural rules and regulations 
contained in this part) issued or made by the Commission in the exercise 
of its powers, duties and functions under the Shipping Act, 1916, the 
Merchant Marine Act, 1920, the Intercoastal Shipping Act, 1933, the 
Shipping Act of 1984, or Public Law 89-777.
    (i) Words in the plural form shall include the singular and vice 
versa; and words importing the masculine gender shall include the 
feminine and vice versa. The terms ``includes'' and ``including'' do not 
exclude matters not listed but which are in the same general class. The 
word ``and'' includes ``or'', except where specifically stated or where 
the context requires otherwise.



Sec. 502.603  Assessment of civil penalties: Procedure; criteria for determining amount; limitations; relation to compromise.

    (a) Procedure for assessment of penalty. The Commission may assess a 
civil penalty only after notice and opportunity for hearing. Civil 
penalty assessment proceedings, including settlement negotiations, shall 
be governed by the Commission's Rules of Practice and Procedure in this 
part. All settlements must be approved by the Presiding Officer. The 
full text of any settlement must be included in the final order of the 
Commission.
    (b) Criteria for determining amount of penalty. In determining the 
amount of any penalties assessed, the Commission shall take into account 
the nature, circumstances, extent and gravity of the violation committed 
and the policies for deterrence and future compliance with the 
Commission's rules and regulations and the applicable statutes. The 
Commission shall also consider the respondent's degree of culpability, 
history of prior offenses, ability to pay and such other matters as 
justice requires.
    (c) Limitations; relation to compromise. When the Commission, in its 
discretion, determines that policy, justice or other circumstances 
warrant, a civil penalty assessment proceeding may be instituted at any 
time for any violation which occurred within five years prior to the 
issuance of the order of investigation. Such proceeding may also be 
instituted at any time after the initiation of informal compromise 
procedures, except where a compromise agreement for the same violations 
under the compromise procedures has become effective under 
Sec. 502.604(e).



Sec. 502.604  Compromise of penalties: Relation to assessment proceedings.

    (a) Scope. Except in pending civil penalty assessment proceedings 
provided for in Sec. 502.603, the Commission, when it has reason to 
believe a violation has occurred, may invoke the informal compromise 
procedures of this section.
    (b) Notice. When the Commission considers it appropriate to afford 
an opportunity for the compromise of a civil penalty, it will, except 
when otherwise authorized by the Commission, or

[[Page 89]]

where circumstances render it unnecessary, send a registered or 
certified Notice and Demand Letter (``NDL'') to the respondent. The NDL 
will describe specific violation(s) on which the claim is based, 
including the particular facts, dates and other elements necessary for 
the respondent to identify the specific conduct constituting the alleged 
violation; the amount of the penalty demanded; and the names of 
Commission personnel with whom the demand may be discussed, if the 
person desires to compromise the penalty. The NDL also will state the 
deadlines for the institution and completion of compromise negotiations 
and the consequences of failure to compromise.
    (c) Request for compromise. Any person receiving a NDL provided for 
in paragraph (b) of this section may, within the time specified, deny 
the violation, or submit matters explaining, mitigating or showing 
extenuating circumstances, as well as make voluntary disclosures of 
information and documents.
    (d) Criteria for compromise. In addition to the factors set forth in 
Sec. 502.603(b), in compromising a penalty claim, the Commission may 
consider litigative probabilities, the cost of collecting the claim and 
enforcement policy.
    (e) Disposition of claims in compromise procedures. (1) When a 
penalty is compromised and the respondent agrees to settle for that 
amount, a compromise agreement shall be executed. (One example of such 
compromise agreement is set forth as appendix A to this subpart.) This 
agreement, after reciting the nature of the claim, will include a 
statement evidencing the respondent's agreement to the compromise of the 
Commission's penalty claim for the amount set forth in the agreement and 
will also embody an approval and acceptance provision which is to be 
signed by the appropriate Commission official. Upon compromise of the 
penalty in the agreed amount, a duplicate original of the executed 
agreement shall be furnished to the respondent.
    (2) Upon completion of the compromise, the Commission may issue a 
public notice thereof, the terms and language of which are not subject 
to negotiation.
    (f) Relation to assessment proceedings. Except by order of the 
Commission, no compromise procedure shall be initiated or continued 
after institution of a Commission assessment proceeding directed to the 
same violations. Any offer of compromise submitted by the respondent 
pursuant to this section shall be deemed to have been furnished by the 
respondent without prejudice and shall not be used against the 
respondent in any proceeding.
    (g) Delegation of compromise authority. The compromise authority set 
forth in this subpart is delegated to the Director, Bureau of 
Enforcement.

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 61 FR 51233, Oct. 1, 1996]



Sec. 502.605  Payment of penalty: Method; default.

    (a) Method. Payment of penalties by the respondent is to be made as 
follows:
    (1) By bank cashier's check or other instrument acceptable to the 
Commission;
    (2) Upon execution of a promissory note containing a confess-
judgment agreement, by periodic regular installments, with interest 
where appropriate, by bank cashier's check or other instrument 
acceptable to the Commission; or
    (3) By combination of the alternatives in paragraphs (a) (1) and (2) 
of this section.
    (b) All checks or other instruments submitted in payment of claims 
shall be made payable to the Federal Maritime Commission.
    (c) Default in payment. Where a respondent fails or refuses to pay a 
penalty properly assessed under Sec. 502.603, or compromised and agreed 
to under Sec. 502.604, appropriate collection efforts will be made by 
the Commission, including, but not limited to referral to the Department 
of Justice for collection. Where such defaulting respondent is a 
licensed freight forwarder, such default also may be grounds for 
revocation or suspension of the respondent's license, after notice and 
opportunity for hearing, unless such notice and hearing have been waived 
by the respondent in writing.

[[Page 90]]

  Appendix A to Subpart W--Example of Compromise Agreement to be Used 
                          Under 46 CFR 502.604

                          Compromise Agreement

                          FMC File No. ________

    This Agreement is entered into between:
    (1) the Federal Maritime Commission, hereinafter referred to as 
Commission, and
    (2) ________________, hereinafter referred to as Respondent.
    Whereas, the Commission is considering the institution of an 
assessment proceeding against Respondent for the recovery of civil 
penalties provided under the [appropriate statute], for alleged 
violations of section ________;
    Whereas, this course of action is the result of practices believed 
by the Commission to have been engaged in by Respondent, to wit:
    [General description of practices and dates or time period involved]
    Whereas, the Commission has authority under the Shipping Act of 1984 
and the Shipping Act, 1916, to compromise and collect civil penalties; 
and,
    Whereas, Respondent has terminated the practices which are the basis 
for the allegations of violation set forth herein, and has instituted 
and indicated its willingness to maintain measures designed to eliminate 
these practices by Respondent, its officers, directors or employees.
    Now Therefore, in consideration of the premises herein, and in 
compromise of all civil penalties arising from the alleged violations, 
Respondent and the Commission hereby agree upon the following terms and 
conditions of compromise and settlement:
    1. Respondent shall make a monetary payment to the Commission 
herewith, by bank cashier's check, in the total amount of $________.
    2. Upon acceptance in writing of this Agreement by the Director of 
the Bureau of Enforcement of the Commission, this instrument shall 
forever bar the commencement or institution of any assessment proceeding 
or other claim for recovery of civil penalties from the Respondent 
arising from the alleged violations set forth above.
    3. It is expressly understood and agreed that this Agreement is not, 
and is not to be construed as, an admission by Respondent to the alleged 
violations set forth above.

(Respondent's Name)

By:____________________________________________________________________
Title:_________________________________________________________________
Date:__________________________________________________________________

                         Approval and Acceptance

    The above terms, conditions and consideration are hereby approved 
and accepted:

    By the Federal Maritime Commission:

Director, Bureau of Enforcement

Date:__________________________________________________________________

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 61 FR 51233, Oct. 1, 1996]



                   Subpart X--Paperwork Reduction Act



Sec. 502.991  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    This section displays the control numbers assigned to information 
collection requirements of the Commission in this part by the Office of 
Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 
1980, Pub. L. 96-511. The Commission intends that this section comply 
with the Act, which requires that agencies display a current control 
number assigned by the Director of OMB for each agency information 
collection requirement:

------------------------------------------------------------------------
                                                            Current OMB
                         Section                            control no.
------------------------------------------------------------------------
502.27 (Form FMC.12)....................................       3072-0001
------------------------------------------------------------------------


[49 FR 44369, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993]



PART 503--PUBLIC INFORMATION--Table of Contents




                           Subpart A--General

Sec.
503.1  Statement of policy.

             Subpart B--Publication in the Federal Register

503.11  Materials to be published.
503.12  Effect of nonpublication.
503.13  Incorporation by reference.

                Subpart C--Commission Opinions and Orders

503.21  Public records.
503.22  Current index.
503.23  Effect of noncompliance.

   Subpart D--Procedure Governing Availability of Commission Records--
                       Freedom of Information Act

503.31  Records available at the Office of the Secretary.
503.32  Records generally available.

[[Page 91]]

503.33  Other records available upon written request under the Freedom 
          of Information Act.
503.34  Procedures on requests for documents.
503.35  Exceptions to availability of records.
503.36  Commission report of actions.

                             Subpart E--Fees

503.41  Policy and services available.
503.42  Payment of fees and charges.
503.43  Fees for services.

                 Subpart F--Information Security Program

503.51  Definitions.
503.52  Senior agency official.
503.53  Oversight Committee.
503.54  Original classification.
503.55  Derivative classification.
503.56  General declassification policy.
503.57  Mandatory review for declassification.
503.58  Appeals of denials of mandatory declassification review 
          requests.
503.59  Safeguarding classified information.

  Subpart G--Access to Any Record of Identifiable Personal Information

503.60  Definitions.
503.61  Conditions of disclosure.
503.62  Accounting of disclosures.
503.63  Request for information.
503.64  Commission procedure on request for information.
503.65  Request for access to records.
503.66  Amendment of a record.
503.67  Appeals from denial of request for amendment of a record.
503.68  Exemptions.
503.69  Fees.

 Subpart H--Public Observation of Federal Maritime Commission Meetings 
   and Public Access to Information Pertaining to Commission Meetings

503.70  Policy.
503.71  Definitions.
503.72  General rule--meetings.
503.73  Exceptions--meetings.
503.74  Procedures for closing a portion or portions of a meeting or a 
          portion or portions of a series of meetings on agency 
          initiated requests.
503.75  Procedures for closing a portion of a meeting on request 
          initiated by an interested person.
503.76  Effect of vote to close a portion or portions of a meeting or 
          series of meetings.
503.77  Responsibilities of the General Counsel of the agency upon a 
          request to close any portion of any meeting.
503.78  General rule--information pertaining to meeting.
503.79  Exceptions--information pertaining to meeting.
503.80  Procedures for withholding information pertaining to meeting.
503.81  Effect of vote to withhold information pertaining to meeting.
503.82  Public announcement of agency meeting.
503.83  Public announcement of changes in meeting.
503.84  [Reserved]
503.85  Agency recordkeeping requirements.
503.86  Public access to records.
503.87  Effect of provisions of this subpart on other subparts.

    Authority: 5 U.S.C. 552, 552a, 552b, 553; 31 U.S.C. 9701; E.O. 12958 
of April 20, 1995 (60 FR 19825), sections 5.2(a) and (b).

    Source: 49 FR 44401, Nov. 6, 1984, unless otherwise noted.



                           Subpart A--General



Sec. 503.1  Statement of policy.

    (a) The Chairman of the Federal Maritime Commission is responsible 
for the effective administration of the provisions of Public Law 89-487, 
as amended. The Chairman shall carry out this responsibility through the 
program and the officials as hereinafter provided in this part.
    (b) In addition, the Chairman, pursuant to his responsibility, 
hereby directs that every effort be expended to facilitate the maximum 
expedited service to the public with respect to the obtaining of 
information and records. Accordingly, members of the public may make 
requests for information, records, decisions or submittals in accordance 
with the provisions of Sec. 503.31.



             Subpart B--Publication in the Federal Register



Sec. 503.11  Materials to be published.

    (a) The Commission shall separately state and concurrently publish 
the following materials in the Federal Register for the guidance of the 
public:
    (1) Descriptions of its central and field organization and the 
established places at which the officers from whom, and the methods 
whereby, the public may secure information, make submittals or requests, 
or obtain decisions.
    (2) Statements of the general course and method by which its 
functions are

[[Page 92]]

channeled and determined, including the nature and requirements of all 
formal and informal procedures available.
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations.
    (4) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability formulated and adopted by the agency.
    (5) Every amendment, revision, or repeal of the foregoing.
    (b) The Commission's publication with respect to paragraph (a)(1) of 
this section has been and shall continue to be by publication in the 
Federal Register of the Rules and Regulations, Commission Order No. 1 
(Amended), and amendments and supplements thereto.
    (c) The Commission's publications with respect to paragraphs (a)(2), 
(a)(3), and (a)(4) of this section, including amendments, revisions, and 
repeals, have been and shall continue to be by publication in the 
Federal Register as part of the Code of Federal Regulations, title 46, 
chapter IV.



Sec. 503.12  Effect of nonpublication.

    Except to the extent that a person has actual and timely notice of 
the terms thereof, no person shall in any manner be required to resort 
to, or be adversely affected by any matter required to be published in 
the Federal Register and not so published.



Sec. 503.13  Incorporation by reference.

    For purposes of this subpart, matter which is reasonably available 
to the class of persons affected hereby shall be deemed published in the 
Federal Register when incorporated by reference therein with the 
approval of the Director of the Office of the Federal Register.

[49 FR 44401, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



                Subpart C--Commission Opinions and Orders



Sec. 503.21  Public records.

    (a) The Commission shall, in accordance with this part, make the 
following materials available for public inspection and copying:
    (1) Final opinions (including concurring and dissenting opinions) 
and all orders made in the adjudication of cases.
    (2) Those statements of policy and interpretations which have been 
adopted by the Commission.
    (3) Administrative staff manuals and instructions to staff that 
affect any member of the public.
    (b) To prevent unwarranted invasion of personal privacy, the 
Commission may delete identifying details when it makes available or 
publishes an opinion, statement of policy, interpretation, or staff 
manual or instruction, and shall, in each case, explain in writing the 
justification for the deletion.



Sec. 503.22  Current index.

    The Commission shall maintain and make available for public 
inspection and copying a current index providing identifying information 
for the public as to any matter which is issued, adopted, or 
promulgated, and which is required by subpart B of this part to be made 
available or published. The index shall be available at the Office of 
the Secretary, Washington, DC 20573. Publication of such indices has 
been determined by the Commission to be unnecessary and impracticable. 
The indices shall, nonetheless, be provided to any member of the public 
at a cost not in excess of the direct cost of duplication of any such 
index upon request therefor made in accordance with subpart D of this 
part.



Sec. 503.23  Effect of noncompliance.

    No final order, opinion, statement of policy, interpretation, or 
staff manual or instruction that affects any member of the public will 
be relied upon, used, or cited, as precedent by the Commission against 
any private party unless it

[[Page 93]]

has been indexed and either made available or published as provided by 
this subpart, or unless that private party shall have actual and timely 
notice of the terms thereof.



   Subpart D--Procedure Governing Availability of Commission Records--
                       Freedom of Information Act



Sec. 503.31  Records available at the Office of the Secretary.

    The following records are available for inspection and copying at 
the Federal Maritime Commission, Office of the Secretary, Washington, DC 
20573, without the requirement of a written request. Access to requested 
records may be delayed if they have been sent to archives.
    (a) Proposed and final rules and regulations of the Commission 
including general substantive rules and statements of policy and 
interpretations.
    (b) Rules of Practice and Procedure.
    (c) Reports of decisions (including concurring and dissenting 
opinions), orders and notices in all formal proceedings and pertinent 
correspondence.
    (d) Official docket files (transcripts, exhibits, briefs, etc.) in 
all formal proceedings,\1\ except for materials which are the subject of 
a protective order.
---------------------------------------------------------------------------

    \1\ Copies of transcripts may be purchased from the reporting 
company contracted for by the Commission. Contact the Office of the 
Secretary for the name and address of this company.
---------------------------------------------------------------------------

    (e) Correspondence to or from the Commission or Administrative Law 
Judges concerning docketed proceedings.
    (f) Press releases.
    (g) Approved summary minutes of Commission actions showing final 
votes, except for minutes of closed Commission meetings which are not 
available until the Commission publicly announces the results of such 
deliberations.
    (h) Annual reports of the Commission.

[55 FR 38329, Sept. 18, 1990]



Sec. 503.32  Records generally available.

    The following Commission records are generally available for 
inspection and copying, without resort to Freedom of Information Act 
procedures, upon request in writing addressed to the Office of the 
Secretary:
    (a) Agreements filed and in effect pursuant to section 15 of the 
Shipping Act, 1916 and sections 5 and 6 of the Shipping Act of 1984.
    (b) Agreements filed under section 15 of the Shipping Act, 1916 and 
section 5 of the Shipping Act of 1984 which have been noticed in the 
Federal Register.
    (c) Tariffs filed under the provisions of the Shipping Act, 1916, 
the Intercoastal Shipping Act, 1933, and the Shipping Act of 1984.
    (d) Terminal tariffs filed pursuant to part 514 of this chapter.
    (e) List of certifications of financial responsibility pertaining to 
Public Law 89-777.
    (f) List of licensed ocean freight forwarders.

[49 FR 44401, Nov. 6, 1984, as amended at 55 FR 38330, Sept. 18, 1990; 
60 FR 27229, May 23, 1995]



Sec. 503.33  Other records available upon written request under the Freedom of Information Act.

    (a) A member of the public who requests permission to inspect, copy 
or be provided with any Commission records not described in Secs. 503.31 
and 503.32 shall:
    (1) Submit such request in writing to the Secretary, Federal 
Maritime Commission, Washington, DC 20573. Any such request shall be 
clearly marked on the exterior with the letters FOIA; and
    (2) Reasonably describe the record or records sought.
    (b) The Secretary shall evaluate each request in conjunction with 
the official having responsibility for the subject matter area and the 
General Counsel, and the Secretary shall determine whether or not to 
grant the request in accordance with the provisions of Secs. 503.34 and 
503.35.

[55 FR 38330, Sept. 18, 1990]



Sec. 503.34  Procedures on requests for documents.

    (a) Determination of compliance with requests for documents. (1) 
Upon request by any member of the public for documents, made in 
accordance with the

[[Page 94]]

rules of this part, the Commission's Secretary or his or her delegate in 
his or her absence, shall determine whether or not such request shall be 
granted.
    (2) Except as provided in paragraph (c) of this section, such 
determination shall be made by the Secretary within ten (10) days 
(excluding Saturdays, Sundays and legal public holidays) after receipt 
of such request.
    (3) The Secretary shall immediately notify the party making such 
request of the determination made, the reasons therefor, and, in the 
case of a denial of such request, shall notify the party of its right to 
appeal that determination to the Chairman.
    (b) Appeals from adverse determination (denial of request). (1) Any 
party whose request for documents or other information pursuant to this 
part has been denied in whole or in part by the Secretary may appeal 
such determination. Any such appeal shall be addressed to: Chairman, 
Federal Maritime Commission, Washington, DC 20573, and shall be 
submitted within a reasonable time following receipt by the party of 
notification of the initial denial by the Secretary in the case of a 
total denial of the request, or within a reasonable time following 
request, or within a reasonable time following receipt of any of the 
records requested in the case of a partial denial. In no case shall an 
appeal be filed later than ten (10) working days following receipt of 
notification of denial or receipt of a part of the records requested.
    (2) Upon appeal from any denial or partial denial of a request for 
documents by the Secretary, the Chairman of the Federal Maritime 
Commission, or the Chairman's specific delegate in his or her absence, 
shall make a determination with respect to that appeal within twenty 
(20) days (excepting Saturdays, Sundays and legal public holidays) after 
receipt of such appeal, except as provided in paragraph (c) of this 
section. If, on appeal, the denial is upheld, either in whole or in 
part, the Chairman shall so notify the party submitting the appeal and 
shall notify such person of the provisions of paragraph 4 of subsection 
(a) of the FOIA (Pub. L. 93-502, 88 Stat. 1561-1562, November 21, 1974) 
regarding judicial review of such determination upholding the denial. 
Notification shall also include the statement that the determination is 
that of the Chairman of the Federal Maritime Commission and the name of 
the Chairman.
    (c) Exception to time limitation. In unusual circumstances, as 
specified in this paragraph, the time limits prescribed with respect to 
initial actions or actions on appeal may be extended by written notice 
from the Secretary of the Commission to the person making such request, 
setting forth the reasons for such extension and the date on which a 
determination is expected to be dispatched. No such notice shall specify 
a date that would result in an extension for more than ten (10) working 
days. As used in this paragraph, unusual circumstances means, but only 
to the extent reasonably necessary to the proper processing of the 
particular request--
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject matter interest therein.
    (d) Effect of failure by Commission to meet the time limitation. 
Failure by the Commission either to deny or grant any request for 
documents within the time limits prescribed by FOIA (5 U.S.C. 552, as 
amended) and these regulations shall be deemed to be an exhaustion of 
the administrative remedies available to the person making the request.

[49 FR 44401, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]



Sec. 503.35  Exceptions to availability of records.

    (a) Except as provided in paragraph (b) of this section, the 
following records shall not be available:

[[Page 95]]

    (1) Records specifically authorized under criteria established by 
Executive order to be kept secret in the interest of national defense or 
foreign policy and which are in fact properly classified pursuant to 
such Executive order. Records to which this provision applies shall be 
deemed by the Commission to have been properly classified. This 
exception may apply to records in the custody of the Commission which 
have been transmitted to the Commission by another agency which has 
designated the record as nonpublic under Executive order.
    (2) Records related solely to the internal personnel rules and 
practices of the Commission. Such records relate to those matters which 
are for the guidance of Commission personnel with respect to their 
employment with the Federal Maritime Commission.
    (3) Records specifically exempted from disclosure by statute.
    (4) Information given in confidence. This includes information 
obtained by or given to the Commission which constitutes trade secrets, 
confidential commercial or financial information, privileged 
information, or other information which was given to the Commission in 
confidence or would not customarily be released by the person from whom 
it was obtained.
    (5) Interagency or intraagency memoranda or letters which would not 
be available by law to a private party in litigation with the 
Commission. Such communications include interagency memoranda, drafts, 
staff memoranda transmitted to the Commission, written communications 
between the Commission, the Secretary, and the General Counsel, 
regarding the preparation of Commission orders and decisions, other 
documents received or generated in the process of issuing an order, 
decision, or regulation, and reports and other work papers of staff 
attorneys, accountants, and investigators.
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of privacy. This 
exemption includes all personnel and medical records and all private, 
personal, financial, or business information contained in other files 
which, if disclosed to the public, would invade the privacy of any 
person, including members of the family of the person to whom the 
information pertains.
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (b) Nothing in this section authorizes withholding of information or 
limiting the availability of records to the public except as 
specifically stated in this part, nor shall this part be authority to 
withhold information from Congress.
    (c) Whenever a request is made which involves access to records 
described in paragraph (a)(7)(i) of this section and the investigation 
or proceeding involves a possible violation of criminal law; and there 
is reason to believe that the subject of the investigation or proceeding 
is not aware of its pendency, and disclosure of the existence of the 
records could reasonably be expected to

[[Page 96]]

interfere with enforcement proceedings, the Commission may, during only 
such time as that circumstance continues, treat the records as not 
subject to the requirements of 5 U.S.C. 552 and this subpart.

[49 FR 44401, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 52 
FR 13682, Apr. 24, 1987]



Sec. 503.36  Commission report of actions.

    On or before March 1 of each calendar year, the Federal Maritime 
Commission shall submit a report of its activities with regard to public 
information requests during the preceding calendar year to the Speaker 
of the House of Representatives and to the President of the Senate. This 
report shall include:
    (a) The number of determinations made by the Federal Maritime 
Commission not to comply with requests for records made to the agency 
under the provisions of this part and the reasons for each such 
determination.
    (b) The number of appeals made by persons under such provisions, the 
result of such appeals, and the reasons for the action upon each appeal 
that results in a denial of information.
    (c) The name and title or position of each person responsible for 
the denial of records requested under the provisions of this part and 
the number of instances of participation for each.
    (d) The results of each proceeding conducted pursuant to subsection 
(a)(4)(F) of FOIA, as amended November 21, 1974, including a report of 
the disciplinary action taken against the officer or employee who was 
primarily responsible for improperly withholding records or an 
explanation of why disciplinary action was not taken.
    (e) A copy of every rule made by the Commission implementing the 
provisions of the FOIA, as amended November 21, 1974.
    (f) A copy of the fee schedule and the total amount of fees 
collected by the agency for making records available under this section.
    (g) Such other information as indicates efforts to administer fully 
the provisions of the FOIA, as amended.



                             Subpart E--Fees



Sec. 503.41  Policy and services available.

    Pursuant to policies established by Congress, the Government's costs 
for services provided to identifiable persons are to be recovered by the 
payment of fees (Independent Offices Appropriations Act, 31 U.S.C. 9701 
and Freedom of Information Reform Act of 1986, October 27, 1986, 5 
U.S.C. 552). Except as otherwise noted, it is the general policy of the 
Commission not to waive or reduce service and filing fees contained in 
this chapter. In extraordinary situations, the Commission will accept 
requests for waivers or fee reductions. Such requests are to be made to 
the Secretary of the Commission at the time of the information request 
or the filing of documents and must demonstrate that the waiver or 
reduction of a fee is in the best interest of the public, or that 
payment of a fee would impose an undue hardship. The Secretary will 
notify the requestor of the decision to grant or deny the request for 
waiver or reduction.
    (a) Upon request, the following services are available upon the 
payment of the fees hereinafter prescribed; except that no fees shall be 
assessed for search, duplication or review in connection with requests 
for single copies of materials described in Secs. 503.11 and 503.21:
    (1) Records/documents search.
    (2) Duplication of records/documents.
    (3) Review of records/documents.
    (4) Cerification of copies of records/documents.
    (b) Fees shall also be assessed for the following services provided 
by the Commission:
    (1) Placing one's name, as an interested party, on the mailing list 
of a docketed proceeding.
    (2) Processing nonattorney applications to practice before the 
Commission.

[49 FR 44401, Nov. 6, 1984, as amended at 52 FR 13682, Apr. 24, 1987; 59 
FR 59170, Nov. 16, 1994; 63 FR 50535, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, in 
Sec. 503.41, Policy and services available., paragraph (b)(1) was 
removed, and paragraphs (b)(2) and (b)(3)

[[Page 97]]

were redesignated as (b)(1) and (b)(2), effective Nov. 2, 1998. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 503.41  Policy and services available.

                                * * * * *

    (b) * * *
    (1) Subscriptions to Commission publications.
    (2) Placing one's name, as an interested party, on the mailing list 
of a docketed proceeding.
    (3) Processing nonattorney applications to practice before the 
Commission.



Sec. 503.42  Payment of fees and charges.

    The fees charged for special services may be paid through the mail 
by check, draft, or postal money order, payable to the Federal Maritime 
Commission, except for charges for transcripts of hearings. Transcripts 
of hearings, testimony and oral argument are furnished by a 
nongovernmental contractor, and may be purchased directly from the 
reporting firm.



Sec. 503.43  Fees for services.

    (a) Definitions. The following definitions apply to the terms when 
used in this subpart:
    (1) Search means all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents. Search for material will be 
done in the most efficient and least expensive manner so as to minimize 
costs for both the agency and the requester. Search is distinguished, 
moreover, from review of material in order to determine whether the 
material is exempt from disclosure. Searches may be done manually or by 
computer using existing programming.
    (2) Duplication means the process of making a copy of a document 
necessary to respond to a Freedom of Information Act or other request. 
Such copies can take the form of paper or machine readable documentation 
(e.g., magnetic tape or disk), among others.
    (3) Review means the process of examining documents located in 
response to a commerical use request to determine whether any portion of 
any document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.g., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (4) Commercial use request means a request from or on behalf of one 
who seeks information for a use or purpose that furthers the commercial, 
trade, or profit interests of the requester or the person on whose 
behalf the request is made. In determining whether a requester properly 
belongs in this category, the agency must determine the use to which a 
requester will put the documents requested. Where the agency has 
reasonable cause to doubt the use to which a requester will put the 
records sought, or where that use is not clear from the request itself, 
the agency will seek additional clarification before assigning the 
request to a specific category.
    (5) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (6) Non-commercial scientific institution means an institution that 
is not operated on a commercial basis as that term is referenced in 
paragraph (a)(4) of this section, and which is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry.
    (7) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term news means information that is 
about current events or that would be of current interest to the public. 
Examples of news media entities include television or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only in those instances when they can qualify as disseminators of news) 
who make their products available for purchase or subscription by the 
general public. These examples are not intended to be all-inclusive. As

[[Page 98]]

traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services), such 
alternative media would be included in this category. Freelance 
journalists, may be regarded as working for a news organization if they 
can demonstrate a solid basis for expecting publication through that 
organization, even though not actually employed by it. A publication 
contract would be the clearest proof, but the agency may also look to 
the past publication record of a requester in making this determination.
    (8) Direct costs means those expenditures which the agency actually 
incurs in searching for and duplicating (and in the case of commercial 
requester, reviewing) documents to respond to a Freedom of Information 
Act (``FOIA'') request. Direct costs include, for example, the salary of 
the employee performing the work (the basic rate of pay for the employee 
plus 17.5 percent of that rate to cover benefits) and the cost of 
operating duplicating machinery. Not included in direct costs are 
overhead expenses such as costs of space, and heating or lighting the 
facility in which the records are stored.
    (b) General. (1) The basic fees set forth in paragraph (c) of this 
section provide for documents to be mailed with postage prepaid. If copy 
is to be transmitted by registered, certified, air, or special delivery 
mail, postage therefor will be added to the basic fee. Also, if special 
handling or packaging is required, costs thereof will be added to the 
basic fee.
    (2) The fees for search, duplication and review set forth in 
paragraph (c) of this section reflect the full allowable direct costs 
expected to be incurred by the agency for the service. Costs of search 
and review may be assessed even if it is determined that disclosure of 
the records is to be withheld. Cost of search may be assessed even if 
the agency fails to locate the records. Requesters much reasonably 
describe the records sought. The following restrictions, limitations and 
guidelines apply to the assessment of such fees:
    (i) For commercial use requesters, charges recovering full direct 
costs for search, review and duplication of records will be assessed.
    (ii) For educational and non-commercial scientific institution 
requesters, no charge will be assessed for search or review of records. 
Charges recovering full direct costs for duplication of records will be 
assessed, excluding charges for the first 100 pages. To be eligible for 
inclusion in this category, requesters must show that the request is 
being made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use, but are sought in 
furtherance of scholarly (if the request is from an educational 
institution) or scientific (if the request is from a non-commercial 
scientific institution) research.
    (iii) For representative of the news media requesters, no charge 
will be assessed for search or review of records. Charges recovering 
full direct costs for duplication of records will be assessed, excluding 
charges for the first 100 pages.
    (iv) For all other requesters, no charge will be assessed for review 
of records. Charges recovering full direct costs for search and 
duplication of records will be assessed excluding charges for the first 
100 pages of duplication and the first two hours of search time. 
Requests from individuals for records about themselves, filed in a 
Commission system of records, will be treated under the fee provisions 
of the Privacy Act of 1984 which permit fees only for duplication.
    (v) No fee may be charged for search, review or duplication if the 
costs of routine collection and processing of the fee are likely to 
exceed the amount of the fee.
    (vi) Documents shall be furnished without any charge or at a reduced 
charge if disclosure of the information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in the commercial interest of the requester. In determining whether a 
waiver or reduction of charges is appropriate the following factors will 
be taken into consideration.
    (A) The subject of the request: Whether the subject of the requested 
records concerns the operations or activities of the government;

[[Page 99]]

    (B) The informative value of the information to be disclosed: 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities;
    (C) The contribution to an understanding of the subject by the 
general public likely to result from disclosure: Whether disclosure of 
the requested information will contribute to public understanding;
    (D) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute significantly to public 
understanding of government operations or activities;
    (E) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (F) The primary interest in disclosure: Whether the magnitude of the 
identified commercial interest of the requester is sufficiently large, 
in comparison with the public interest in disclosure, that disclosure is 
primarily in the commercial interest of the requester.
    (vii) Whenever it is anticipated that fees chargeable under this 
section will exceed $25.00 and the requester has not indicated in 
advance a willingness to pay fees as high as anticipated, the requester 
will be notified of the amount of the anticipated fee. In such cases the 
requester will be given an opportunity to confer with Commission 
personnel with the object of reformulating the request to meet the needs 
of the requester at a lower cost.
    (viii) Interest may be charged record requesters who fail to pay 
fees assessed. Assessment of interest may begin on the amount billed 
starting on the 31st day following the day on which the billing was 
sent. Interest will be at the rate prescribed in section 3717 of title 
31 U.S.C., and will accrue from the date of the billings. Receipt of 
payment by the agency will stay the accrual of interest.
    (ix) Whenever it reasonably appears that a requester of records or a 
group of requesters is attempting to break a request down into a series 
of requests for the purpose of evading the assessment of fees, such 
requests will be aggregated and fees assessed accordingly. Multiple 
requests on unrelated subjects will not be aggregated.
    (x) The agency may require a requester to make advance payment only 
when:
    (A) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), in 
which case the requester will be required to pay the full amount owed 
plus any applicable interest as provided above, and to make an advance 
payment of the full amount of the estimated fee before the agency begins 
to process a new request or a pending request from that requester; or
    (B) The agency estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250, in which 
case, the agency will notify the requester of the likely cost and obtain 
satisfactory assurance of full payment where the requester has a history 
of prompt payment of FOIA fees, or will require an advance payment of an 
amount up to the full estimated charges in the case of requesters with 
no history of payment.
    (xi) Unless applicable fees are paid, the agency may use the 
authorities of the Debt Collection Act (Pub. L. 97-365), including 
disclosure to consumer reporting agencies and use of collection agencies 
where appropriate to encourage payment.
    (xii) Whenever action is taken under paragraphs (b)(2)(viii) and 
(b)(2)(ix) of this section, the administrative time limits prescribed in 
subsection (a)(6) of 5 U.S.C. 552 (i.e., 10 working days from receipt of 
initial requests and 20 working days from receipt of appeals from 
initial denial, plus permissible extensions of these time limits will 
begin only after the Commission has received fee payments described 
above.
    (c) Charges for search, review, duplication and certification. (1) 
Records search will be performed by Commission personnel at the 
following rates:
    (i) Search will be performed by clerical/administrative personnel at 
a rate of $18.00 per hour and by professional/executive personnel at a 
rate of $35.00 per hour.
    (ii) Minimum charge for record search is $18.00.

[[Page 100]]

    (2) Charges for review of records to determine whether they are 
exempt from disclosure under Sec. 503.35 shall be assessed to recover 
full costs at the rate of $70.00 per hour. Charges for review will be 
assessed only for initial review to determine the applicability of a 
specific exemptions to a particular record. No charge will be assessed 
for review at the administrative appeal level.
    (3) Charges for duplication of records and documents will be 
assessed as follows, limited to size 8\1/2\' x 14' or smaller:
    (i) If performed by requesting party, at the rate of five cents per 
page (one side).
    (ii) By Commission personnel, at the rate of five cents per page 
(one side) plus $18.00 per hour.
    (iii) Minimum charge for copying is $4.50.
    (iv) No charge will be made by the Commission for notices, 
decisions, orders, etc., required by law to be served on a party to any 
proceeding or matter before the Commission. No charge will be made for 
single copies of such Commission issuances individually requested in 
person or by mail.
    (4) The certification and validation (with Federal Maritime 
Commission seal) of documents filed with or issued by the Commission 
will be available at $55.00 for each certification.
    (d) To have one's name and address placed on the mailing list of a 
specific docket as an interested party to receive all issuances 
pertaining to that docket: $8 per proceeding.
    (e) Applications for admission to practice before the Commission for 
persons not attorneys at law must be accompanied by a fee of $86 
pursuant to Sec. 502.27 of this chapter.

[49 FR 44401, Nov. 6, 1984, as amended at 52 FR 13683, Apr. 24, 1987; 59 
FR 59170, Nov. 16, 1994; 63 FR 50535, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, in 
Sec. 503.43, the first two sentences of paragraph (a)(8), paragraphs 
(c)(1)(i) and (ii), the first sentence of paragraph (c)(2), paragraphs 
(c)(3)(ii) and (iii), paragraph (c)(4), paragraph (e) and paragraph (g) 
were revised; paragraphs (d), (f) and (h) were removed; revised 
paragraphs (e) and (g) were redesignated paragraphs (d) and (e); and 
paragraph (c)(3)(iv) was added, effective Nov. 2, 1998. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 503.43  Fees for services.

    (a) * * *
    (8)Direct costs means those expenditures which the agency actually 
incurs in searching for and duplicating (and in the case of commercial 
requester, reviewing) documents to respond to a Freedom of Information 
Act request. Direct costs include, for example, the salary of the 
employee performing work (the basic rate of pay for the employee plus 16 
percent of that rate to cover benefits) and the cost of operating 
duplicating machinery.

                                * * * * *

    (c) * * *
    (1) * * *
    (i) Search will be performed by clerical/administrative personnel at 
a rate of $15.00 per hour and by professional/executive personnel at a 
rate of $30.00 per hour.
    (ii) Minimum charge for record search is $15.00.
    (2)Charges for review of records to determine whether they are 
exempt from disclosure under Sec. 503.35 shall be assessed to recover 
full costs at the rate of $63.00 per hour. * * *
    (3) * * *
    (ii) By Commission personnel, at the rate of five cents per page 
(one side) plus $15.00 per hour.
    (iii) Minimum charge for copying is $3.50.
    (4) The certification and validation (with Federal Maritime 
Commission seal) of documents filed with or issued by the Commission 
will be available at $70.00 for each certification.
    (d) Annual subscriptions to Commission publications for which there 
are regular mailing lists are available at the charges indicated below 
for calendar year terms. Subscriptions for periods of less than a full 
calendar year will be prorated on a quarterly basis. No provision is 
made for refund upon cancellation of subscription by a purchaser.
    (1) Orders, notices, rulings, and decisions (initial and final) 
issued by Administrative Law Judges and by the Commission in all formal 
docketed proceedings before the Federal Maritime Commission are 
available at an annual subscription rate of $278.
    (2) Final decisions (only) issued by the Commission in all formal 
docketed proceedings before the Commission are available at an annual 
subscription rate of $223.
    (3) General rules and regulations of the Commission are available at 
the following rates: (i) Initial set including all current regulations 
for a fee of $83, and (ii) an annual subscription rate of $6 for all 
amendments to existing regulations and any new regulations issued.

[[Page 101]]

    (4) Exceptions. No charge will be made by the Commission for 
notices, decisions, orders, etc., required by law to be served on a 
party to any proceeding or matter before the Commission. No charge will 
be made for single copies of the above Commission publications 
individually requested in person or by mail. In addition, a subscription 
to Commission mailing lists will be entered without charge when one of 
the following conditions is present:
    (i) The furnishing of the service without charge is an appropriate 
courtesy to a foreign country or international organization.
    (ii) The recipient is another governmental agency, Federal, State, 
or local, concerned with the domestic or foreign commerce by water of 
the United States or, having a legitimate interest in the proceedings 
and activities of the Commission.
    (iii) The recipient is a college or university.
    (iv) The recipient does not fall within paragraphs (d)(4) (i), (ii), 
or (iii) of this section but is determined by the Commission to be 
appropriate in the interest of its programs.
    (e) To have one's name and address placed on the mailing list of a 
specific docket as an interested party to receive all issuances 
pertaining to that docket: $7 per proceeding.
    (f) Loose-leaf reprint of the Commission's complete, current Rules 
of Practice and Procedure, part 502 of this chapter, for an initial fee 
of $9. Future amendments to the reprint are available at an annual 
subscription rate of $7.
    (g) Applications for admission to practice before the Commission for 
persons not attorneys at law must be accompanied by a fee of $77 
pursuant to Sec. 502.27 of this chapter.
    (h) Additional issuances, publications and services of the 
Commission may be made available for fees to be determined by the 
Secretary which fees shall not exceed the cost to the Commission for 
providing them.



                 Subpart F--Information Security Program



Sec. 503.51  Definitions.

    (a) Original classification means an initial determination that 
information requires protection against unauthorized disclosure in the 
interest of national security, together with a classification 
designation signifying the level of protection required.
    (b) Derivative classification means a determination that information 
is in substance the same as information currently classified, and the 
application of the same classification markings.
    (c) Declassification date or event means a date or event upon which 
classified information is automatically declassified.
    (d) Downgrading date or event means a date or event upon which 
classified information is automatically downgraded in accordance with 
appropriate downgrading instructions on the classified materials.
    (e) National security means the national defense or foreign 
relations of the United States.
    (f) Foreign government information means either information provided 
to the United States by a foreign government or governments, an 
international organization of governments, or any element thereof with 
the expectation, expressed or implied, that the information, the source 
of the information, or both, are to be held in confidence; or 
information produced by the United States pursuant to or as a result of 
a joint arrangement with a foreign government or governments, an 
international organization of governments, or any element thereof, 
requiring that the information, the arrangement, or both, are to be held 
in confidence.



Sec. 503.52  Senior agency official.

    The Chairman of the Commission shall designate a senior agency 
official to be the Security Officer for the Commission who shall be 
responsible for directing and administering the Commission's information 
security program, which includes an active oversight and security 
education program to ensure effective implementation of Executive Order 
12356.



Sec. 503.53  Oversight Committee.

    An Oversight Committee is established, under the chairmanship of the 
Security Officer with the following responsibilities:
    (a) Establish a Commission security education program to familiarize 
all personnel who have or may have access to classified information with 
the provisions of Executive Order 12356, and Information Security 
Oversight Office Directive No. 1. The program shall include initial, 
refresher, and termination briefings;
    (b) Establish controls to ensure that classified information is 
used, processed, stored, reproduced, and transmitted only under 
conditions that will

[[Page 102]]

provide adequate protection and prevent access by unauthorized persons;
    (c) Act on all suggestions and complaints concerning the 
Commission's information security program;
    (d) Recommend appropriate administrative action to correct abuse or 
violations of any provision of Executive Order 12356; and
    (e) Consider and decide other questions concerning classification 
and declassification that may be brought before it.



Sec. 503.54  Original classification.

    (a) No Commission Member or employee has the authority to classify 
any Commission originated information.
    (b) If a Commission Member or employee develops information that 
appears to require classification, or receives any foreign government 
information as defined in Sec. 503.51(f), the Member or employee shall 
immediately notify the Security Officer and appropriately protect the 
information.
    (c) If the Security Officer believes the information warrants 
classification, it shall be sent to the appropriate agency with original 
classification authority over the subject matter, or to the Information 
Security Oversight Office, for review and a classification 
determination.
    (d) If there is reasonable doubt about the need to classify 
information, it shall be safeguarded as if it were classified pending a 
determination by an original classification authority. If there is 
reasonable doubt about the appropriate level of classification, it shall 
be safeguarded at the higher level of classification pending a 
determination by an original classification authority.



Sec. 503.55  Derivative classification.

    (a) Any document that includes paraphrases, restatements, or 
summaries of, or incorporates in new form, information that is already 
classified, shall be assigned the same level of classification as the 
sources, unless consultation with originators or instructions contained 
in authorized classification guides indicate that no classification, or 
a lower classification than originally assigned, should be used.
    (b) Persons who apply derivative classification markings shall:
    (1) Observe and respect original classification decisions, and
    (2) Carry forward to any newly created documents any assigned 
authorized markings. The declassification date or event that provides 
the longest period of classification shall be used for documents 
classified on the basis of multiple sources.
    (c) A derivative document that derives its classification from the 
approved use of the classification guide of another agency shall bear 
the declassification date required by the provisions of that 
classification guide.
    (d) Documents classified derivatively on the basis of source 
documents or classification guides shall bear all applicable marking 
prescribed in sections 2001.5(a) through 2001.5(e), Information Security 
Oversight Office Directive No. 1.
    (1) Classification authority. The authority for classification shall 
be shown as follows:
    (i) Classified by (description of source documents or classification 
guide), or
    (ii) Classified by multiple sources, if a document is classified on 
the basis of more than one source document or classification guide.
    (iii) In these cases, the derivative classifier shall maintain the 
identification of each source with the file or record copy of the 
derivatively classified document. A document derivatively classified on 
the basis of a source document that is marked ``Classified by Multiple 
Sources'' shall cite the source document in its ``Classified by'' line 
rather than the term ``Multiple sources.''
    (2) Declassification and downgrading instructions. Date or events 
for automatic declassification or downgrading, or the notation 
``Originating Agency's Determination Required'' to indicate that the 
document is not to be declassified automatically, shall be carried 
forward from the source document, or as directed by a classification 
guide, and shown on ``declassify on'' line as follows:

``Declassify on: (date, description of event); or
``Originating Agency's Determination Required (OADR).''

[[Page 103]]



Sec. 503.56  General declassification policy.

    (a) The Commission exercises declassification and downgrading 
authority in accordance with section 3.1 of Executive Order 12356, only 
over that information originally classified by the Commission under 
previous Executive orders. Declassification and downgrading authority 
may be exercised by the Commission Chairman and the Commission Security 
Officer, and such others as the Chairman may designate. Commission 
personnel may not declassify information originally classified by other 
agencies.
    (b) The Commission does not now have original classification 
authority nor does it have in its possession any documents that it 
originally classified when it had such authority. The Commission has 
authorized the Archivist of the United States to automatically 
declassify information originally classified by the Commission and under 
its exclusive and final declassification jurisdiction at the end of 20 
years from the date of original classification.



Sec. 503.57  Mandatory review for declassification.

    (a) Information originally classified by the Commission shall be 
subject to a review for declassification by the Commission, if:
    (1) A request is made by a United States citizen or permanent 
resident alien, a federal agency, or a state or local government; and
    (2) A request describes the documents or material containing the 
information with sufficient specificity to enable the Commission to 
locate it with a reasonable amount of effort. Requests with insufficient 
description of the material will be returned to the requester for 
further information.
    (b) Requests for mandatory declassification reviews of documents 
originally classified by the Commission shall be in writing, and shall 
be sent to the Security Officer, Federal Maritime Commission, 
Washington, DC 20573.
    (c) If the request requires the provision of services by the 
Commission, fair and equitable fees may be charged under title 5 of the 
Independent Offices Appropriation Act, 65 Stat. 290, 31 U.S.C 483a.
    (d) Requests for mandatory declassification reviews shall be 
acknowledged by the Commission within 15 days of the date of receipt of 
such requests.
    (e) If the document was originally classified by the Commission, the 
Commission Security Officer shall forward the request to the Chairman of 
the Commission for a determination of whether the document should be 
declassified.
    (f) If the document was derivatively classified by the Commission or 
originally classified by another agency, the request, the document, and 
a recommendation for action shall be forwarded to the agency with the 
original classification authority. The Commission may, after 
consultation with the originating agency, inform the requester of the 
referral.
    (g) If a document is declassified in its entirety, it may be 
released to the requester, unless withholding is otherwise warranted 
under applicable law. If a document or any part of it is not 
declassified, the Security Officer shall furnish the declassified 
portions to the requester unless withholding is otherwise warranted 
under applicable law, along with a brief statement concerning the 
reasons for the denial of the remainder, and the right to appeal that 
decision to the Commission within 60 days.
    (h) If a declassification determination cannot be made within 45 
days, the requester shall be advised that additional time is needed to 
process the request. Final determination shall be made within one year 
from the date of receipt unless there are unusual circumstances.
    (i) In response to a request for information under the Freedom of 
Information Act, the Privacy Act of 1974, or the mandatory review 
provisions of Executive Order 12356, the Commission shall refuse to 
confirm or deny the existence or non-existence of requested information 
whenever the fact of its existence or non-existence is itself 
classifiable under Executive Order 12356.

[[Page 104]]



Sec. 503.58  Appeals of denials of mandatory declassification review requests.

    (a) Within 60 days after the receipt of denial of a request for 
mandatory declassification reveiw, the requester may submit an appeal in 
writing to the Commission through the Secretary, Federal Maritime 
Commission, Washington, DC 20573. The appeal shall:
    (1) Identify the document in the same manner in which it was 
identified in the original request;
    (2) Indicate the dates of the request and denial, and the expressed 
basis for the denial; and
    (3) State briefly why the document should be declassified.
    (b) The Commission shall rule on the appeal within 30 days of 
receiving it. If additional time is required to make a determination, 
the Commission shall notify the requester of the additional time needed 
and provide the requester with the reason for the extension. The 
Commission shall notify the requester in writing of the final 
determination and the reasons for any denial.
    (c) A determination by the Commission under paragraph (b) of this 
section is final and no further administrative appeal will be permitted. 
However, the requester may be informed that suggestions and complaints 
concerning the information security program prescribed by Executive 
Order 12356 may be submitted to the Director, Information Security 
Oversight Office, GSA(AT), Washington, DC 20540.



Sec. 503.59  Safeguarding classified information.

    (a) All classified information shall be afforded a level of 
protection against unauthorized disclosure commensurate with its level 
of classification.
    (b) Whenever classified material is removed from a storage facility, 
such material shall not be left unattended and shall be protected by 
attaching an appropriate classified document cover sheet to each 
classified document.
    (c) Classified information being transmitted from one Commission 
office to another shall be protected with a classified document cover 
sheet and hand delivered by an appropriately cleared person to another 
appropriately cleared person.
    (d) Classified information shall be made available to a person only 
when the possessor of the classified information has determined that the 
person seeking the classified information has a valid security clearance 
at least commensurate with the level of classification of the 
information and has established that access is essential to the 
accomplishment of authorized and lawful Government purposes.
    (e) The requirement in paragraph (d) of this section, that access to 
classified information may be granted only as is essential to the 
accomplishment of authorized and lawful Government purposes, may be 
waived as provided in paragraph (f) of this section for persons who:
    (1) Are engaged in historical research projects, or
    (2) Previously have occupied policy-making positions to which they 
were appointed by the President.
    (f) Waivers under paragraph (e) of this section may be granted when 
the Commission Security Officer:
    (1) Determines in writing that access is consistent with the 
interest of national security;
    (2) Takes appropriate steps to protect classified information from 
unauthorized disclosure or compromise, and ensures that the information 
is properly safeguarded; and
    (3) Limits the access granted to former presidential appointees to 
items that the person originated, reviewed, signed, or received while 
serving as a presidential appointee.
    (g) Persons seeking access to classified information in accordance 
with paragraphs (e) and (f) of this section must agree in writing:
    (1) To be subject to a national security check;
    (2) To protect the classified information in accordance with the 
provisions of Executive Order 12356; and
    (3) Not to publish or otherwise reveal to unauthorized persons any 
classified information.
    (h) Except as provided by directives issued by the President through 
the National Security Council, classified information that originated in 
another agency may not be disseminated outside the Commission.

[[Page 105]]

    (i) Only appropriately cleared personnel may receive, transmit, and 
maintain current access and accountability records for classified 
material.
    (j) Each office which has custody of classified material shall 
maintain:
    (1) A classified document register or log containing a listing of 
all classified holdings, and
    (2) A classified document destruction register or log containing the 
title and date of all classified documents that have been destroyed.
    (k) An inventory of all documents classified higher than 
confidential shall be made at least annually and whenever there is a 
change in classified document custodians. The Commission Security 
Officer shall be notified, in writing, of the results of each inventory.
    (l) Reproduced copies of classified documents are subject to the 
same accountability and controls as the original documents.
    (m) Combinations to dial-type locks shall be changed only by persons 
having an appropriate security clearance, and shall be changed whenever 
such equipment is placed in use; whenever a person knowing the 
combination no longer requires access to the combination; whenever a 
combination has been subject to possible compromise; whenever the 
equipment is taken out of service; and at least once each year. Records 
of combinations shall be classified no lower than the highest level of 
classified information to be stored in the security equipment concerned. 
One copy of the record of each combination shall be provided to the 
Commission Security Officer.
    (n) Individuals charged with the custody of classified information 
shall conduct the necessary inspections within their areas to insure 
adherence to procedural safeguards prescribed to protect classified 
information. The Commission Security Officer shall conduct periodic 
inspections to determine if the procedural safeguards prescribed in this 
subpart are in effect at all times.
    (o) Whenever classified material is to be transmitted outside the 
Commission, the custodian of the classified material shall contact the 
Commission Security Officer for preparation and receipting instructions. 
If the material is to be hand carried, the Security Officer shall ensure 
that the person who will carry the material has the appropriate security 
clearance, is knowledgeable of safeguarding requirements, and is 
briefed, if appropriate, concerning restrictions with respect to 
carrying classified material on commercial carriers.
    (p) Any person having access to and possession of classified 
information is responsible for protecting it from persons not authorized 
access to it, to include securing it in approved equipment or 
facilities, whenever it is not under the direct supervision of 
authorized persons.
    (q) Employees of the Commission shall be subject to appropriate 
sanctions, which may include reprimand, suspension without pay, removal, 
termination of classification authority, loss or denial of access to 
classified information, or other sanctions in accordance with applicable 
law and agency regulation, if they:
    (1) Knowingly, willfully, or negligently disclose to unauthorized 
persons information properly classified under Executive Order 12356 or 
predecessor orders;
    (2) Knowingly and willfully classify or continue the classification 
of information in violation of Executive Order 12356 or any implementing 
directive; or
    (3) Knowingly and willfully violate any other provision of Executive 
Order 12356 or implementing directive.
    (r) Any person who discovers or believes that a classified document 
is lost or compromised shall immediately report the circumstances to his 
or her supervisor and the Commission Security Officer, who shall conduct 
an immediate inquiry into the matter.
    (s) Questions with respect to the Commission Information Security 
Program, particularly those concerning the classification, 
declassification, downgrading, and safeguarding of classified 
information, shall be directed to the Commission Security Officer.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]

[[Page 106]]



  Subpart G--Access to Any Record of Identifiable Personal Information



Sec. 503.60  Definitions.

For the purpose of this subpart:
    (a) Agency means each authority of the government of the United 
States as defined in 5 U.S.C. 551(1) and shall include any executive 
department, military department, government corporation, government 
controlled corporation or other establishment in the executive branch of 
the government (including the Executive Office of the President), or any 
independent regulatory agency.
    (b) Commission means the Federal Maritime Commission.
    (c) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence to whom a record pertains.
    (d) Maintain includes maintain, collect, use, or disseminate.
    (e) Person means any person not an individual and shall include, but 
is not limited to, corporations, associations, partnerships, trustees, 
receivers, personal representatives, and public or private 
organizations.
    (f) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Federal Maritime 
Commission, including but not limited to a person's education, financial 
transactions, medical history, and criminal or employment history, and 
that contains the person's name, or the identifying number, symbol or 
other identifying particular assigned to the individual, such as a 
finger or voice print, or a photograph.
    (g) Routine use means [with respect to the disclosure of a record], 
the use of such records for a purpose which is compatible with the 
purpose for which it was collected.
    (h) Statistical record means a record in a system of records, 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, but shall not include matter pertaining to the 
Census as defined in 13 U.S.C. 8.
    (i) System of records means a group of any records under the control 
of the Commission from which information is retrieved by the name of the 
individual or by some identifying number, symbol or other identifying 
particular assigned to the individual.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.61  Conditions of disclosure.

    (a) Subject to the conditions of paragraphs (b) and (c) of this 
section, the Commission shall not disclose any record which is contained 
in a system of records, by any means of communication, to any person or 
other agency who is not an individual to whom the record pertains.
    (b) Upon written request or with prior written consent of the 
individual to whom the record pertains, the Commission may disclose any 
such record to any person or other agency.
    (c) In the absence of a written consent from the individual to whom 
the record pertains, the Commission may disclose any such record, 
provided such disclosure is:
    (1) To those officers and employees of the Commission who have a 
need for the record in the performance of their duties;
    (2) Required under the Freedom of Information Act (5 U.S.C 552);
    (3) For a routine use;
    (4) To the Bureau of Census for purposes of planning or carrying out 
a census or survey or related activity under the provisions of title 13 
U.S.C.;
    (5) To a recipient who has provided the Commission with adequate 
advance written assurance that the record will be used solely as a 
statistical research or reporting record, and the record is to be 
transferred in a form that is not individually identifiable;
    (6) To the National Archives of the United States, as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States government, or for evaluation by the 
Administrator of General Services or his designee to determine whether 
the record has such value; --
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of

[[Page 107]]

the United States for a civil or criminal law enforcement activity 
authorized by law, provided the head of the agency or instrumentality 
has made a prior written request to the Secretary of the Commission 
specifying the particular record and the law enforcement activity for 
which it is sought;
    (8) To either House of Congress, and to the extent of a matter 
within its jurisdiction, any committee, subcommittee, or joint committee 
of Congress;
    (9) To the Comptroller General, or any authorized representative, 
thereof, in the course of the performance of the duties of the GAO; or
    (10) Under an order of a court of competent jurisdiction.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.62  Accounting of disclosures.

    (a) The Secretary shall make an accounting of each disclosure of any 
record contained in a system of records in accordance with 5 U.S.C. 
552a(c)(1) and 552a(c)(2).
    (b) Except for a disclosure made under Sec. 503.61(c)(7), the 
Secretary shall make the accounting described in paragraph (a) of this 
section available to any individual upon written request made in 
accordance with Sec. 503.63(b) or Sec. 503.63(c).
    (c) The Secretary shall make reasonable efforts to notify the 
individual when any record which pertains to such individual is 
disclosed to any person under compulsory legal process, when such 
process becomes a matter of public record.



Sec. 503.63  Request for information.

    (a) Upon request, in person or by mail, made in accordance with the 
provisions of paragraph (b) or (c) of this section, any individual shall 
be informed whether or not any Commission system of records contains a 
record pertaining to him or her.
    (b) Any individual requesting such information in person shall 
personally appear at the Office of the Secretary, Federal Maritime 
Commission, 800 North Capitol Street, NW, Washington, DC 20573 and 
shall:
    (1) Provide information sufficient, in the opinion of the Secretary, 
to identify the record, e.g., the individual's own name, date of birth, 
place of birth, etc.;
    (2) Provide identification acceptable to the Secretary to verify the 
individual's identity, e.g., driver's license, employee identification 
card or medicare card;
    (3) Complete and sign the appropriate form provided by the 
Secretary.
    (c) Any individual requesting such information by mail shall address 
such request to the Secretary, Federal Maritime Commission, 800 North 
Capitol Street, NW, Washington, DC 20573 and shall include in such 
request the following:
    (1) Information sufficient in the opinion of the Secretary to 
identify the record, e.g., the individual's own name, date of birth, 
place of birth, etc.;
    (2) A signed notarized statement to verify his or her identity.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 63 
FR 50535, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, in 
Sec. 503.63, the introductory texts of paragraphs (b) and (c) were 
revised, effective Nov. 2, 1998. For the convenience of the user, the 
superseded text is set forth as follows:

Sec. 503.63  Request for information.

                                * * * * *

    (b) Any individual requesting such information in person shall 
personally appear at the Office of the Secretary, Federal Maritime 
Commission, 1100 L Street, NW., Washington, DC 20573 and shall:

                                * * * * *

    (c) Any individual requesting such information by mail shall address 
such request to the Secretary, Federal Maritime Commission, 1100 L 
Street, NW., Washington, DC 20573 and shall include in such request the 
following:

                                * * * * *



Sec. 503.64  Commission procedure on request for information.

    Upon request for information made in accordance with Sec. 503.63, 
the Secretary or his or her delegate shall, within 10 days (excluding 
Saturdays, Sundays, and legal public holidays), furnish in writing to 
the requesting

[[Page 108]]

party notice of the existence or nonexistence of any records described 
in such request.



Sec. 503.65  Request for access to records.

    (a) General. Upon request by any individual made in accordance with 
the procedures set forth in paragraph (b) of this section, such 
individual shall be granted access to any record pertaining to him or 
her which is contained in a Commission system of records. However, 
nothing in this section shall allow an individual access to any 
information compiled by the Commission in reasonable anticipation of a 
civil or criminal action or proceeding.
    (b) Procedures for requests for access to records. Any individual 
may request access to a record pertaining to him or her in person or by 
mail in accordance with paragraphs (b) (1) and (2) of this section:
    (1) Any individual making such request in person shall do so at the 
Office of the Secretary, Federal Maritime Commission, 800 North Capitol 
Street, NW, Washington, DC 20573 and shall:
    (i) Provide identification acceptable to the Secretary to verify the 
individual's identity, e.g., driver's license, employee identification 
card, or medicare card; and
    (ii) Complete and sign the appropriate form provided by the 
Secretary.
    (2) Any individual making a request for access to records by mail 
shall address such request to the Secretary, Federal Maritime 
Commission, 800 North Capitol Street, NW, Washington, DC 20573 and shall 
include therein a signed, notarized statement to verify his or her 
identity.
    (3) Any individual requesting access to records under this section 
in person may be accompanied by a person of his or her own choosing, 
while reviewing the record requested. If an individual elects to be so 
accompanied, he or she shall notify the Secretary of such election in 
the request and shall provide a written statement authorizing disclosure 
of the record in the presence of the acompanying person. Failure to so 
notify the Secretary in a request for access shall be deemed to be a 
decision by the individual not to be accompanied.
    (c) Commission determination of requests for access. (1) Upon 
request made in accordance with this section, the Secretary or his or 
her delegate shall:
    (i) Determine whether or not such request shall be granted;
    (ii) Make such determination and provide notification within 10 days 
(excluding Saturdays, Sundays, and legal public holidays) after receipt 
of such request, and, if such request is granted shall:
    (iii) Notify the individual that fees for reproducing copies will be 
made in accordance with Sec. 503.69.
    (2) If access to a record is denied because such information has 
been compiled by the Commission in reasonable anticipation of a civil or 
criminal action or proceeding, or for any other reason, the Secretary 
shall notify the individual of such determination and his or her right 
to judicial appeal under 5 U.S.C. 552a(g).
    (d) Manner of providing access. (1) If access is granted, the 
individual making such request shall notify the Secretary whether the 
records requested are to be copied and mailed to the individual.
    (2) If records are to be made available for personal inspection, the 
individual shall arrange with the Secretary a mutually agreeable time 
and place for inspection of the record.
    (3) Fees for reproducing and mailing copies of records will be made 
in accordance with Sec. 503.69.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 63 
FR 50535, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50535, Sept. 22, 1998, in 
Sec. 503.65, the introductory text of paragraph (b)(1) and paragraph 
(b)(2) were revised, effective Nov. 2, 1998. For the convenience of the 
user, the superseded text is set forth as follows:

Sec. 503.65  Request for access to records.

                                * * * * *

    (b) * * *
    (1) Any individual making such request in person shall do so at the 
Office of the Secretary, Federal Maritime Commission, 1100 L Street, 
NW., Washington, DC 20573 and shall:

                                * * * * *

[[Page 109]]

    (2) Any individual making a request for access to records by mail 
shall address such request to the Secretary, Federal Maritime 
Commission, 1100 L Street, NW., Washington, DC 20573, and shall include 
therein a signed notarized statement to verify his or her identity.

                                * * * * *



Sec. 503.66  Amendment of a record.

    (a) General. Any individual may request amendment of a record 
pertaining to him or her according to the procedure in paragraph (b) of 
this section.
    (b) Procedures for requesting amendment of a record. After 
inspection of a record pertaining to him or her, an individual may file 
with the Secretary a request, in person or by mail, for amendment of a 
record. Such request shall specify the particular portions of the record 
to be amended, the desired amendments and the reasons therefor.
    (c) Commission procedures on request for amendment of a record. (1) 
Not later than ten (10) days (excluding Saturdays, Sundays, and legal 
public holidays) after the date of receipt of a request made in 
accordance with this section to amend a record in whole or in part, the 
Secretary or his or her delegate shall:
    (i) Make any correction of any portion of the record which the 
individual believes is not accurate, relevant, timely or complete and 
thereafter inform the individual of such correction; or
    (ii) Inform the individual, by certified mail, return receipt 
requested, of refusal to amend the record, setting out the reasons 
therefor, and notify the individual of his or her right to appeal that 
determination to the Chairman of the Commission under Sec. 503.67.
    (2) The Secretary shall inform any person or other agency to whom a 
record has been disclosed of any correction or notation of dispute made 
by the Secretary with respect to such records, in accordance with 5 
U.S.C. 552a(c)(4) referring to amendment of a record, if an accounting 
of such disclosure has been made.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.67  Appeals from denial of request for amendment of a record.

    (a) General. An individual whose request for amendment of a record 
pertaining to him or her is denied, may further request a review of such 
determination in accordance with paragraph (b) of this section.
    (b) Procedure for appeal. Not later than thirty (30) days (excluding 
Saturdays, Sundays, and legal public holidays) following receipt of 
notification of refusal to amend, an individual may file an appeal to 
amend the record. Such appeal shall:
    (1) Be addressed to the Chairman, Federal Maritime Commission, 800 
North Capitol Street, NW, Washington, DC 20573; and
    (2) Specify the reasons for which the refusal to amend is 
challenged.
    (c) Commission procedure on appeal. (1) Upon appeal from a denial to 
amend a record, the Chairman of the Commission or the officer designated 
by the Chairman to act in his or her absence, shall make a determination 
whether or not to amend the record and shall notify the individual of 
that determination by certified mail, return receipt requested, not 
later than thirty (30) days (excluding Saturdays, Sundays and legal 
public holidays) after receipt of such appeal, unless extended pursuant 
to paragraph (d) of this section.
    (2) The Chairman shall also notify the individual of the provisions 
of 5 U.S.C. 552a(g)(1)(A) regarding judicial review of the Chairman's 
determination.
    (3) If, on appeal, the refusal to amend the record is upheld, the 
Commission shall permit the individual to file a statement setting forth 
the reasons for disagreement with the Commission's determination.
    (d) The Chairman, or his or her delegate in his or her absence, may 
extend up to thirty (30) days the time period prescribed in paragraph 
(c)(1) of this section within which to make a determination on an appeal 
from refusal to amend a record for the reasons that a fair and equitable 
review cannot be completed within the prescribed time period.

[49 FR 44401, Nov. 6, 1984, as amended at 63 FR 50536, Sept. 22, 1998]

[[Page 110]]


    Effective Date Note:  At 63 FR 50536, Sept. 22, 1998, in 
Sec. 503.67, paragraph (b)(1) was revised, effective Nov. 2, 1998. For 
the convenience of the user, the superseded text is set forth as 
follows:

Sec. 503.67  Appeals from denial of request for amendment of a record.

                                * * * * *

    (b) * * *
    (1) Be addressed to the Chairman, Federal Maritime Commission, 1100 
L Street, NW, Washington, DC 20573; and

                                * * * * *



Sec. 503.68  Exemptions.

    (a) The system of records designated FMC-25 Inspector General File 
is exempt from the provisions of 5 U.S.C. 552a except subsections (b), 
(c) (1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and 
(11) and (i) to the extent it contains information meeting the criteria 
of 5 U.S.C. 552a(j)(2) pertaining to the enforcement of criminal laws. 
Exemption is appropriate to avoid compromise of ongoing investigations, 
disclosure of the identity of confidential sources and unwarranted 
invasions of personal privacy of third parties.
    (b) The following systems of records are exempt from the provisions 
of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f), 
which otherwise require the Commission, among other things, to provide 
the individual named in the records an accounting of disclosures and 
access to and opportunity to amend the records. The scope of the 
exemptions and the reasons therefor are described for each particular 
system of records.
    (1) FMC-1  Personnel Security File. All information about 
individuals that meets the criteria of 5 U.S.C. 552a(k)(5), regarding 
suitability, eligibility or qualifications for Federal civilian 
employment or for access to classified information, to the extent that 
disclosure would reveal the identity of a source who furnished 
information to the Commission under a promise of confidentiality. 
Exemption is required to honor promises of confidentiality.
    (2) FMC-7  Licensed Ocean Freight Forwarders File. All information 
that meets the criteria of 5 U.S.C. 552a(k)(2) regarding investigatory 
materials compiled for law enforcement purposes. Exemption is 
appropriate to avoid compromise of ongoing investigations, disclosure of 
the identity of confidential sources and unwarranted invasions of 
personal privacy of third parties.
    (3) FMC-22  Investigatory Files. All information that meets the 
criteria of 5 U.S.C. 552a(k)(2) regarding investigatory material 
compiled for law enforcement purposes. Exemption is appropriate to avoid 
compromise of ongoing investigations, disclosure of the identity of 
confidential sources and unwarranted invasions of personal privacy of 
third parties.
    (4) FMC-24  Informal Inquiries and Complaint Files. All information 
that meets the criteria of 5 U.S.C. 552a(k)(2) regarding investigatory 
material compiled for law enforcement purposes. Exemption is appropriate 
to avoid compromise of ongoing investigations, disclosure of the 
identity of confidential sources and unwarranted invasion of personal 
privacy of third parties.
    (5) FMC-25  Inspector General File. (i) All information that meets 
the criteria of 5 U.S.C. 552a(k)(2) regarding investigatory material 
compiled for law enforcement purposes. Exemption is appropriate to avoid 
compromise of ongoing investigations, disclosure of the identity of 
confidential sources and unwarranted invasions of personal privacy of 
third parties.
    (ii) All information about individuals that meets the criteria of 5 
U.S.C. 552a(k)(5), regarding suitability, eligibility or qualifications 
for Federal civilian employment or for access to classified information, 
to the extent the disclosure would reveal the identity of a source who 
furnished information to the Commission under the promises of 
confidentiality. Exemption is required to honor promises of 
confidentiality.
    (6) FMC-26  Administrative Grievance File. (i) All information that 
meets the criteria of 5 U.S.C. 552a(k)(2) regarding investigatory 
material compiled for law enforcement purposes, Exemption is appropriate 
to avoid compromise of ongoing investigations, disclosure of the 
identity of confidential sources and unwarranted invasions of personal 
privacy of third parties.

[[Page 111]]

    (ii) All information about individuals that meets the criteria of 5 
U.S.C. 552a(k)(5), regarding suitability, eligibility or qualification 
for Federal civilian employment or for access to classified information, 
to the extent that disclosure would reveal the identity of a source who 
furnished information to the Commission under a promise of 
confidentiality. Exemption is required to honor promises of 
confidentiality.

[59 FR 15636, Apr. 4, 1994]



Sec. 503.69  Fees.

    (a) General. The following Commission services are available, with 
respect to requests made under the provisions of this subpart, for which 
fees will be charged as provided in paragraphs (b) and (c) of this 
section:
    (1) Copying records/documents.
    (2) Certification of copies of documents.
    (b) Fees for services. The fees set forth below provide for 
documents to be mailed with ordinary first-class postage prepaid. If a 
copy is to be transmitted by registered, certified, air, or special 
delivery mail, postage therefor will be added to the basic fee. Also, if 
special handling or packaging is required, costs thereof will be added 
to the basic fee.
    (1) The copying of records and documents will be available at the 
rate of five cents per page (one side), limited to size 8\1/4\'' x 14'' 
or smaller.
    (2) The certification and validation (with Federal Maritime 
Commission seal) of documents filed with or issued by the Commission 
will be available at $55 for each certification.
    (c) Payment of fees and charges. The fees charged for special 
services may be paid by check, draft, or postal money order, payable to 
the Federal Maritime Commission.

[49 FR 44401, Nov. 6, 1984, as amended at 59 FR 59171, Nov. 16, 1994; 63 
FR 50536, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50536, Sept. 22, 1998, in 
Sec. 503.69, paragraph (b)(2) was revised, effective Nov. 2, 1998. For 
the convenience of the user, the superseded text is set forth as 
follows:

Sec. 503.69  Fees.

                                * * * * *

    (b) * * *
    (2) The certification and validation (with Federal Maritime 
Commission seal) of documents filed with or issued by the Commission 
will be available at $70 for each certification.

                                * * * * *



 Subpart H--Public Observation of Federal Maritime Commission Meetings 
   and Public Access to Information Pertaining to Commission Meetings



Sec. 503.70  Policy.

    It is the policy of the Federal Maritime Commission, under the 
Provisions of the ``Government in the Sunshine Act'' (5 U.S.C. 552b, 
Sept. 13, 1976) to entitle the public to the fullest practicable 
information regarding the decisional processes of the Commission. The 
provisions of this subpart set forth the procedural requirements 
designed to provide the public with such information while continuing to 
protect the rights of individuals and to maintain the capabilities of 
the Commission in carrying out its responsibilities under the shipping 
statutes administered by this Commission.



Sec. 503.71  Definitions.

    The following definitions apply for purposes of this subpart:
    (a) Agency means the Federal Maritime Commission;
    (b) Information pertaining to a meeting means, but is not limited to 
the following: the record of any agency vote taken under the provisions 
of this subpart, and the record of the vote of each member; a full 
written explanation of any agency action to close any portion of any 
meeting under this subpart; lists of persons expected to attend any 
meeting of the agency and their affiliation; public announcement by the 
agency under this subpart of the time, place, and subject matter of any 
meeting or portion of any meeting; announcement of whether any meeting 
or portion of any meeting shall be open to public observation or be 
closed; any announcement of any change regarding any meeting or portion 
of any meeting; and the name and telephone number of the Secretary of 
the agency who shall

[[Page 112]]

be designated by the agency to respond to requests for information 
concerning any meeting or portion of any meeting;
    (c) Meeting means the deliberations of at least three of the members 
of the agency which determine or result in the joint conduct of 
disposition of official agency business, but does not include:
    (1) Individual member's consideration of official agency business 
circulated to the members in writing for disposition on notation;
    (2) Deliberations by the agency in determining whether or not to 
close a portion or portions of a meeting or series of meetings as 
provided in Secs. 503.74 and 503.75;
    (3) Deliberations by the agency in determining whether or not to 
withhold from disclosure information pertaining to a portion or portions 
of a meeting or series of meetings as provided in Sec. 503.80; or
    (4) Deliberations pertaining to any change in any meeting or to 
changes in the public announcement of such a meeting as provided in 
Sec. 503.83;
    (d) Member means each individual Commissioner of the agency;
    (e) Person means any individual, partnership, corporation, 
association, or public or private organization, other than an agency as 
defined in 5 U.S.C. 551(1));
    (f) Series of meetings means more than one meeting involving the 
same particular matters and scheduled to be held no more than thirty 
(30) days after the initial meeting in such series.



Sec. 503.72  General rule--meetings.

    (a) Except as otherwise provided in Secs. 503.73, 503.74, 503.75 and 
503.76, every portion of every meeting and every portion of a series of 
meetings of the agency shall be open to public observation.
    (b) The opening of a portion or portions of a meeting or a portion 
or portions of a series of meetings to public observation shall not be 
construed to include any participation by the public in any manner in 
the meeting. Such an attempted participation or participation shall be 
cause for removal of any person so engaged at the discretion of the 
presiding member of the agency.



Sec. 503.73  Exceptions--meetings.

    Except in a case where the agency finds that the public interest 
requires otherwise, the provisions of Sec. 503.72(a) shall not apply to 
any portion or portions of an agency meeting or portion or portions of a 
series of meetings where the agency determined under the provisions of 
Sec. 503.74 or Sec. 503.75 that such portion or portions of such meeting 
or series of meetings is likely to:
    (a) Disclose matters that are (1) specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interests of national defense or foreign policy and (2) in fact properly 
classified pursuant to such Executive order;
    (b) Relate solely to the internal personnel rules and practices of 
any agency;
    (c) Disclose matters specifically exempted from disclosure by any 
statute other than 5 U.S.C. 552 (FOIA), provided that such statute (1) 
requires that the matter be withheld from the public in such a manner as 
to leave no discretion on the issue, or (2) establishes particular 
criteria for withholding or refers to particular types of matters to be 
withheld;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime, or formally censuring 
any person;
    (f) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which, if written, would be contained in such 
records, but only to the extent that the production of such records or 
information would
    (1) Interfere with enforcement proceedings,
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (3) Constitute an unwarranted invasion of personal privacy,
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency

[[Page 113]]

conducting a lawful national security intelligence investigation, 
confidential information furnished only by the confidential source,
    (5) Disclose investigative techniques and procedures, or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions;
    (i) Disclose information, the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed agency 
action unless the agency has already disclosed to the public the content 
or nature of its proposed action, or where the agency is required by law 
to make such disclosure on its own initiative prior to taking final 
agency action on such proposal; or
    (j) Specifically concern the agency's issuance of a subpena, or the 
agency's participation in a civil action or proceeding, an action in a 
foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 
or otherwise involving a determination on the record after opportunity 
for a hearing.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.74  Procedures for closing a portion or portions of a meeting or a portion or portions of a series of meetings on agency initiated requests.

    (a) Any member of the agency, the Managing Director or the General 
Counsel of the agency may request that any portion or portions of a 
series of meetings be closed to public observation for any of the 
reasons provided in Sec. 503.73 by submitting such request in writing to 
the Secretary of the agency in sufficient time to allow the Secretary to 
schedule a timely vote on the request pursuant to paragraph (b) of this 
section.
    (b) Upon receipt of any request made under paragraph (a) of this 
section, the Secretary of the agency shall schedule a time at which the 
members of the agency shall vote upon the request, which vote shall take 
place not later then eight (8) days prior to the scheduled meeting of 
the agency.
    (c) At the time the Secretary schedules a time for an agency vote as 
described in paragraph (b) of this section, he or she shall forward the 
request to the General Counsel of the agency who shall act upon such 
request as provided in Sec. 503.77.
    (d) At the time scheduled by the Secretary as provided in paragraph 
(b) of this section, the members of the agency, upon consideration of 
the request submitted under paragraph (a) of this section and 
consideration of the certified opinion of the General Counsel of the 
agency provided to the members under Sec. 503.77, shall vote upon that 
request. That vote shall determine whether or not any portion or 
portions of a meeting may be closed to public observation for any of the 
reasons provided in Sec. 503.73, and whether or not the public interest 
requires that the portion or portions of the meeting or meetings remain 
open, notwithstanding the applicability of any of the reasons provided 
in Sec. 503.73 permitting the closing of any meeting to public 
observation.
    (e) In the case of a vote on a request under this section to close 
to public observation a portion or portions of a meeting, no such 
portion or portions of any meeting may be closed unless, by a vote on 
the issues described in paragraph (d) of this section, a majority of the 
entire membership of the agency shall vote to close such portion or 
portions of a meeting by recorded vote.
    (f) In the case of a vote on a request under this section to close 
to public observation a portion or portions of a series of meetings as 
defined in Sec. 503.71, no such portion or portions of a series of 
meetings may be closed unless, by a vote on the issues described in 
paragraph (d) of this section, a majority of the entire membership of 
the agency shall vote to close such portion or portions of a series of 
meetings. A determination to close to public observation a portion or 
portions of a series of meetings may be accomplished by a

[[Page 114]]

single vote on each of the issues described in paragraph (d) of this 
section, provided that the vote of each member of the agency shall be 
recorded and the vote shall be cast by each member and not by proxy 
vote.

[49 FR 44401, Nov. 6, 1984, as amended at 55 FR 38330, Sept. 18, 1990]



Sec. 503.75  Procedures for closing a portion of a meeting on request initiated by an interested person.

    (a) Any person as defined in Sec. 503.71, whose interests may be 
directly affected by a portion of a meeting of the agency, may request 
that the agency close that portion of a meeting for the reason that 
matters in deliberation at that portion of the meeting are such that 
public disclosure of that portion of a meeting is likely to:
    (1) Involve accusing any person of a crime, or formally censuring 
any person;
    (2) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy; or
    (3) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would:
    (i) Interfere with enforcement proceedings;
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (iii) Constitute an unwarranted invasion of personal privacy;
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (v) Disclose investigative techniques and procedures; or
    (vi) Endanger the life or physical safety of law enforcement 
personnel.
    (b) Any person described in paragraph (a) of this section who 
submits a request that a portion of a meeting be closed shall submit an 
original and 15 copies of that request to the Secretary, Federal 
Maritime Commission, Washington, DC 20573, and shall state with 
particularity that portion of a meeting sought to be closed and the 
reasons therefor as described in paragraph (a) of this section.
    (c) Upon receipt of any request made under paragraphs (a) and (b) of 
this section, the Secretary of the agency shall:
    (1) Furnish a copy of the request to each member of the agency; and
    (2) Furnish a copy of the request to the General Counsel of the 
agency.
    (d) Upon receipt of a request made under paragraphs (a) and (b) of 
this section, any member of the agency may request agency action upon 
the request to close a portion of a meeting by notifying the Secretary 
of the agency of that request for agency action.
    (e) Upon receipt of a request for agency action under paragraph (d) 
of this section, the Secretary of the agency shall schedule a time for 
an agency vote upon the request of the person whose interests may be 
directly affected by a portion of a meeting, which vote shall take place 
prior to the scheduled meeting of the agency.
    (f) At the time the Secretary receives a request for agency action 
and schedules a time for an agency vote as described in paragraph (e) of 
this section, the request of the person whose interests may be directly 
affected by a portion of a meeting shall be forwarded to the General 
Counsel of the agency who shall act upon such request as provided in 
Sec. 503.77.
    (g) At the time scheduled by the Secretary, as provided in paragraph 
(e) of this section, the members of the agency, upon consideration of 
the request of the person whose interests may be directly affected by a 
portion of a meeting submitted under paragraphs (a) and (b) of this 
section, and consideration of the certified opinion of the General 
Counsel of the agency provided to the members under Sec. 503.77, shall 
vote upon that request. That vote shall determine whether or not any 
portion or portions of a meeting or portion or portions of a series of 
meetings may be closed to public observation for any of the reasons 
provided in paragraph (a) of this section, and whether or not the public 
interest requires that the portion or

[[Page 115]]

portions of the meeting or meetings remain open, notwithstanding the 
applicability of any of the reasons provided in paragraph (a) of this 
section permitting the closing of any portion of any meeting to public 
observation.
    (h) In the case of a vote on a request under this section to close 
to public observation a portion of a meeting, no such portion of a 
meeting may be closed unless, by a vote on the issues described in 
paragraph (g) of this section, a majority of the entire membership of 
the agency shall vote to close such portion of a meeting by a recorded 
vote.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.76  Effect of vote to close a portion or portions of a meeting or series of meetings.

    (a) Where the agency votes as provided in Sec. 503.74 or 
Sec. 503.75, to close to public observation a portion or portions of a 
meeting or a portion or portions of a series of meetings, the portion or 
portions of a meeting or the portion or portions of a series of meetings 
shall be closed.
    (b) Except as otherwise provided in Secs. 503.80, 503.81 and 503.82, 
not later than the day following the day on which a vote is taken under 
Sec. 503.74 or Sec. 503.75, by which it is determined to close a portion 
or portions of a meeting or a portion or portions of a series of 
meetings to public observation, the Secretary shall make available to 
the public:
    (1) A written copy of the recorded vote reflecting the vote of each 
member of the agency;
    (2) A full written explanation of the agency action closing that 
portion or those portions to public observation; and
    (3) A list of the names and affiliations of all persons expected to 
attend the portion or portions of the meeting or the portion or portions 
of a series of meetings.
    (c) Except as otherwise provided in Secs. 503.80, 503.81 and 503.82, 
not later than the day following the day on which a vote is taken under 
Sec. 503.74, or Sec. 503.75, by which it is determined that the portion 
or portions of a meeting or the portion or portions of a series of 
meetings shall remain open to public observation, the Secretary shall 
make available to the public a written copy of the recorded vote 
reflecting the vote of each member of the agency.



Sec. 503.77  Responsibilities of the General Counsel of the agency upon a request to close any portion of any meeting.

    (a) Upon any request that the agency close a portion or portions of 
any meeting or any portion or portions of any series of meetings under 
the provisions of Secs. 503.74 and 503.75, the General Counsel of the 
agency shall certify in writing to the agency, prior to an agency vote 
on that request, whether or not in his or her opinion the closing of any 
such portion or portions of a meeting or portion or portions of a series 
of meetings is proper under the provisions of this subpart and the terms 
of the Government in the Sunshine Act (5 U.S.C. 552b). If, in the 
opinion of the General Counsel, the closing of a portion or portions of 
a meeting or portion or portions of a series of meetings is proper under 
the provisions of this subpart and the terms of the Government in the 
Sunshine Act (5 U.S.C. 552b), his or her certification of that opinion 
shall cite each applicable, particular, exemptive provision of that Act 
and provision of this subpart.
    (b) A copy of the certification of the General Counsel as described 
in paragraph (a) of this section, together with a statement of the 
officer presiding over the portion or portions of any meeting or the 
portion or portions of a series of meetings setting forth the time and 
place of the relevant meeting or meetings, and the persons present, 
shall be maintained by the Secretary for public inspection.



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 Secs. 503.79, 503.80 and 503.81.
    (b) All inquiries as to the status of pending matters which were 
considered by the Commission in closed session

[[Page 116]]

should be directed to the Secretary of the Commission. Commission 
personnel who attend closed meetings of the Commission are prohibited 
from disclosing anything that occurs during those meetings. An 
employee's failure to respect the confidentiality of closed meetings 
constitutes a violation of Commission's General Standards of Conduct. 
The Commission can, of course, determine to make public the events or 
decisions occurring in a closed meeting, such information to be 
disseminated by the Office of the Secretary. An inquiry to the Office of 
the Secretary as to whether any information has been made public is not, 
therefore, improper. However, a request of or attempt to persuade a 
Commission employee to divulge the contents of a closed meeting 
constitutes a lack of proper professional conduct inappropriate to a 
person practicing before this agency, and requires that the employee 
file a report of such event so that a determination can be made whether 
disciplinary action should be initiated pursuant to Sec. 502.30 of this 
chapter.



Sec. 503.79  Exceptions--information pertaining to meeting.

    Except in a case where the agency finds that the public interest 
requires otherwise, information pertaining to a portion or portions of a 
meeting or portion or portions of a series of meetings need not be 
disclosed by the agency if the agency determines, under the provisions 
of Secs. 503.80 and 503.81 that disclosure of that information is likely 
to disclose matters which are:
    (a) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interests of national defense 
or foreign policy and in fact properly classified pursuant to such 
Executive order;
    (b) Related solely to the internal personnel rules and practices of 
an agency;
    (c) Specifically exempted from disclosure by any statute other than 
5 U.S.C. 552 (FOIA), provided that such statute (1) requires that the 
matters be withheld from the public in such a manner as to leave no 
discretion on the issue, or (2) establishes particular criteria for 
withholding or refers to particular types of matters to be withheld;
    (d) Trade secrets and commercial or financial information, obtained 
from a person and privileged or confidential;
    (e) Involved with accusing any person of a crime, or formally 
censuring any person;
    (f) Of a personal nature, where disclosure would constitute a 
clearly unwarranted invasion of personal privacy;
    (g) Investigatory records compiled for law enforcement purposes, or 
information which if written would be contained in such records, but 
only to the extent that the production of such record or information 
would
    (1) Interfere with enforcement proceedings,
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (3) Constitute an unwarranted invasion of personal privacy,
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (5) Disclose investigative techniques and procedures, or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Contained in or related to examination, operation, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions;
    (i) Information, the premature disclosure of which would be likely 
to significantly frustrate implementation of a proposed agency action, 
unless the agency has already disclosed to the public the content or 
nature of its proposed action, or where the agency is required by law to 
make such disclosure on its own initiative prior to taking final agency 
action on such proposal; or
    (j) Specifically concerned with the agency's issuance of a subpena, 
the agency's participation in a civil action or proceeding, an action in 
a foreign court or international tribunal, or an arbitration, or the 
initiation, conduct,

[[Page 117]]

or disposition by the agency of a particular case of formal agency 
adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise 
involving a determination on the record after opportunity for a hearing.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.80  Procedures for withholding information pertaining to meeting.

    (a) Any member of the agency, or the General Counsel of the agency 
may request that information pertaining to a portion or portions of a 
meeting or to a portion or portions of a series of meetings be withheld 
from public disclosure for any of the reasons set forth in Sec. 503.79 
by submitting such request in writing to the Secretary not later than 
two (2) weeks prior to the commencement of the first meeting in a series 
of meetings.
    (b) Upon receipt of any request made under paragraph (a) of this 
section, the Secretary shall schedule a time at which the members of the 
agency shall vote upon the request, which vote shall take place not 
later than eight (8) days prior to the scheduled meeting of the agency.
    (c) At the time scheduled by the Secretary in paragraph (b) of this 
section, the Members of the agency, upon consideration of the request 
submitted under paragraph (a) of this section, shall vote upon that 
request. That vote shall determine whether or not information pertaining 
to a meeting may be withheld from public disclosure for any of the 
reasons provided in Sec. 503.79, and whether or not the public interest 
requires that the information be disclosed notwithstanding the 
applicability of the reasons provided in Sec. 503.79 permitting the 
withholding from public disclosure of the information pertaining to a 
meeting.
    (d) In the case of a vote on a request under this section to 
withhold from public disclosure information pertaining to a portion or 
portions of a meeting, no such information shall be withheld from public 
disclosure unless, by a vote on the issues described in paragraph (c) of 
this section, a majority of the entire membership of the agency shall 
vote to withhold such information by recorded vote.
    (e) In the case of a vote on a request under this section to 
withhold information pertaining to a portion or portions of a series of 
meetings, no such information shall be withheld unless, by a vote on the 
issues described in paragraph (c) of this section, a majority of the 
entire membership of the agency shall vote to withhold such information. 
A determination to withhold information pertaining to a portion or 
portions of a series of meetings from public disclosure may be 
accomplished by a single vote on the issues described in paragraph (c) 
of this section, provided that the vote of each member of the agency 
shall be recorded and the vote shall be cast by each member and not by 
proxy vote.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.81  Effect of vote to withhold information pertaining to meeting.

    (a) Where the agency votes as provided in Sec. 503.80 to withhold 
from public disclosure information pertaining to a portion or portions 
of a meeting or portion or portions of a series of meetings, such 
information shall be excepted from the requirements of Secs. 503.78, 
503.82 and 503.83.
    (b) Where the agency votes as provided in Sec. 503.80 to permit 
public disclosure of information pertaining to a portion of portions of 
a meeting or portion or portions of a series of meetings, such 
information shall be disclosed to the public as required by 
Secs. 503.78, 503.82 and 503.83.
    (c) Not later than the day following the date on which a vote is 
taken under Sec. 503.80, by which the information pertaining to a 
meeting is determined to be disclosed, the Secretary shall make 
available to the public a written copy of such vote reflecting the vote 
of each member of the agency on the question.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.82  Public announcement of agency meeting.

    (a) Except as provided in Secs. 503.80 and 503.81 regarding a 
determination to withhold from public disclosure any information 
pertaining to a portion or

[[Page 118]]

portions of a meeting or portion or portions of a series of meetings, or 
as otherwise provided in paragraph (c) of this section, the Secretary of 
the agency shall make public announcement of each meeting of the agency.
    (b) Except as otherwise provided in this section, public 
announcement of each meeting of the agency shall be accomplished not 
later than one week prior to commencement of a meeting or the 
commencement of the first meeting in a series of meetings, and shall 
disclose:
    (1) The time of the meeting;
    (2) The place of the meeting;
    (3) The subject matter of each portion of each meeting or series of 
meetings;
    (4) Whether any portion or portions of a meeting or portion or 
portions of any series of meetings shall be open or closed to public 
observation; and
    (5) The name and telephone number of the Secretary of the agency who 
shall respond to requests for information about a meeting.
    (c) The announcement described in paragraphs (a) and (b) of this 
section may be accomplished less than one week prior to the commencement 
of any meeting or series of meetings, provided the agency determines by 
recorded vote that the agency business requires that any such meeting or 
series of meetings be held at an earlier date. In the event of such a 
determination by the agency, public announcement as described in 
paragraph (b) of this section shall be accomplished at the earliest 
practicable time.
    (d) Immediately following any public announcement accomplished under 
the provisions of this section, the Secretary of the agency shall submit 
a notice for publication in the Federal Register disclosing:
    (1) The time of the meeting;
    (2) The place of the meeting;
    (3) The subject matter of each portion of each meeting or series of 
meetings;
    (4) Whether any portion or portions of a meeting or portion or 
portions of any series of meetings is open or closed to public 
observation; and
    (5) The name and telephone number of the Secretary of the agency who 
shall respond to requests for information about any meeting.
    (e) No comments or further information relating to a particular item 
scheduled for an agency meeting will be accepted by the Secretary for 
consideration subsequent to public announcement of such meeting; except 
that the Commission, on its own initiative, or pursuant to a written 
request, may in its discretion, permit a departure from this limitation 
for exceptional circumstances.

[49 FR 44401, Nov. 6, 1984, as amended at 52 FR 27002, July 17, 1987]



Sec. 503.83  Public announcement of changes in meeting.

    (a) Except as provided in Secs. 503.80 and 503.81, under the 
provisions of paragraphs (b) and (c) of this section, the time or place 
of a meeting or series of meetings may be changed by the agency 
following accomplishment of the announcement and notice required by 
Sec. 503.82, provided the Secretary of the agency shall publicly 
announce such change at the earliest practicable time.
    (b) The subject matter of a portion or portions of a meeting or a 
portion or portions of a series of meetings, the time and place of such 
meeting, and the determination that the portion or portions of a series 
of meetings shall be open or closed to public observation may be changed 
following accomplishment of the announcement required by Sec. 503.82, 
provided:
    (1) The agency, by recorded vote of the majority of the entire 
membership of the agency, determines that agency business so requires 
and that no earlier announcement of the change was possible; and
    (2) The Secretary of the agency publicly announces, at the earliest 
practicable time, the change made and the vote of each member upon such 
change.
    (c) Immediately following any public announcement of any change 
accomplished under the provisions of this section, the Secretary of the 
agency shall submit a notice for publication in the Federal Register 
disclosing:
    (1) The time of the meeting;
    (2) The place of the meeting;
    (3) The subject matter of each portion of each meeting or series of 
meetings;

[[Page 119]]

    (4) Whether any portion or portions of any meeting or any portion or 
portions of any series of meetings is open or closed to public 
observation;
    (5) Any change in paragraphs (c) (1), (c) (2), (c) (3), or (c) (4) 
of this section; and
    (6) The name and telephone number of the Secretary of the agency who 
shall respond to requests for information about any meeting.



Sec. 503.84  [Reserved]



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 this subpart, the 
following records shall be maintained by the Secretary of the agency:
    (1) The certification of the General Counsel of the agency required 
by Sec. 503.77;
    (2) A statement from the officer presiding over the portion or 
portions of the meeting or portion or portions of a series of meetings 
setting forth the time and place of the portion or portions of the 
meeting or portion or portions of the series of meetings, the persons 
present at those times; and
    (3) Except as provided in paragraph (b) of this section, a complete 
transcript or electronic recording fully recording the proceedings at 
each portion of each meeting closed to public observation.
    (b) In case the agency determines to close to public observation any 
portion or portions of any meeting or portion or portions of any series 
of meetings because public observation of such portion or portions of 
any meeting is likely to specifically concern the agency's issuance of a 
subpena, or the agency's participation in a civil action or proceeding, 
an action in a foreign court or international tribunal, or an 
arbitration, or the initiation, conduct, or disposition by the agency of 
a particular case of formal agency adjudication pursuant to the 
procedures in 5 U.S.C. 554 or otherwise involving a determination on the 
record after opportunity for a hearing, the agency may maintain a set of 
minutes in lieu of the transcript or recording described in paragraph 
(a)(3) of this section. Such minutes shall contain:
    (1) A full and clear description of all matters discussed in the 
closed portion of any meeting;
    (2) A full and accurate summary of any action taken on any matter 
discussed in the closed portion of any meeting and the reasons therefor;
    (3) A description of each of the views expressed on any matter upon 
which action was taken as described in paragraph (b)(2) of this section;
    (4) The record of any rollcall vote which shall show the vote of 
each member on the question; and
    (5) An identification of all documents considered in connection with 
any action taken on a matter described in paragraph (b)(1) of this 
section.
    (c) All records maintained by the agency as described in this 
section shall be held by the agency for a period of not less than two 
(2) years following any meeting or not less than one (1) year following 
the conclusion of any agency proceeding with respect to which that 
meeting or portion of a meeting was held.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 503.86  Public access to records.

    (a) All transcripts, electronic recordings or minutes required to be 
maintained by the agency under the provisions of Secs. 503.85(a)(3) and 
503.85(b) shall be promptly made available to the public by the 
Secretary of the agency, except for any item of discussion or testimony 
of any witnesses which the agency determines to contain information 
which may be withheld from public disclosure because its disclosure is 
likely to disclose matters which are:
    (1)(i) specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and (ii) in fact properly classified pursuant to such 
Executive order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by any statute other than 
5 U.S.C. 552 (FOIA), provided that such statute

[[Page 120]]

    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Involved with accusing any person of a crime, or formally 
censuring any person;
    (6) Of a personal nature where disclosure would constitute a clearly 
unwarranted invasion of personal privacy;
    (7) Investigatory records compiled for law enforcement purposes, or 
information which, if written, would be contained in such records, but 
only to the extent that the production of such records or information 
would
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions;
    (9) Information, the premature disclosure of which would be likely 
to significantly frustrate implementation of a proposed agency action, 
unless the agency has already disclosed to the public the content or 
nature of its proposed action, or where the agency is required by law to 
make such disclosure on its own initiative prior to taking final agency 
action on such proposal; or
    (10) Specifically concerned with the agency's issuance of a subpena, 
or the agency's participation in a civil action or proceeding, an action 
in a foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 
or otherwise involving a determination on the record after opportunity 
for a hearing.
    (b) Requests for access to the records described in this section 
shall be made in accordance with procedures described in Secs. 503.31 
through 503.36.
    (c) Records disclosed to the public under this section shall be 
furnished at the expense of the party requesting such access at the 
actual cost of duplication or transcription.



Sec. 503.87  Effect of provisions of this subpart on other subparts.

    (a) Nothing in this subpart shall limit or expand the ability of any 
person to seek access to agency records under subpart D (Secs. 503.31 to 
503.36) of this part except that the exceptions of Sec. 503.86 shall 
govern requests to copy or inspect any portion of any transcript, 
electronic recordings or minutes required to be kept under this subpart.
    (b) Nothing in this subpart shall permit the withholding from any 
individual to whom a record pertains any record required by this subpart 
to be maintained by the agency which record is otherwise available to 
such an individual under the provisions of subpart G of this part.

[49 FR 44401, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



PART 504--PROCEDURES FOR ENVIRONMENTAL POLICY ANALYSIS--Table of Contents




Sec.
504.1  Purpose and scope.
504.2  Definitions.
504.3  General information.
504.4  Categorical exclusions.
504.5  Environmental assessments.
504.6  Finding of no significant impact.
504.7  Environmental impact statements.
504.8  Record of decision.
504.9  Information required by the Commission.
504.10  Time constraints on final administrative actions.

[[Page 121]]

504.91  OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 5 U.S.C. 552, 553; secs. 21 and 43 of the Shipping Act, 
1916 (46 U.S.C. app. 820 and 841a); secs. 13 and 17 of the Shipping Act 
of 1984 (46 U.S.C. app. 1712 and 1716); sec. 102 of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(b)) and sec. 382(b) 
of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6362).

    Source: 49 FR 44415, Nov. 6, 1984, unless otherwise noted.



Sec. 504.1  Purpose and scope.

    (a) This part implements the National Environmental Policy Act of 
1969 (NEPA) and Executive Order 12114 and incorporates and complies with 
the Regulations of the Council on Environmental Quality (CEQ) (40 CFR 
part 1500 et seq.).
    (b) This part applies to all actions of the Federal Maritime 
Commission (Commission). To the extent possible, the Commission shall 
integrate the requirements of NEPA with its obligations under section 
382(b) of the Energy Policy and Conservation Act of 1975, 42 U.S.C. 
6362.
    (c) Information obtained under this part is used by the Commission 
to assess potential environmental impacts of proposed Federal Maritime 
Commission actions. Compliance is voluntary but may be made mandatory by 
Commission order to produce the information pursuant to section 21 of 
the Shipping Act, 1916 or section 15 of the Shipping Act of 1984. 
Penalty for non-compliance with a section 21 order is $100 a day for 
each day of default; penalty for falsification of such a report is a 
fine of up to $1,000 or imprisonment up to one year, or both. Penalty 
for violation of a Commission order under section 15 of the Shipping Act 
of 1984 may not exceed $5,000 for each violation, unless the violation 
was willfully and knowingly committed, in which case the amount of the 
civil penalty may not exceed $25,000 for each violation. (Each day of a 
continuing violation constitutes a separate offense).



Sec. 504.2  Definitions.

    (a) Shipping Act, 1916 [46 U.S.C. app. 801-846] means the Shipping 
Act, 1916 as amended, 46 U.S.C. app. 801 et seq.
    (b) Common carrier means any common carrier by water as defined in 
section 3 of the Shipping Act of 1984 or in the Shipping Act, 1916, 
including a conference of such carriers.
    (c) Environmental impact means any alteration of existing 
environmental conditions or creation of a new set of environmental 
conditions, adverse or beneficial, caused or induced by the action under 
consideration.
    (d) Potential action means the range of possible Commission actions 
that may result from a Commission proceeding in which the Commission has 
not yet formulated a proposal.
    (e) Proposed action means that stage of activity where the 
Commission has determined to take a particular course of action and the 
effects of that course of action can be meaningfully evaluated.
    (f) Environmental assessment means a concise document that serves to 
``provide sufficient evidence and analysis for determining whether to 
prepare an environmental impact statement or a finding of no significant 
impact'' (40 CFR 1508.9).
    (g) Recyclable means any secondary material that can be used as a 
raw material in an industrial process in which it is transformed into a 
new product replacing the use of a depletable natural resource.
    (h) Shipping Act of 1984 means the Shipping Act of 1984 (46 U.S.C. 
App. 1701-1720).
    (i) Marine terminal operator means a person engaged in the United 
States in the business of furnishing wharfage, dock, warehouse or other 
terminal facilities in connection with a common carrier.



Sec. 504.3  General information.

    (a) All comments submitted pursuant to this part shall be addressed 
to the Secretary, Federal Maritime Commission, 1100 L Street, NW., 
Washington, DC 20573.
    (b) A list of Commission actions for which a finding of no 
significant impact has been made or for which an environmental impact 
statement is being prepared will be maintained by the Commission in the 
Office of the Secretary and will be available for public inspection.

[[Page 122]]

    (c) Information or status reports on environmental statements and 
other elements of the NEPA process can be obtained from the Office of 
Environmental Analysis, Federal Maritime Commission, 1100 L Street, NW., 
Washington, DC 20573 (telephone (202) 523-5835).



Sec. 504.4  Categorical exclusions.

    (a) No environmental analyses need be undertaken or environmental 
documents prepared in connection with actions which do not individually 
or cumulatively have a significant effect on the quality of the human 
environment because they are purely ministerial actions or because they 
do not increase or decrease air, water or noise pollution or the use of 
fossil fuels, recyclables, or energy. The following Commission actions, 
and rulemakings related thereto, are therefore excluded:
    (1) Issuance, modification, denial and revocation of Ocean Freight 
Forwarder licenses.
    (2) Certification of financial responsibility of passenger vessels 
pursuant to 46 CFR part 540.
    (3) Receipt of surety bonds submitted by non-vessel-operating common 
carriers.
    (4) Promulgation of procedural rules pursuant to 46 CFR part 502.
    (5) Acceptance or rejection of tariff filings in foreign commerce.
    (6) Consideration of special permission applications filed pursuant 
to 46 CFR part 514.
    (7) Receipt of terminal tariffs pursuant to 46 CFR part 514.
    (8) [Reserved]
    (9) Consideration of amendments to agreements filed pursuant to 
section 5 of the Shipping Act of 1984, which do not increase the 
authority set forth in the effective agreement.
    (10) Consideration of agreements between common carriers which 
solely affect intraconference or inter-rate agreement relationships or 
pertain to administrative matters of conferences or rate agreements.
    (11) Consideration of agreements between common carriers to discuss, 
propose or plan future action, the implementation of which requires 
filing a further agreement.
    (12) Consideration of exclusive or non-exclusive equipment 
interchange or husbanding agreements.
    (13) Receipt of non-exclusive transshipment agreements.
    (14) Action relating to collective bargaining agreements.
    (15) Action pursuant to section 9 of the Shipping Act of 1984 
concerning the justness and reasonableness of controlled carriers' 
rates, charges, classifications, rules or regulations.
    (16) Receipt of self-policing reports or shipper requests and 
complaints.
    (17)  [Reserved]
    (18) Consideration of actions solely affecting the environment of a 
foreign country.
    (19) Action taken on special docket applications pursuant to 46 CFR 
502.92.
    (20) Consideration of matters related solely to the issue of 
Commission jurisdiction.
    (21) [Reserved]
    (22) Investigatory and adjudicatory proceedings, the purpose of 
which is to ascertain past violations of the Shipping Act of 1984.
    (23) [Reserved]
    (24) Action regarding access to public information pursuant to 46 
CFR part 503.
    (25) Action regarding receipt and retention of minutes of conference 
meetings.
    (26) Administrative procurements (general supplies).
    (27) Contracts for personal services.
    (28) Personnel actions.
    (29) Requests for appropriations.
    (30) Consideration of all agreements involving marine terminal 
facilities and/or services except those requiring substantial levels of 
construction, dredging, land-fill, energy usage and other activities 
which may have a significant environmental effect.
    (31) Consideration of agreements regulating employee wages, hours of 
work, working conditions or labor exchanges.
    (32) Consideration of general agency agreements involving 
ministerial duties of a common carrier such as internal management, 
cargo solicitation, booking of cargo, or preparation of documents.
    (33) Consideration of agreements pertaining to credit rules.

[[Page 123]]

    (34) Consideration of agreements involving performance bonds to a 
conference from a conference member guaranteeing compliance by the 
member with the rules and regulations of the conference.
    (35) Consideration of agreements between members of two or more 
conferences or other rate-fixing agreements to discuss and agree upon 
common self-policing systems and cargo inspection services.
    (b) If interested persons allege that a categorically-excluded 
action will have a significant environmental effect (e.g., increased or 
decreased air, water or noise pollution; use of recyclables; use of 
fossil fuels or energy), they shall, by written submission to the 
Commission's Office of Environmental Analysis (OEA), explain in detail 
their reasons. The OEA shall review these submissions and determine, not 
later than ten (10) days after receipt, whether to prepare an 
environmental assessment. If the OEA determines not to prepare an 
environmental assessment, such persons may petition the Commission for 
review of the OEA's decision within ten (10) days of receipt of notice 
of such determination.
    (c) If the OEA determines that the individual or cumulative effect 
of a particular action otherwise categorically excluded offers a 
reasonable potential of having a significant environmental impact, it 
shall prepare an environmental assessment pursuant to Sec. 504.5.

[49 FR 44415, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984; 56 FR 50662, Oct. 
8, 1991; 60 FR 27229, May 23, 1995; 61 FR 66617, Dec. 18, 1996]



Sec. 504.5  Environmental assessments.

    (a) Every Commission action not specifically excluded under 
Sec. 504.4 shall be subject to an environmental assessment.
    (b) The OEA may publish in the Federal Register a notice of intent 
to prepare an environmental assessment briefly describing the nature of 
the potential or proposed action and inviting written comments to aid in 
the preparation of the environmental assessment and early identification 
of the significant environmental issues. Such comments must be received 
by the Commission no later than ten (10) days from the date of 
publication of the notice in the Federal Register.



Sec. 504.6  Finding of no significant impact.

    (a) If upon completion of an environmental assessment, the OEA 
determines that a potential or proposed action will not have a 
significant impact on the quality of the human environment of the United 
States or of the global commons, a finding of no significant impact 
shall be prepared and notice of its availability published in the 
Federal Register. This document shall include the environmental 
assessment or a summary of it, and shall briefly present the reasons why 
the potential or proposed action, not otherwise excluded under 
Sec. 504.4 will not have a significant effect on the human environment 
and why, therefore, an environmental impact statement (EIS) will not be 
prepared.
    (b) Petitions for review of a finding of no significant impact must 
be received by the Commission within ten (10) days from the date of 
publication of the notice of its availability in the Federal Register. 
The Commission shall review the petitions and either deny them or order 
the OEA to prepare an EIS pursuant to Sec. 504.7. The Commission shall, 
within ten (10) days of receipt of the petition, serve copies of its 
order upon all parties who filed comments concerning the potential or 
proposed action or who filed petitions for review.



Sec. 504.7  Environmental impact statements.

    (a) General. (1) An environmental impact statement (EIS) shall be 
prepared by the OEA when the environmental assessment indicates that a 
potential or proposed action may have a significant impact upon the 
environment of the United States or the global commons.
    (2) The EIS process will commence:
    (i) For adjudicatory proceedings, when the Commission issues an 
order of investigation or a complaint is filed;
    (ii) For rulemaking or legislative proposals, upon issuance of the 
proposal by the Commission; and

[[Page 124]]

    (iii) For other actions, the time the action is noticed in the 
Federal Register.
    (3) The major decision points in the EIS process are:
    (i) The issuance of an initial decision in those cases assigned to 
be heard by an Administrative Law Judge (ALJ); and
    (ii) The issuance of the Commission's final decision or report on 
the action.
    (4) The EIS shall consider potentially significant impacts upon the 
quality of the human environment of the United States and, in 
appropriate cases, upon the environment of the global commons outside 
the jurisdiction of any nation.
    (b) Draft environmental impact statements. (1) The OEA will 
initially prepare a draft environmental impact statement (DEIS) in 
accordance with 40 CFR part 1502.
    (2) The DEIS shall be distributed to every party to a Commission 
proceeding for which it was prepared. There will be no fee charged to 
such parties. One copy per person will also be provided to interested 
persons at their request. The fee charged such persons shall be that 
provided in Sec. 503.43 of this chapter.
    (3) Comments on the DEIS must be received by the Commission within 
ten (10) days of the date the Environmental Protection Agency (EPA) 
publishes in the Federal Register notice that the DEIS was filed with 
it. Sixteen copies shall be submitted as provided in Sec. 504.3(a). 
Comments shall be as specific as possible and may address the adequacy 
of the DEIS or the merits of the alternatives discussed in it. All 
comments received will be made available to the public. Extensions of 
time for commenting on the DEIS may be granted by the Commission for up 
to ten (10) days if good cause is shown.
    (c) Final environmental impact statements. (1) After receipt of 
comments on the DEIS, the OEA will prepare a final environmental impact 
statement (FEIS) pursuant to 40 CFR part 1502, which shall include a 
discussion of the possible alternative actions to a potential or 
proposed action. The FEIS will be distributed in the same manner as 
specified in paragraph (b)(2) of this section.
    (2) The FEIS shall be prepared prior to the Commission's final 
decision and shall be filed with the Secretary, Federal Maritime 
Commission. Upon filing, it shall become part of the administrative 
record.
    (3) For any Commission action which has been assigned to an ALJ for 
evidentiary hearing:
    (i) The FEIS shall be submitted prior to the close of the record, 
and
    (ii) The ALJ shall consider the environmental impacts and 
alternatives contained in the FEIS in preparing the initial decision.
    (4)(i) For all proposed Commission actions, any party may, by 
petition to the Commission within ten (10) days following EPA's notice 
in the Federal Register, assert that the FEIS contains a substantial and 
material error of fact which can only be properly resolved by conducting 
an evidentiary hearing, and expressly request that such a hearing be 
held. Other parties may submit replies to the petition within ten (10) 
days of its receipt.
    (ii) The Commission may delineate the issue(s) and refer them to an 
ALJ for expedited resolution or may elect to refer the petition to an 
ALJ for consideration.
    (iii) The ALJ shall make findings of fact on the issue(s) and shall 
certify such findings to the Commission as a supplement to the FEIS. To 
the extent that such findings differ from the FEIS, it shall be modified 
by the supplement.
    (iv) Discovery may be granted by the ALJ on a showing of good cause 
and, if granted, shall proceed on an expedited basis.

[49 FR 44415, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 504.8  Record of decision.

    The Commission shall consider each alternative described in the FEIS 
in its decisionmaking and review process. At the time of its final 
report or order, the Commission shall prepare a record of decision 
pursuant to 40 CFR 1505.2.



Sec. 504.9  Information required by the Commission.

    (a) Upon request of OEA, a person filing a complaint, protest, 
petition or

[[Page 125]]

agreement requesting Commission action shall submit to OEA, no later 
than ten (10) days from the date of the request, a statement setting 
forth, in detail, the impact of the requested Commission action on the 
quality of the human environment, if such requested action will:
    (1) Alter cargo routing patterns between ports or change modes of 
transportation;
    (2) Change rates or services for recyclables;
    (3) Change the type, capacity or number of vessels employed in a 
specific trade; or
    (4) Alter terminal or port facilities.
    (b) The statement submitted shall, to the fullest extent possible, 
include:
    (1) The probable impact of the requested Commission action on the 
environment (e.g., the use of energy or natural resources, the effect on 
air, noise, or water pollution), compared to the environmental impact 
created by existing uses in the area affected by it;
    (2) Any adverse environmental effects which cannot be avoided if the 
Commission were to take or adopt the requested action; and
    (3) Any alternatives to the requested Commission action.
    (c) If environmental impacts, either adverse or beneficial, are 
alleged, they should be sufficiently identified and quantified to permit 
meaningful review. Individuals may contact the OEA for informal 
assistance in preparing this statement. The OEA shall independently 
evaluate the information submitted and shall be responsible for assuring 
its accuracy if used by it in the preparation of an environmental 
assessment or EIS.
    (d) In all cases, the OEA may request every common carrier by water, 
or marine terminal operator, or any officer, agent or employee thereof, 
as well as all parties to proceedings before the Commission, to submit, 
within ten (10) days of such request, all material information necessary 
to comply with NEPA and this part. Information not produced in response 
to an informal request may be obtained by the Commission pursuant to 
section 21 of the Shipping Act, 1916, or section 15 of the Shipping Act 
of 1984.

[49 FR 44415, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984]



Sec. 504.10  Time constraints on final administrative actions.

    No decision on a proposed action shall be made or recorded by the 
Commission until the later of the following dates unless reduced 
pursuant to 40 CFR 1506.10(d), or unless required by a statutorily-
prescribed deadline on the Commission action:
    (a) Forty (40) days after EPA's publication of the notice described 
in Sec. 504.7(b) for a DEIS; or
    (b) Ten (10) days after publication of EPA's notice for an FEIS.



Sec. 504.91  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    This section displays the control numbers assigned to information 
collection requirements of the Commission in this part by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act of 1980, 
Public Law 96-511. The Commission intends that this section comply with 
the requirements of section 3507(f) of the Paperwork Reduction Act, 
which requires that agencies display a current control number assigned 
by the Director of the Office of Management and Budget (OMB) for each 
agency information collection requirement:

------------------------------------------------------------------------
                                                            Current OMB
                         Section                            Control No.
------------------------------------------------------------------------
504.4 through 504.7.....................................       3072-0035
504.9...................................................      3072-0035.
------------------------------------------------------------------------



PART 505--ADMINISTRATIVE OFFSET--Table of Contents




Sec.
505.1  Scope of regulations.
505.2  Definitions.
505.3  General.
505.4  Notification procedures.
505.5  Agency review.
505.6  Written agreement for repayment.
505.7  Administrative offset.
505.8  Jeopardy procedure.

    Authority: 31 U.S.C. 3701; 31 U.S.C. 3711; 31 U.S.C. 3716.

    Source: 61 FR 50444, Sept. 26, 1996, unless otherwise noted.

[[Page 126]]



Sec. 505.1  Scope of regulations.

    These regulations apply to the collection of debts owed to the 
United States arising from transactions with the Commission, or where a 
request for an offset is received by the Commission from another agency. 
These regulations are consistent with the Federal Claims Collection 
Standards on administrative offset issued jointly by the Department of 
Justice and the General Accounting Office as set forth in 4 CFR 102.3.



Sec. 505.2  Definitions.

    (a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means 
withholding money payable by the United States Government to, or held by 
the Government for, a person to satisfy a debt the person owes the 
Government.
    (b) Person includes a natural person or persons, profit or non-
profit corporation, partnership, association, trust, estate, consortium, 
or other entity which is capable of owing a debt to the United States 
Government except that agencies of the United States, or of any State or 
local government shall be excluded.



Sec. 505.3  General.

    (a) The Chairman or his or her designee, after attempting to collect 
a debt from a person under section 3(a) of the Federal Claims Collection 
Act of 1966, as assembled (31 U.S.C. 3711(a)), may collect the debt by 
administrative offset subject to the following:
    (1) The debt is certain in amount; and
    (2) It is in the best interests of the United States to collect the 
debt by administrative offset because of the decreased costs of 
collection and the acceleration in the payment of the debt.
    (b) The Chairman, or his or her designee, may initiate 
administrative offset with regard to debts owed by a person to another 
agency of the United States Government, upon receipt of a request from 
the head of another agency or his or her designee, and a certification 
that the debt exists and that the person has been afforded the necessary 
due process rights.
    (c) The Chairman, or his or her designee, may request another agency 
that holds funds payable to a Commission debtor to offset the debt 
against the funds held and will provide certification that:
    (1) The debt exists; and
    (2) The person has been afforded the necessary due process rights.
    (d) If the six-year period for bringing action on a debt provided in 
28 U.S.C. 2415 has expired, then administrative offset may be used to 
collect the debt only if the costs of bringing such action are likely to 
be less than the amount of the debt.
    (e) No collection by administrative offset shall be made on any debt 
that has been outstanding for more than 10 years unless facts material 
to the Government's right to collect the debt were not known, and 
reasonably could not have been known, by the official or officials 
responsible for discovering and collecting such debt.
    (f) These regulations do not apply to:
    (1) A case in which administrative offset of the type of debt 
involved is explicitly provided for or prohibited by another statute; or
    (2) Debts owed by other agencies of the United States or by any 
State or local government.



Sec. 505.4  Notification procedures.

    Before collecting any debt through administrative offset, a notice 
of intent to offset shall be sent to the debtor by certified mail, 
return receipt requested, at the most current address that is available 
to the Commission. The notice shall provide:
    (a) A description of the nature and amount of the debt and the 
intention of the Commission to collect the debt through administrative 
offset;
    (b) An opportunity to inspect and copy the records of the Commission 
with respect to the debt;
    (c) An opportunity for review within the Commission of the 
determination of the Commission with respect to the debt; and
    (d) An opportunity to enter into a written agreement for the 
repayment of the amount of the debt.



Sec. 505.5  Agency review.

    (a) A debtor may dispute the existence of the debt, the amount of 
debt, or the terms of repayment. A request to

[[Page 127]]

review a disputed debt must be submitted to the Commission official who 
provided notification within 30 calendar days of the receipt of the 
written notice described in Sec. 505.4.
    (b) If the debtor requests an opportunity to inspect or copy the 
Commission's records concerning the disputed claim, 10 business days 
will be granted for the review. The time period will be measured from 
the time the request for inspection is granted or from the time the copy 
of the records is received by the debtor.
    (c) Pending the resolution of a dispute by the debtor, transactions 
in any of the debtor's account(s) maintained in the Commission may be 
temporarily suspended. Depending on the type of transaction the 
suspension could preclude its payment, removal, or transfer, as well as 
prevent the payment of interest or discount due thereon. Should the 
dispute be resolved in the debtor's favor, the suspension will be 
immediately lifted.
    (d) During the review period, interest, penalties, and 
administrative costs authorized under the Federal Claims Collection Act 
of 1996, as amended, will continue to accrue.



Sec. 505.6  Written agreement for repayment.

    A debtor who admits liability but elects not to have the debt 
collected by administrative offset will be afforded an opportunity to 
negotiate a written agreement for the repayment of the debt. If the 
financial condition of the debtor does not support the ability to pay in 
one lump-sum, reasonable installments may be considered. No installment 
arrangement will be considered unless the debtor submits a financial 
statement, executed under penalty of perjury, reflecting the debtor's 
assets, liabilities, income, and expenses. The financial statement must 
be submitted within 10 business days of the Commission's request for the 
statement. At the Commission's option, a confess-judgment note or bond 
of indemnity with surety may be required for installment agreements. 
Notwithstanding the provisions of this section, any reduction or 
compromise of a claim will be governed by 4 CFR part 103.



Sec. 505.7  Administrative offset.

    (a) If the debtor does not exercise the right to request a review 
within the time specified in Sec. 505.5 or if as a result of the review, 
it is determined that the debt is due and no written agreement is 
executed, then administrative offset shall be ordered in accordance with 
these regulations without further notice.
    (b) Requests for offset to other Federal agencies. The Chairman or 
his or her designee may request that funds due and payable to a debtor 
by another Federal agency be administratively offset in order to collect 
a debt owed to the Commission by that debtor. In requesting 
administrative offset, the Commission, as creditor, will certify in 
writing to the Federal agency holding funds of the debtor:
    (1) That the debtor owes the debt;
    (2) The amount and basis of the debt; and
    (3) That the agency has complied with the requirements of 31 U.S.C. 
3716, its own administrative offset regulations and the applicable 
provisions of 4 CFR part 102 with respect to providing the debtor with 
due process.
    (c) Requests for offset from other Federal agencies. Any Federal 
agency may request that funds due and payable to its debtor by the 
Commission be administratively offset in order to collect a debt owed to 
such Federal agency by the debtor. The Commission shall initiate the 
requested offset only upon:
    (1) Receipt of written certification from the creditor agency:
    (i) That the debtor owes the debt;
    (ii) The amount and basis of the debt;
    (iii) That the agency has prescribed regulations for the exercise of 
administrative offset; and
    (iv) That the agency has complied with its own administrative offset 
regulations and with the applicable provisions of 4 CFR part 102, 
including providing any required hearing or review.
    (2) A determination by the Commission that collection by offset 
against funds payable by the Commission would be in the best interest of 
the United States as determined by the facts and circumstances of the 
particular case, and that such offset would not otherwise be contrary to 
law.

[[Page 128]]



Sec. 505.8  Jeopardy procedure.

    The Commission may effect an administrative offset against a payment 
to be made to the debtor prior to the completion of the procedures 
required by Secs. 505.4 and 505.5 of this part if failure to take the 
offset would substantially jeopardize the Commission's ability to 
collect the debt, and the time before the payment is to be made does not 
reasonably permit the completion of those procedures. Such prior offset 
shall be promptly followed by the completion of those procedures. 
Amounts recovered by offset but later found not to be owed to the 
Commission shall be promptly refunded.



PART 506--CIVIL MONETARY PENALTY INFLATION ADJUSTMENT--Table of Contents




Sec.
506.1  Scope and purpose.
506.2  Definitions.
506.3  Civil monetary penalty inflation adjustment.
506.4  Cost of living adjustments of civil monetary penalties.
506.5  Application of increase to violations.

    Authority: 28 U.S.C. 2461.

    Source: 61 FR 52705, Oct. 8, 1996, unless otherwise noted.



Sec. 506.1  Scope and purpose.

    The purpose of this Part is to establish a mechanism for the regular 
adjustment for inflation of civil monetary penalties and to adjust such 
penalties in conformity with the Federal Civil Penalties Inflation 
Adjustment Act of 1990, 46 U.S.C. 2461, as amended by the Debt 
Collection Improvement Act of 1996, Public Law 104-134, April 26, 1996, 
in order to maintain the deterrent effect of civil monetary penalties 
and to promote compliance with the law.



Sec. 506.2  Definitions.

    (a) Commission means the Federal Maritime Commission.
    (b) Civil Monetary Penalty means any penalty, fine, or other 
sanction that:
    (1)(i) Is for a specific monetary amount as provided by Federal law; 
or
    (ii) Has a maximum amount provided by Federal law;
    (2) Is assessed or enforced by the Commission pursuant to Federal 
law; and
    (3) Is assessed or enforced pursuant to an administrative proceeding 
or a civil action in the Federal Courts.
    (c) Consumer Price Index means the Consumer Price Index for all 
urban consumers published by the Department of Labor.



Sec. 506.3  Civil monetary penalty inflation adjustment.

    The Commission shall, not later than October 23, 1996, and at least 
once every 4 years thereafter--
    (a) By regulation adjust each civil monetary penalty provided by law 
within the jurisdiction of the Commission by the inflation adjustment 
described in Sec. 506.4; and
    (b) Publish each such regulation in the Federal Register.



Sec. 506.4  Cost of living adjustments of civil monetary penalties.

    (a) The inflation adjustment under Sec. 506.3 shall be determined by 
increasing the maximum civil monetary penalty for each civil monetary 
penalty by the cost-of-living adjustment. Any increase determined under 
this subsection shall be rounded to the nearest:
    (1) Multiple of $10 in the case of penalties less than or equal to 
$100;
    (2) Multiple of $100 in the case of penalties greater than $100 but 
less than or equal to $1,000;
    (3) Multiple of $1,000 in the case of penalties greater than $1,000 
but less than or equal to $10,000;
    (4) Multiple of $5,000 in the case of penalties greater than $10,000 
but less than or equal to $100,000;
    (5) Multiple of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (6) Multiple of $25,000 in the case of penalties greater than 
$200,000.
    (b) For purposes of paragraph (a) of this section, the term `cost-
of-living adjustment' means the percentage (if any) for each civil 
monetary penalty by which the Consumer Price Index for the month of June 
of the calendar year preceding the adjustment, exceeds the Consumer 
Price Index for the month of June of the calendar year in which the 
amount of such civil monetary penalty

[[Page 129]]

was last set or adjusted pursuant to law.
    (c) Limitation on initial adjustment. The first adjustment of civil 
monetary penalty pursuant to Sec. 506.3 may not exceed 10 percent of 
such penalty.
    (d) Inflation adjustment. Maximum Civil Monetary Penalties within 
the jurisdiction of the Federal Maritime Commission are adjusted for 
inflation as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                      Maximum      New adjusted
          United States Code Citation                Civil Monetary Penalty       penalty amount      maximum
                                                           description            as of 10/23/96  penalty amount
----------------------------------------------------------------------------------------------------------------
46 U.S.C. app. sec. 817d......................  Failure to establish financial             5,000           5,500
                                                 responsibility for death or                 200             220
                                                 injury.
46 U.S.C. app. sec. 817e......................  Failure to establish financial             5,000           5,500
                                                 responsibility for                          200             220
                                                 nonperformance of
                                                 transportation.
46 U.S.C. app. sec. 876.......................  Failure to provide required                5,000           5,500
                                                 reports, etc.--Merchant Marine
                                                 Act of 1920.
46 U.S.C. app. sec. 876.......................  Adverse shipping conditions/           1,000,000       1,100,000
                                                 Merchant Marine Act of 1920.
46 U.S.C. app. sec. 876.......................  Operating after tariff                    50,000          55,000
                                                 suspension/Merchant Marine Act
                                                 of 1920.
46 U.S.C. app. sec. 1707a.....................  Failure to pay ATFI Fee.........           5,000           5,500
46 U.S.C. app. sec. 1710a.....................  Adverse impact on U.S. carriers        1,000,000       1,100,000
                                                 by foreign shipping practices.
46 U.S.C. app. sec. 1712......................  Operating in foreign commerce             50,000          55,000
                                                 after tariff suspension.
46 U.S.C. app. sec. 1712......................  Knowing and willful violation/            25,000          27,500
                                                 Shipping Act of 1984 or
                                                 Commission regulation or order.
46 U.S.C. app. sec. 1712......................  Violation of Shipping Act of               5,000           5,500
                                                 1984, Commission regulation or
                                                 order, not knowing and willful.
46 U.S.C. app. sec. 1714......................  Failure to file anti-rebate                5,000           5,500
                                                 certification/Shipping Act of
                                                 1984.
31 U.S.C. sec. 3802(a)(1).....................  Program Fraud Civil Remedies Act/          5,000           5,500
                                                 giving false statement.
31 U.S.C. sec. 3802(a)(2).....................  Program Fraud Civil Remedies Act/          5,000           5,500
                                                 giving false statement.
----------------------------------------------------------------------------------------------------------------



Sec. 506.5  Application of increase to violations.

    Any increase in a civil monetary penalty under this part shall apply 
only to violations which occur after the date the increase takes effect.



PART 507--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL MARITIME COMMISSION--Table of Contents




Sec.
507.101  Purpose.
507.102  Application.
507.103  Definitions.
507.104--507.109  [Reserved]
507.110  Self-evaluation.
507.111  Notice.
507.112--507.129  [Reserved]
507.130  General prohibitions against discrimination.
507.131--507.139  [Reserved]
507.140  Employment.
507.141--507.148  [Reserved]
507.149  Program accessibility: Discrimination prohibited.
507.150  Program accessibility: Existing facilities.
507.151  Program accessibility: New construction and alterations.
507.152--507.159  [Reserved]
507.160  Communications.
507.161--507.169  [Reserved]
507.170  Compliance procedures.
507.171--507.999  [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22895, 22896, June 23, 1986, unless otherwise noted.



Sec. 507.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.

[[Page 130]]



Sec. 507.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 507.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alocoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services

[[Page 131]]

provided by the agency, a handicapped person who is a member of a class 
of persons otherwise entitled by statute, regulation, or agency policy 
to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can acheive the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 507.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Secs. 507.104--507.109  [Reserved]



Sec. 507.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 507.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Secs. 507.112--507.129  [Reserved]



Sec. 507.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording

[[Page 132]]

equal opportunity to obtain the same result, to gain the same benefit, 
or to reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Secs. 507.131--507.139  [Reserved]



Sec. 507.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Secs. 507.141--507.148  [Reserved]



Sec. 507.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 507.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.

[[Page 133]]



Sec. 507.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 507.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 507.150(a) in historic preservation programs, the agency shall give 
priority to methods that provide physical access to handicapped persons. 
In cases where a physical alteration to an historic property is not 
required because of Sec. 507.150 (a)(2) or (a)(3), alternative methods 
of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons

[[Page 134]]

or organizations representing handicapped persons, to participate in the 
development of the transition plan by submitting comments (both oral and 
written). A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 507.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Secs. 507.152--507.159  [Reserved]



Sec. 507.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and adminstrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 507.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity, and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
handicapped persons receive the benefits and services of the program or 
activity.

[[Page 135]]



Secs. 507.161--507.169  [Reserved]



Sec. 507.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director, Bureau of Administration shall be responsible for 
coordinating implementation of this section. Complaints may be sent to 
the Director, Bureau of Administration, Federal Maritime Commission, 
1100 L Street NW., Room 12211, Washington, DC 20573.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 507.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 22895, June 23, 1986, as amended at 51 FR 22896, June 23, 1986]



Secs. 507.171--507.999  [Reserved]

[[Page 136]]



  SUBCHAPTER B--REGULATIONS AFFECTING MARITIME CARRIERS, OCEAN FREIGHT 
 FORWARDERS, MARINE TERMINAL OPERATIONS, PASSENGER VESSELS, TARIFFS AND 
                            SERVICE CONTRACTS


PART 510--LICENSING OF OCEAN FREIGHT FORWARDERS--Table of Contents




                           Subpart A--General

Sec.
510.1  Scope.
510.2  Definitions.
510.3  License; when required.
510.4  License; when not required.

  Subpart B--Eligibility and Procedure for Licensing; Bond Requirements

510.11  Basic requirements for licensing; eligibility.
510.12  Application for license.
510.13  Investigation of applicants.
510.14  Surety bond requirements.
510.15  Denial of license.
510.16  Revocation or suspension of license.
510.17  Application after revocation or denial.
510.18  Issuance and use of license.
510.19  Changes in organization.

Subpart C--Duties and Responsibilities of Freight Forwarders; Forwarding 
                     Charges; Reports to Commission

510.21  General duties.
510.22  Forwarder and principal; fees.
510.23  Forwarder and carrier; compensation.
510.24  Records required to be kept.
510.25  Anti-rebate certifications.
510.26  Regulated Persons Index.
510.91  OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 46 U.S.C. app. 1702, 1707, 
1709, 1710, 1712, 1714, 1716, and 1718; 21 U.S.C. 862.

    Source: 49 FR 36297, Sept. 14, 1984, unless otherwise noted.



                           Subpart A--General



Sec. 510.1  Scope.

    (a) This part sets forth regulations providing for the licensing as 
ocean freight forwarders of persons, including individuals, corporations 
and partnerships, who wish to carry on the business of freight 
forwarding. This part also prescribes the bonding requirements and the 
duties and responsibilities of ocean freight forwarders, regulations 
concerning practices of freight forwarders and common carriers, and the 
grounds and procedures for revocation and suspension of licenses.
    (b) Information obtained under this part is used to determine the 
qualifications of freight forwarders and their compliance with shipping 
statutes and regulations. Failure to follow the provisions of this part 
may result in denial, revocation or suspension of a freight forwarder 
license. Persons operating without the proper license may be subject to 
civil penalties not to exceed $5,000 for each such violation unless the 
violation is willfully and knowingly committed, in which case the amount 
of the civil penalty may not exceed $25,000 for each violation; for 
other violations of the provisions of this part, the civil penalties 
range from $5,000 to $25,000 for each violation (46 U.S.C. app. 1712). 
Each day of a continuing violation shall constitute a separate 
violation.



Sec. 510.2  Definitions.

    The terms used in this part are defined as follows:
    (a) Act means the Shipping Act of 1984 (46 U.S.C. app. 1701-1720).
    (b) Beneficial interest includes a lien or interest in or right to 
use, enjoy, profit, benefit, or receive any advantage, either 
proprietary or financial, from the whole or any part of a shipment of 
cargo where such interest arises from the financing of the shipment or 
by operation of law, or by agreement, express or implied. The term 
beneficial interest shall not include any obligation in favor of a 
freight forwarder arising solely by reason of the advance of out-of-
pocket expenses incurred in dispatching a shipment.
    (c) Branch office means any office established by or maintained by 
or under the control of a licensee for the purpose of rendering freight 
forwarding services, which office is located at an

[[Page 137]]

address different from that of the licensee's designated home office. 
This term does not include a separately incorporated entity.
    (d) Brokerage refers to payment by a common carrier to an ocean 
freight broker for the performance of services as specified in paragraph 
(m) of this section.
    (e) Common carrier means any person holding itself out to the 
general public to provide transportation by water of passengers or cargo 
between the United States and a foreign country for compensation that:
    (1) Assumes responsibility for the transportation from the port or 
point of receipt to the port or point of destination, and
    (2) Utilizes, for all or part of that transportation, a vessel 
operating on the high seas or the Great Lakes between a port in the 
United States and a port in a foreign country.
    (f) Compensation means payment by a common carrier to a freight 
forwarder for the performance of services as specified in Sec. 510.23(c) 
of this part.
    (g) Freight forwarding fee means charges billed by a freight 
forwarder to a shipper, consignee, seller, purchaser, or any agent 
thereof, for the performance of freight forwarding services.
    (h) Freight forwarding services refers to the dispatching of 
shipments on behalf of others, in order to facilitate shipment by a 
common carrier, which may include, but are not limited to, the 
following:
    (1) Ordering cargo to port;
    (2) Preparing and/or processing export declarations;
    (3) Booking, arranging for or confirming cargo space;
    (4) Preparing or processing delivery orders or dock receipts;
    (5) Preparing and/or processing ocean bills of lading;
    (6) Preparing or processing consular documents or arranging for 
their certification;
    (7) Arranging for warehouse storage;
    (8) Arranging for cargo insurance;
    (9) Clearing shipments in accordance with United States Government 
export regulations;
    (10) Preparing and/or sending advance notifications of shipments or 
other documents to banks, shippers, or consignees, as required;
    (11) Handling freight or other monies advanced by shippers, or 
remitting or advancing freight or other monies or credit in connection 
with the dispatching of shipments;
    (12) Coordinating the movement of shipments from origin to vessel; 
and
    (13) Giving expert advice to exporters concerning letters of credit, 
other documents, licenses or inspections, or on problems germane to the 
cargoes' dispatch.
    (i) From the United States means oceanborne export commerce from the 
United States, its Territories, or possessions to foreign countries.
    (j) Licensee is any person licensed by the Federal Maritime 
Commission as an ocean freight forwarder.
    (k) Non-vessel-operating common carrier means a common carrier that 
does not operate the vessels by which the ocean transportation is 
provided, and is a shipper in its relationship with an ocean common 
carrier.
    (l) Ocean common carrier means a vessel-operating common carrier but 
the term does not include one engaged in ocean transportation by ferry 
boat or ocean tramp.
    (m) Ocean freight broker is an entity which is engaged by a carrier 
to secure cargo for such carrier and/or to sell or offer for sale ocean 
transportation services and which holds itself out to the public as one 
who negotiates between shipper or consignee and carrier for the 
purchase, sale, conditions and terms of transportation.
    (n) Ocean freight forwarder means a person in the United States 
that:
    (1) Dispatches shipments from the United States via common carriers 
and books or otherwise arranges space for those shipments on behalf of 
shippers; and
    (2) Processes the documentation or performs related activities 
incident to those shipments.
    (o) Principal, except as used in Surety Bond Form FMC 59, Rev., 
refers to the shipper, consignee, seller, or purchaser of property, and 
to anyone acting on

[[Page 138]]

behalf of such shipper, consignee, seller, or purchaser of property, who 
employs the services of a licensee to facilitate the ocean 
transportation of such property.
    (p) Reduced forwarding fees means charges to a principal for 
forwarding services that are below the licensee's usual charges for such 
services.
    (q) Shipment means all of the cargo carried under the terms of a 
single bill of lading.
    (r) Shipper means an owner or person for whose account the ocean 
transportation of cargo is provided or the person to whom delivery is to 
be made.
    (s) Small shipment refers to a single shipment sent by one consignor 
to one consignee on one bill of lading which does not exceed the 
underlying common carrier's minimum charge rule.
    (t) Special contract is a contract for freight forwarding services 
which provides for a periodic lump sum fee.
    (u) United States includes the several States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the 
Northern Marianas, and all other United States territories and 
possessions.



Sec. 510.3  License; when required.

    Except as otherwise provided in this part, a person must hold a 
valid ocean freight forwarder license in order to perform freight 
forwarding services, and, except as provided in Sec. 510.4, no person 
shall perform, or hold out to perform, such services unless such person 
holds a valid license issued by the Commission to engage in such 
business. A separate license is required for each branch office that is 
separately incorporated.



Sec. 510.4  License; when not required.

    A license is not required in the following circumstances:
    (a) Shipper. Any person whose primary business is the sale of 
merchandise may, without a license, dispatch and perform freight 
forwarding services on behalf of its own shipments, or on behalf of 
shipments or consolidated shipments of a parent, subsidiary, affiliate, 
or associated company. Such person shall not receive compensation from 
the common carrier for any services rendered in connection with such 
shipments.
    (b) Employee or branch office of licensed forwarder. An individual 
employee or unincorporated branch office of a licensed ocean freight 
forwarder is not required to be licensed in order to act solely for such 
licensee, but each licensed ocean freight forwarder will be held 
strictly responsible hereunder for the acts or omissions of any of its 
employees rendered in connection with the conduct of the business.
    (c) Common carrier. A common carrier, or agent thereof, may perform 
ocean freight forwarding services without a license only with respect to 
cargo carried under such carrier's own bill of lading. Charges for such 
forwarding services shall be assessed in conformance with the carrier's 
published tariffs on file with the Commission.
    (d) Ocean freight brokers. An ocean freight broker is not required 
to be licensed to perform those services specified in Sec. 510.2(m).



  Subpart B--Eligibility and Procedure for Licensing; Bond Requirements



Sec. 510.11  Basic requirements for licensing; eligibility.

    (a) Necessary qualifications. To be eligible for an ocean freight 
forwarder's license, the applicant must demonstrate to the Commission 
that:
    (1) It possesses the necessary experience, that is, its qualifying 
individual has a minimum of three (3) years experience in ocean freight 
forwarding duties in the United States, and the necessary character to 
render forwarding services; and
    (2) It has obtained and filed with the Commission a valid surety 
bond in conformance with Sec. 510.14.
    (b) Qualifying individual. The following individuals must qualify 
the applicant for a license:
    (1) Sole proprietorship-- The applicant sole proprietor.
    (2) Partnership-- At least one of the active managing partners, but 
all partners must execute the application.
    (3) Corporation-- At least one of the active corporate officers.
    (c) Affiliates of forwarders. An independently qualified applicant 
may be

[[Page 139]]

granted a separate license to carry on the business of forwarding even 
though it is associated with, under common control with, or otherwise 
related to another ocean freight forwarder through stock ownership or 
common directors or officers, if such applicant submits: (1) A separate 
application and fee, and (2) a valid surety bond in the form and amount 
prescribed under Sec. 510.14. The proprietor, partner or officer who is 
the qualifying individual of one active licensee shall not also be 
designated the qualifying proprietor, partner or officer of an applicant 
for another ocean freight forwarder license.
    (d) Common carrier. A common carrier or agent thereof which meets 
the requirements of this part may be licensed to dispatch shipments 
moving on other than such carrier's own bill of lading subject to the 
provisions of Sec. 510.23(g).

[49 FR 36297, Sept. 14, 1984; 49 FR 38544, Oct. 1, 1984]



Sec. 510.12  Application for license.

    (a) Application and forms. (1) Any person who wishes to obtain a 
license to carry on the business of forwarding shall submit, in 
duplicate, to the Director of the Commission's Bureau of Tariffs, a 
completed application Form FMC-18 Rev. (Application for a License as an 
Ocean Freight Forwarder) and a completed anti-rebate certification in 
the format prescribed under Sec. 510.25. Copies of Form FMC-18 Rev. may 
be obtained from the Director, Bureau of Tariffs, Federal Maritime 
Commission, Washington, DC 20573, or from any of the Commission's 
offices at other locations. Notice of filing of such application shall 
be published in the Federal Register and shall state the name and 
address of the applicant. If the applicant is a corporation or 
partnership, the names of the officers or partners thereof shall be 
published.
    (2) An individual who is applying for a license in his or her own 
name must complete the following certification.

    I. ______ (Name) ______, certify under penalty of perjury under the 
laws of the United States, that I have not been convicted, after 
September 1, 1989, of any Federal or State offense involving the 
distribution or possession of a controlled substance, or that if I have 
been so convicted, I am not ineligible to receive Federal benefits, 
either by court order or operation of law, pursuant to 21 U.S.C. 862.

    (b) Fee. The application shall be accompanied by a money order, 
certified check or cashier's check in the amount of $778 made payable to 
the Federal Maritime Commission.
    (c) Rejection. Any application which appears upon its face to be 
incomplete or to indicate that the applicant fails to meet the licensing 
requirements of the Shipping Act of 1984, or the Commission's 
regulations, shall be returned by certified U.S. mail to the applicant 
without further processing, together with an explanation of the 
reason(s) for rejection, and the application fee shall be refunded in 
full. All other applications will be assigned an application number, and 
each applicant will be notified of the number assigned to its 
application. Persons who have had their applications returned may 
reapply for a license at any time thereafter by submitting a new 
application, together with the full application fee.
    (d) Investigation. Each applicant shall be investigated in 
accordance with Sec. 510.13.
    (e) Changes in fact. Each applicant and each licensee shall submit 
to the Commission, in duplicate, an amended Form FMC-18 Rev. advising of 
any changes in the facts submitted in the original application, within 
thirty (30) days after such change(s) occur. In the case of an 
application for a license, any unreported change may delay the 
processing and investigation of the application and may result in 
rejection or denial of the application. No fee is required when 
reporting changes to an application for initial license under this 
section.

[49 FR 36297, Sept. 14, 1984, as amended at 55 FR 42194, Oct. 18, 1990; 
59 FR 59171, Nov. 16, 1994; 62 FR 6132, Feb. 11, 1997; 63 FR 50536, 
Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50536, Sept. 22, 1998, Sec. 510.12(b) 
was revised, effective Nov. 2, 1998. For the convenience of the user, 
the superseded text is set forth as follows:

Sec. 510.12  Application for license.

                                * * * * *

    (b) Fee. The application shall be accompanied by a money order, 
certified check or

[[Page 140]]

cashier's check in the amount of $687 made payable to the Federal 
Maritime Commission.

                                * * * * *



Sec. 510.13  Investigation of applicants.

    The Commission shall conduct an investigation of the applicant's 
qualifications for a license. Such investigations may address:
    (a) The accuracy of the information submitted in the application;
    (b) The integrity and financial responsibility of the applicant;
    (c) The character of the applicant and its qualifying individual; 
and
    (d) The length and nature of the qualifying individual's experience 
in handling freight forwarding duties.



Sec. 510.14  Surety bond requirements.

    (a) Form and amount. No license shall be issued to an applicant who 
does not have a valid surety bond (FMC-59 Rev.) on file with the 
Commission in the amount of $30,000. The amount of such bond shall be 
increased by $10,000 for each of the applicant's unincorporated branch 
offices. Bonds must be issued by a surety company found acceptable by 
the Secretary of the Treasury. Surety Bond Form FMC-59 Rev. can be 
obtained in the same manner as Form FMC-18 Rev. under Sec. 510.12(a).
    (b) Filing of bond. Upon notification by the Commission by certified 
U.S. mail that the applicant has been approved for licensing, the 
applicant shall file with the Director of the Commission's Bureau of 
Tariffs, a surety bond in the form and amount prescribed in 
Sec. 510.14(a). No license will be issued until the Commission is in 
receipt of a valid surety bond from the applicant. If more than six (6) 
months elapse between issuance of the notification of qualification and 
receipt of the surety bond, the Commission shall, at its discretion, 
undertake a supplementary investigation to determine the applicant's 
continued qualification. The fee for such supplementary investigation 
shall be $224 payable by money order, certified check or cashier's check 
to the Federal Maritime Commission. Should the applicant not file the 
requisite surety bond within two years of notification, the Commission 
will consider the application to be invalid.
    (c) Branch offices. A new surety bond, or rider to the existing 
bond, increasing the amount of the bond in accordance with 
Sec. 510.14(a), shall be filed with the Commission prior to the date the 
licensee commences operation of any branch office. Failure to adhere to 
this requirement may result in revocation of the license.
    (d) Termination of bond. No license shall remain in effect unless a 
valid surety bond is maintained on file with the Commission. Upon 
receipt of notice of termination of a surety bond, the Commission shall 
notify the concerned licensee by certified U.S. mail, at its last known 
address, that the Commission shall, without hearing or other proceeding, 
revoke the license as of the termination date of the bond, unless the 
licensee shall have submitted a valid replacement surety bond before 
such termination date. Replacement surety bonds must bear an effective 
date no later than the termination date of the expiring bond.

[49 FR 36297, Sept. 14, 1984, as amended at 59 FR 59171, Nov. 16, 1994; 
63 FR 50536, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50536, Sept. 22, 1998, the 
penultimate sentence in Sec. 510.14(b) was revised, effective Nov. 2, 
1998. For the convenience of the user, the superseded text is set forth 
as follows:

Sec. 510.14  Surety bond requirements.

                                * * * * *

    (b) * * * The fee for such supplementary investigation shall be $213 
payable by money order, certified check or cashier's check to the 
Federal Maritime Commission. * * *

                                * * * * *



 Sec. 510.15  Denial of license.

    If the Commission determines, as a result of its investigation, that 
the applicant:
    (a) Does not possess the necessary experience or character to render 
forwarding services;
    (b) Has failed to respond to any lawful inquiry of the Commission; 
or
    (c) Has made any willfully false or misleading statement to the 
Commission in connection with its application,

A letter of intent to deny the application shall be sent to the 
applicant by

[[Page 141]]

certified U.S. mail, stating the reason(s) why the Commission intends to 
deny the application. If the applicant submits a written request for 
hearing on the proposed denial within twenty (20) days after receipt of 
notification, such hearing shall be granted by the Commission pursuant 
to its Rules of Practice and Procedure contained in part 502 of this 
chapter. Otherwise, denial of the application will become effective and 
the applicant shall be so notified by certified U.S. mail. Civil 
penalties for violations of the Act or any Commission order, rule or 
regulation may be assessed in accordance with subpart W of part 502 of 
this chapter in any proceeding on the proposed denial of a license or 
may be compromised for any such violation when a proceeding has not been 
instituted.

[49 FR 36297, Sept. 14, 1984, as amended at 58 FR 27213, May 7, 1993]



 Sec. 510.16  Revocation or suspension of license.

    (a) Grounds for revocation. Except for the automatic revocation for 
termination of a surety bond under Sec. 510.14(d), or as provided in 
Sec. 510.14(c), a license may be revoked or suspended after notice and 
hearing for any of the following reasons:
    (1) Violation of any provision of the Act, or any other statute or 
Commission order or regulation related to carrying on the business of 
forwarding;
    (2) Failure to respond to any lawful order or inquiry by the 
Commission;
    (3) Making a willfully false or misleading statement to the 
Commission in connection with an application for a license or its 
continuance in effect;
    (4) Where the Commission determines that the licensee is not 
qualified to render freight forwarding services;
    (5) Failure to honor the licensee's financial obligations to the 
Commission, such as for civil penalties assessed or agreed to in a 
settlement agreement under subpart W of part 502 of this chapter; or
    (6) Failure to file an anti-rebate certification as required by 
Sec. 510.25 and part 582 of this chapter. Any licensed freight forwarder 
who fails to file an anti-rebate certification will be notified by 
Federal Register publication and by certified mail that if within forty-
five (45) days from the date the certified notice is mailed the licensee 
does not either establish that the required anti-rebate certification 
was filed in accordance with Sec. 510.25 and part 582 of this chapter or 
file the required anti-rebate certification, its license will be 
suspended until such time as it is reinstated by the Commission after an 
anti-rebate certification is filed. The license of any freight forwarder 
who files an anti-rebate certification after December 31 but before the 
end of the forty-five (45) days notice period will not be suspended; 
however, the licensee will be subject to civil penalties as provided in 
part 582 of this chapter. After the forty-five (45) days, any licensee 
that still does not have an anti-rebate certification on file with the 
Commission will be notified by Federal Register publication and 
certified mail, return receipt requested, that its license has been 
suspended.
    (b) Civil penalties. As provided for in subpart W of part 502 of 
this chapter, civil penalties for violations of the Act or any 
Commission order, rule, or regulation may be assessed in any proceeding 
to revoke or suspend a license and may be compromised when such a 
proceeding has not been instituted.
    (c) Notice of revocation. The Commission shall publish in the 
Federal Register a notice of each revocation.

[49 FR 36297, Sept. 14, 1984, as amended at 55 FR 35318, Aug. 29, 1990; 
57 FR 39623, Sept. 1, 1992; 58 FR 27213, May 7, 1993]



 Sec. 510.17  Application after revocation or denial.

    Whenever a license has been revoked or an application has been 
denied because the Commission has found the licensee or applicant to be 
not qualified to render forwarding services, any further application 
within 3 years of the date of the most recent conduct on which the 
Commission's notice of revocation or denial was based, made by such 
former licensee or applicant or by another applicant employing the same 
qualifying individual or controlled by persons on whose conduct the 
Commission based its determination for revocation or denial, shall be 
reviewed directly by the Commission.

[[Page 142]]



Sec. 510.18  Issuance and use of license.

    (a) Qualification necessary for issuance. The Commission will issue 
a license if it determines, as a result of its investigation, that the 
applicant possesses the necessary experience and character to render 
forwarding services and has filed the required surety bond.
    (b) To whom issued. The Commission will issue a license only in the 
name of the applicant, whether the applicant be a sole proprietorship, a 
partnership, or a corporation, and the license will be issued to only 
one legal entity. A license issued to a sole proprietor doing business 
under a trade name shall be in the name of the sole proprietor, 
indicating the trade name under which the licensee will be conducting 
business. Only one license shall be issued to any applicant regardless 
of the number of names under which such applicant may be doing business.
    (c) Use limited to named licensee. Except as otherwise provided in 
this part, such license is limited exclusively to use by the named 
licensee and shall not be transferred without approval to another 
person.



Sec. 510.19  Changes in organization.

    (a) The following changes in an existing licensee's organization 
require prior approval of the Commission:
    (1) Transfer of a corporate license to another person;
    (2) Change in ownership of an individual proprietorship;
    (3) Addition of one or more partners to a licensed partnership;
    (4) Change in the business structure of a licensee from or to a sole 
proprietorship, partnership, or corporation, whether or not such change 
involves a change in ownership;
    (5) Any change in a licensee's name; or
    (6) Change in the identity or status of the designated qualifying 
individual, except as discussed in paragraphs (b) and (c) of this 
section.
    (b) Operation after death of sole proprietor. In the event the owner 
of a licensed sole proprietorship dies, the licensee's executor, 
administrator, heir(s), or assign(s) may continue operation of such 
proprietorship solely with respect to shipments for which the deceased 
sole proprietor had undertaken to act as an ocean freight forwarder 
pursuant to the existing license, if the death is reported within thirty 
(30) days to the Commission and to all principals for whom services on 
such shipments are to be rendered. The acceptance or solicitation of any 
other shipments is expressly prohibited until a new license has been 
issued. Applications for a new license by the said executor, 
administrator, heir(s), or assign(s) shall be made on Form FMC-18 Rev., 
and shall be accompanied by the transfer fee set forth in paragraph (e) 
of this section.
    (c) Operation after retirement, resignation, or death of qualifying 
individual. When a partnership or corporation has been licensed on the 
basis of the qualifications of one or more of the partners or officers 
thereof, and such qualifying individual(s) shall no longer serve in a 
full-time, active capacity with the firm, the licensee shall report such 
change to the Commission within thirty (30) days. Within the same 30-day 
period, the licensee shall furnish to the Commission the name(s) and 
detailed ocean freight forwarding experience of other active managing 
partner(s) or officer(s) who may qualify the licensee. Such qualifying 
individual(s) must meet the applicable requirements set forth in 
Sec. 510.11(a) of this part. The licensee may continue to operate as an 
ocean freight forwarder while the Commission investigates the 
qualifications of the newly designated partner or officer.
    (d) Incorporation of branch office. In the event a licensee's 
validly operating branch office undergoes incorporation as a separate 
entity, the licensee may continue to operate such office pending receipt 
of a separate license, provided that:
    (1) The separately incorporated entity applies to the Commission for 
its own license within ten (10) days after incorporation, and
    (2) The continued operation of the office is carried on as a bona 
fide branch office of the licensee, under its full control and 
responsibility, and not as an operation of the separately incorporated 
entity.
    (e) Application form and fee. Applications for Commission approval 
of status changes or for license transfers

[[Page 143]]

under paragraph (a) of this section shall be filed in duplicate with the 
Director, Bureau of Tariffs, Certification and Licensing (``BTCL''), 
Federal Maritime Commission, on form FMC-18 Rev., together with a 
processing fee of $362, made payable by money order, certified check or 
cashier's check to the Federal Maritime Commission. Should a personal 
check not be honored when presented for payment, the processing of the 
application shall be suspended until the processing fee is paid.
    (f) Acquisition of one or more additional licensees. In the event a 
licensee acquires one or more additional licensees, for the purpose of 
merger, consolidation, or control, the acquiring licensee shall advise 
the Commission of such change within thirty days after such change 
occurs by submitting in duplicate, an amended Form FMC-18, Rev. No 
application fee is required when reporting this change.

[49 FR 36297, Sept. 14, 1984, as amended at 57 FR 40129, Sept. 2, 1992; 
59 FR 59171, Nov. 16, 1994; 63 FR 50536, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50536, Sept. 22, 1998, the first 
sentence of Sec. 510.19(e) was revised, effective Nov. 2, 1998. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 510.19  Changes in organization.

                                * * * * *

    (e) Application form and fee. Applications for Commission approval 
of status changes or for license transfers under paragraph (a) of this 
section shall be filed in duplicate with the Director, Bureau of 
Tariffs, Certification and Licensing, Federal Maritime Commission, on 
form FMC-18 Rev., together with a processing fee of $365, made payable 
by money order, certified check or cashier's check to the Federal 
Maritime Commission. * * *

                                * * * * *



Subpart C--Duties and Responsibilities of Freight Forwarders; Forwarding 
                     Charges; Reports to Commission



Sec. 510.21  General duties.

    (a) License; name and number. Each licensee shall carry on the 
business of forwarding only under the name in which its license is 
issued and only under its license number as assigned by the Commission. 
Wherever the licensee's name appears on shipping documents, its FMC 
license number shall also be included.
    (b) Stationery and billing forms; notice of shipper affiliation. (1) 
The name and license number of each licensee shall be permanently 
imprinted on the licensee's office stationery and billing forms. The 
Commission may temporarily waive this requirement for good cause shown 
if the licensee rubber stamps or types its name and FMC license number 
on all papers and invoices concerned with any forwarding transaction.
    (2) When a licensee is a shipper or seller of goods in international 
commerce or affiliated with such an entity, the licensee shall have the 
option of: (i) Identifying itself as such and/or, where applicable, 
listing its affiliates on its office stationery and billing forms, or 
(ii) including the following notice on such items:

This company is a shipper or seller of goods in international commerce 
or is affiliated with such an entity. Upon request, a general statement 
of its business activities and those of its affiliates, along with a 
written list of the names of such affiliates, will be provided.

    (c) Use of license by others; prohibition. No licensee shall permit 
its license or name to be used by any person who is not a bona fide 
individual employee of the licensee. Unincorporated branch offices of 
the licensee may use the license number and name of the licensee if such 
branch offices: (1) Have been reported to the Commission in writing; and 
(2) are covered by an increased bond in accordance with Sec. 510.14(c).
    (d) Arrangements with forwarders whose licenses have been revoked. 
Unless prior written approval from the Commission has been obtained, no 
licensee shall, directly or indirectly:
    (1) Agree to perform forwarding services on export shipments as an 
associate, correspondent, officer, employee, agent, or sub-agent of any 
person whose license has been revoked or suspended pursuant to 
Sec. 510.16;
    (2) Assist in the furtherance of any forwarding business of such 
person;

[[Page 144]]

    (3) Share forwarding fees or freight compensation with any such 
person; or
    (4) Permit any such person, directly or indirectly, to participate, 
through ownership or otherwise, in the control or direction of the 
freight forwarding business of the licensee.
    (e) Arrangements with unauthorized persons. No licensee shall enter 
into an agreement or other arrangement (excluding sales agency 
arrangements not prohibited by law or this part) with an unlicensed 
person so that any resulting fee, compensation, or other benefit inures 
to the benefit of the unlicensed person. When a licensee is employed for 
the transaction of forwarding business by a person who is not the person 
responsible for paying the forwarding charges, the licensee shall also 
transmit to the person paying the forwarding charges a copy of its 
invoice for services rendered.
    (f) False or fraudulent claims, false information. No licensee shall 
prepare or file or assist in the preparation or filing of any claim, 
affidavit, letter of indemnity, or other paper or document concerning a 
forwarding transaction which it has reason to believe is false or 
fraudulent, nor shall any such licensee knowingly impart to a principal, 
common carrier or other person, false information relative to any 
forwarding transaction.
    (g) Response to requests of Commission. Upon the request of any 
authorized representative of the Commission, a licensee shall make 
available promptly for inspection or reproduction all records and books 
of account in connection with its forwarding business, and shall respond 
promptly to any lawful inquiries by such representative.
    (h) Policy against rebates. The following declaration shall appear 
on all invoices submitted to principals:

(Name of firm) has a policy against payment, solicitation, or receipt of 
any rebate, directly or indirectly, which would be unlawful under the 
United States Shipping Act of 1984.



Sec. 510.22  Forwarder and principal; fees.

    (a) Compensation or fee sharing. No licensee shall share, directly 
or indirectly, any compensation or freight forwarding fee with a 
shipper, consignee, seller, or purchaser, or an agent, affiliate, or 
employee thereof; nor with any person advancing the purchase price of 
the property or guaranteeing payment therefor; nor with any person 
having a beneficial interest in the shipment.
    (b) Withholding information. No licensee shall withhold any 
information concerning a forwarding transaction from its principal.
    (c) Due diligence. Each licensee shall exercise due diligence to 
ascertain the accuracy of any information it imparts to a principal 
concerning any forwarding transaction.
    (d) Errors and omissions. Each licensee shall comply with the laws 
of the United States and any involved State, Territory, or possession 
thereof, and shall assure that to the best of its knowledge there exists 
no error, misrepresentation in, or omission from any export declaration, 
bill of lading, affidavit, or other document which the licensee executes 
in connection with a shipment. A licensee who has reason to believe that 
its principal has not, with respect to a shipment to be handled by such 
licensee, complied with the laws of the United States or any State, 
Commonwealth or Territory thereof, or has made any error or 
misrepresentation in, or omission from, any export declaration, bill of 
lading, affidavit, or other paper which the principal executes in 
connection with such shipment, shall advise its principal promptly of 
the suspected noncompliance, error, misrepresentation or omission, and 
shall decline to participate in any transaction involving such document 
until the matter is properly and lawfully resolved.
    (e) Express written authority. No licensee shall endorse or 
negotiate any draft, check, or warrant drawn to the order of its 
principal without the express written authority of such principal.
    (f) Receipt for cargo. Each receipt issued for cargo by a licensee 
shall be clearly identified as Receipt for Cargo and be readily 
distinguishable from a bill of lading.
    (g) Invoices; documents available upon request. A licensee may 
charge its principal for services rendered. Upon request of its 
principal, each licensee shall provide a complete breakout of the 
components of its charges and a

[[Page 145]]

true copy of any underlying document or bill of charges pertaining to 
the licensee's invoice. The following notice shall appear on each 
invoice to a principal:

Upon request, we shall provide a detailed breakout of the components of 
all charges assessed and a true copy of each pertinent document relating 
to these charges.

    (h) Special contracts. To the extent that special arrangements or 
contracts are entered into by a licensee, the licensee shall not deny 
equal terms to other shippers similarly situated.
    (i) Reduced forwarding fees. No licensee shall render, or offer to 
render, any freight forwarding service free of charge or at a reduced 
fee in consideration of receiving compensation from a common carrier or 
for any other reason. Exception: A licensee may perform freight 
forwarding services for recognized relief agencies or charitable 
organizations, which are designated as such in the tariff of the common 
carrier, free of charge or at reduced fees.
    (j) Accounting to principal. Each licensee shall account to its 
principal(s) for overpayments, adjustments of charges, reductions in 
rates, insurance refunds, insurance monies received for claims, proceeds 
of c.o.d. shipments, drafts, letters of credit, and any other sums due 
such principal(s).



Sec. 510.23  Forwarder and carrier; compensation.

    (a) Disclosure of principal. The identity of the shipper must always 
be disclosed in the shipper identification box on the bill of lading. 
The licensee's name many appear with the name of the shipper, but the 
licensee must be identified as the shipper's agent.
    (b) Certification required for compensation. A common carrier may 
pay compensation to a licensee only pursuant to such common carrier's 
tariff provisions. Where a common carrier's tariff provides for the 
payment of compensation, such compensation shall be paid on any shipment 
forwarded on behalf of others where the licensee has provided a written 
certification as prescribed in paragraph (c) of this section and the 
shipper has been disclosed on the bill of lading as provided for in 
paragraph (a) of this section. The common carrier shall be entitled to 
rely on such certification unless it knows that the certification is 
incorrect. The common carrier shall retain such certification for a 
period of five (5) years.
    (c) Form of certification. Where a licensee is entitled to 
compensation, the licensee shall provide the common carrier with a 
signed certification which indicates that the licensee has performed the 
required services that entitle it to compensation. The certification 
shall read as follows:

The undersigned hereby certifies that neither it nor any holding 
company, subsidiary, affiliate, officer, director, agent or executive of 
the undersigned has a beneficial interest in this shipment; that it is 
the holder of valid FMC License No. ------, issued by the Federal 
Maritime Commission and has performed the following services:
    (1) Engaged, booked, secured, reserved, or contracted directly with 
the carrier or its agent for space aboard a vessel or confirmed the 
availability of that space; and
    (2) Prepared and processed the ocean bill of lading, dock receipt, 
or other similar document with respect to the shipment.


The required certification may be placed on one copy of the relevant 
bill of lading, a summary statement from the licensee, the licensee's 
compensation invoice, or as an endorsement on the carrier's compensation 
check. Each licensee shall retain evidence in its shipment files that 
the licensee, in fact, has performed the required services enumerated on 
the certification.
    (d) Compensation pursuant to tariff provisions. No licensee, or 
employee thereof, shall accept compensation from a common carrier which 
is different than that specifically provided for in the carrier's 
effective tariff(s) lawfully on file with the Commission. No conference 
or group of common carriers shall deny in the export commerce of the 
United States compensation to an ocean freight forwarder or limit that 
compensation to less than a reasonable amount.
    (e) Compensation; services performed by underlying carrier; 
exemptions. No licensee shall charge or collect compensation in the 
event the underlying common carrier, or its agent, has, at the request 
of such licensee, performed any of the forwarding services set forth in 
Sec. 510.2(h) unless such carrier or agent

[[Page 146]]

is also a licensee, or unless no other licensee is willing and able to 
perform such services.
    (f) Duplicative compensation. A common carrier shall not pay 
compensation for the services described in Sec. 510.23(c) more than once 
on the same shipment.
    (g) Licensed non-vessel-operating common carriers; compensation. (1) 
A non-vessel-operating common carrier or person related thereto licensed 
under this part may collect compensation when, and only when, the 
following certification is made together with the certification required 
under paragraph (c) of this section:

The undersigned certifies that neither it nor any related person has 
issued a bill of lading or otherwise undertaken common carrier 
responsibility as a non-vessel-operating common carrier for the ocean 
transportation of the shipment covered by this bill of lading.

    (2) Whenever a person acts in the capacity of a non-vessel-operating 
common carrier as to any shipment, such person shall not collect 
compensation, nor shall any underlying ocean common carrier pay 
compensation to such person for such shipment.
    (h) A freight forwarder may not receive compensation from a common 
carrier with respect to any shipment in which the forwarder has a 
beneficial interest or with respect to any shipment in which any holding 
company, subsidiary, affiliate, officer, director, agent, or executive 
of such forwarder has a beneficial interest.

[49 FR 36297, Sept. 14, 1984; 49 FR 38544, Oct. 1, 1984; 57 FR 40131, 
Sept. 2, 1992]



Sec. 510.24  Records required to be kept.

    Each licensee shall maintain in an orderly and systematic manner, 
and keep current and correct, all records and books of account in 
connection with its business of forwarding. These records must be kept 
in the United States in such manner as to enable authorized Commission 
personnel to readily determine the licensee's cash position, accounts 
receivable and accounts payable. The licensee must maintain the 
following records for a period of five years:
    (a) General financial data. A current running account of all 
receipts and disbursements, accounts receivable and payable, and daily 
cash balances, supported by appropriate books of account, bank deposit 
slips, cancelled checks, and monthly reconciliation of bank statements.
    (b) Types of services by shipment. A separate file shall be 
maintained for each shipment. Each file shall include a copy of each 
document prepared, processed, or obtained by the licensee, including 
each invoice for any service arranged by the licensee and performed by 
others, with respect to such shipment.
    (c) Receipts and disbursements by shipment. A record of all sums 
received and/or disbursed by the licensee for services rendered and out-
of-pocket expenses advanced in connection with each shipment, including 
specific dates and amounts.
    (d) Special contracts. A true copy, or if oral, a true and complete 
memorandum, of every special arrangement or contract with a principal, 
or modification or cancellation thereof, to which it may be a party. 
Authorized Commission personnel and bona fide shippers shall have access 
to such records upon reasonable request.



Sec. 510.25  Anti-rebate certifications.

    (a) Every licensed ocean freight forwarder shall file an anti-
rebating certificate on or before December 31, 1992, and thereafter, on 
or before December 31 of each succeeding even-numbered calendar year.
    (b) Every applicant for an ocean freight forwarder license shall 
file an anti-rebating certificate with its license application. Any 
application for an ocean freight forwarder license that does not include 
an anti-rebate certification in accordance with Sec. 510.12 and part 582 
of this chapter shall be rejected. Certificates filed with license 
applications shall be valid from the granting of an ocean freight 
forwarder license through the first succeeding December 31 of an even-
numbered calendar year.
    (c) The anti-rebating certificate shall comply with the requirements 
of part 582 of this chapter.

[57 FR 39623, Sept. 1, 1992]

[[Page 147]]



Sec. 510.26  Regulated Persons Index.

    The Regulated Persons Index is a database containing the names, 
addresses, phone/fax numbers and bonding information, where applicable, 
of Commission-regulated entities. The database may be purchased for $84 
by contacting BTCL, Federal Maritime Commission, Washington, DC 20573. 
Contact information is listed on the Commission's website at 
www.fmc.gov.

[63 FR 50536, Sept. 22, 1998]

    Effective Date Note: At 63 FR 50536, Sept. 22, 1998, Sec. 510.26 was 
added, effective Nov. 2, 1998.



Sec. 510.91  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    This section displays the control numbers assigned to information 
collection requirements of the Commission in this part by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act of 1980, 
Pub. L. 96-511. The Commission intends that this part comply with the 
requirements of section 3507(f) of the Paperwork Reduction Act, which 
requires that agencies display a current control number assigned by the 
Director of the Office of Management and Budget (OMB) for each agency 
information collection requirement:

------------------------------------------------------------------------
                                                            Current OMB
                         Section                            Control No.
------------------------------------------------------------------------
510.12 (Form FMC-18)....................................       3072-0018
510.14..................................................       3072-0018
510.15..................................................       3072-0018
510.19 (Form FMC-18)....................................       3072-0018
510.21 through 510.25...................................       3072-0018
------------------------------------------------------------------------



PART 514--TARIFFS AND SERVICE CONTRACTS--Table of Contents




                      Subpart A--General Provisions

Sec.
514.1  Scope, purpose, requirements, penalties and fees.
514.2  Definitions.
514.3  Exemptions and exclusions.
514.4  Content, filing and cancellation of tariff material; general.
514.5--514.6  [Reserved]

                       Subpart B-Service Contracts

514.7  Service contracts in foreign commerce.

             Subpart C--Form, Content and Use of Tariff Data

514.8  Electronic filing.
514.9  Filing/Amendment codes and required notice periods.
514.10  Other items used throughout ATFI.
514.11  Organization and tariff records; tariff scope.
514.12  Governing and general reference tariffs.
514.13  Commodities and tariff line items (``TLIs'').
514.14  [Reserved]
514.15  Tariff Rules.
514.16  [Reserved]
514.17  Essential terms of service contracts in foreign commerce.
514.18  Special permission.
514.19  Suspension of tariff matter.
514.20  Retrieval.
514.21  User charges.
514.91  OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

Exhibit 1 to Part 514--ATFI User Registration Form
Exhibit II to Part 514--Sample Abbreviated Format Service Contract

    Authority: 5 U.S.C. 552 and 553; 31 U.S.C. 9701; 46 U.S.C. app. 804, 
812, 814-817(a), 820, 833a, 841a, 843, 844, 845, 845a, 845b, 847, 1702-
1712, 1714-1716, 1718, 1721 and 1722; and sec. 2(b) of Pub. L. 101-92, 
103 Stat. 601.

    Source: 57 FR 36271, Aug. 12, 1992, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 514.1  Scope, purpose, requirements, penalties and fees.

    (a) Scope. The regulations of this part govern:
    (1) The publication and filing of tariffs, as well as service 
contracts and their essential terms, covering the transportation of 
property performed by common carriers in the foreign commerce of the 
United States and by combinations of such common carriers, including 
through transportation offered in conjunction with one or more carriers 
not otherwise subject to the Shipping Act of 1984 (46 U.S.C. app. 1702, 
et seq.).
    (2) The publication, filing, and posting of tariffs for the 
transportation of property or passengers performed by common carriers by 
water in interstate commerce which are subject to the Shipping Act, 
1916, as amended (46 U.S.C. app. 801, et seq.), including

[[Page 148]]

through transportation offered in conjunction with one or more common 
carriers not subject to said Shipping Act.
    (3) The filing of terminal tariffs by persons engaged in carrying on 
the business of furnishing wharfage, dock, warehouse or other terminal 
facilities within the United States or a commonwealth, territory, or 
possession thereof, in connection with a common carrier by water in the 
foreign or domestic offshore commerce of the United States.
    (4) The filing of tariffs by terminal barge operators in Pacific 
Slope States in the foreign and domestic commerce of the United States. 
See Sec. 514.3(a)(7).
    (5) The formatting of tariff materials for electronic filing, 
processing and retrieval.
    (b) Purpose. The tariff format and content requirements of this part 
reflect the Commission's responsibilities in identifying and preventing 
unreasonable preference or prejudice and unjust discrimination pursuant 
to section 10 of the Shipping Act of 1984. The purposes of this part are 
also to enable the Commission to:
    (1) Discharge its responsibilities under section 17 of the Shipping 
Act, 1916 and section 10 of the Shipping Act of 1984, by keeping 
informed of practices, rates and charges related thereto, instituted and 
to be instituted by marine terminals, and by keeping the public informed 
of such practices.
    (2) Determine, through the use of information obtained under this 
part, the propriety of the level of rates, fares, charges, and practices 
demanded, charged, collected or observed by carriers in the domestic 
offshore commerce of the United States under the Shipping Act, 1916, as 
amended by the Intercoastal Shipping Act, 1933 (46 U.S.C. app. 843, et 
seq.).
    (3) Facilitate, by electronic means, the filing, processing and 
retrieval of tariff materials to better promote the waterborne commerce 
of the United States.
    (c) Basic requirements. Unless exempted or excluded under 
Sec. 514.3, and as augmented by Sec. 514.8(k)(1), the following are the 
basic requirements under this part:
    (1) Foreign commerce of the United States. (i) Section 8 of the 
Shipping Act of 1984 requires common carriers and conferences of such 
common carriers to file with the Commission and keep open to public 
inspection, tariffs showing all rates, charges, classifications, Tariff 
Rules and practices for transportation between U.S. and foreign ports 
and between points on any through route which is established. These 
regulations implement this requirement and, in addition, the 
requirements of sections 9, 10 and 16 of the Shipping Act of 1984.
    (ii) Service contracts and their essential terms are also required 
to be filed by the 1984 Act and shall apply only to transportation of 
cargo moving from, to or through a United States port in the foreign 
commerce of the United States.
    (iii) Anti-rebate certification. (A) An anti-rebating certification 
shall be filed in paper format, as prescribed by part 582 of this 
chapter, by every common carrier in foreign commerce as a prerequisite 
to obtaining password authority to file its initial tariff under this 
part, and thereafter, on each succeeding December 31 of an even-numbered 
calendar year. Except for the initial certification, the certification 
filed on each succeeding December 31 of an even-numbered calendar year 
shall be valid for the two calendar years following the December 31 
filing date.
    (B) Failure of a common carrier to file an anti-rebate certification 
before filing initial tariffs, as required by this part and part 582 of 
this chapter, shall result in withholding or suspension of any filing 
authorization and rejection of that carrier's proposed tariff(s).
    (C) Any common carrier who fails to file an anti-rebate 
certification as required by part 582 of this chapter will be notified 
by Federal Register publication and by certified mail that if, within 
forty-five (45) days from the date the certified notice is mailed, the 
common carrier does not either establish that the required anti-rebate 
certification was filed in accordance with this part and part 582 of 
this chapter, or file the required anti-rebate certification, its 
tariff(s) will be cancelled and attempted filings rejected.

[[Page 149]]

    (D) In the event common carrier rates are published in one or more 
conference tariffs, the name of every common carrier who did not file an 
anti-rebate certification will be stricken from the list of carriers 
participating in those conference tariffs.
    (E) The tariff(s) of any common carrier who files an anti-rebate 
certification after December 31 but before the end of the forty-five 
(45) days' notice period will not be canceled; however, the common 
carrier will be subject to civil penalties as provided in parts 502 and 
582 of this chapter. The tariff(s) of any common carrier who files an 
anti-rebate certification after December 31 but before the end of the 
forty-five (45) days' notice period will not be canceled; however, the 
common carrier will be subject to civil penalties as provided in parts 
505 and 582 of this chapter. After the forty-five (45) days, any common 
carrier that does not have an anti-rebate certification on file with the 
Commission will be notified by Federal Register publication and 
certified mail, return receipt requested, that its tariff(s) have been 
canceled and/or its name has been stricken from conference tariff(s).
    (2) Domestic offshore commerce of the United States under the 
Shipping Act, 1916 and the Intercoastal Shipping Act, 1933. (i) Every 
domestic offshore carrier shall file with the Commission and keep open 
to public inspection, tariffs showing its actual rates, fares and 
charges for or in connection with transportation between all points on 
its own route, and all points on any through route established in 
conjunction with other carriers. Such tariffs shall plainly show the 
places between which freight or passengers will be carried and shall 
contain any classification of freight and passenger accommodations 
affecting or determining the rates applicable to such transportation and 
shall state separately each terminal or other charge, privilege, or 
facility granted or allowed to shippers or passengers and any Tariff 
Rules or regulations which in anywise change, affect, or determine any 
part of the total rates, fares or charges assessed or the value of 
service rendered to consignors, consignees or passengers.
    (ii) Only tariffs of persons engaged in common carriage by water may 
be filed. Common carriers subject to the Shipping Act, 1916, are those 
vessel operating and non-vessel-operating carriers providing 
transportation by water between:
    (A) Any of the 48 contiguous states or the District of Columbia and 
Alaska or Hawaii;
    (B) Any state or the District of Columbia and any territory, 
commonwealth, possession or district (excluding the District of 
Columbia);
    (C) Alaska and Hawaii;
    (D) Any territory, commonwealth, possession or district (excluding 
the District of Columbia) and any other such territory, commonwealth, 
possession, or district; and
    (E) Places in the same district, territory, commonwealth or 
possession (excluding the District of Columbia), and which are not 
solely engaged in transportation subject to the jurisdiction of the 
Interstate Commerce Commission under 49 U.S.C. Chapter 105.
    (3) Both foreign and domestic offshore commerce--(i) Terminal 
operators. (A) Every person carrying on the business of furnishing 
wharfage, dock, warehouse, or other terminal facilities as described in 
paragraph (a)(3) of this section, including, but 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, shall file, and shall 
keep open for inspection at all their places of business, a schedule or 
tariff showing all their rates, charges, Tariff Rules, and regulations 
relating to or connected with the receiving, handling, storing, and/or 
delivering of property at their terminal facilities,
    (B) Every tariff or tariff change shall be filed on or before its 
effective date, except as required by Commission Order or by agreements 
approved pursuant to section 15 of the Shipping Act, 1916 and/or 
effective under section 6 of the Shipping Act of 1984, and be kept open 
for public inspection as provided in paragraph (c)(3)(i)(A) of this 
section.

[[Page 150]]

    (C) Persons who file tariffs pursuant to requirements of Commission 
Orders or agreements, approved under section 15 of the Shipping Act, 
1916 and/or effective under section 6 of the Shipping Act of 1984, are 
not relieved of such requirements by this part.
    (ii) [Reserved]
    (4) Electronic filing. All tariffs filed under this part shall be 
properly formatted as provided in this part and in the ATFI ``Batch 
Filing Guide,'' under Sec. 514.8(c)(3).
    (d) Rejection of tariff data. (1) Acceptance of tariff matter does 
not establish the legality of the rates and practices described therein. 
The mere filing of a tariff does not excuse the tariff owner or 
publisher from the obligations of the 1984 Act or this chapter, 
regardless of whether these obligations preceded or followed the filing 
of the tariff in question.
    (2) Any tariff matter submitted for filing, including service 
contracts and their essential terms, which fails in any respect to 
conform with the applicable shipping statutes, with the provisions of 
this part, or with a Commission Order, is subject to rejection or 
partial rejection after filing.
    (3) Notices of rejection, with reasons therefor, will be made 
available to filers through electronic mail and, if not accessed by the 
filer within a certain period of time, will be sent by regular U.S. 
mail. For service contracts and/or essential terms, the Commission may 
also notify the filing party of the Commission's intent to reject within 
20 days of filing. See Sec. 514.7(g). (Note: There will be no notice of 
rejection for attempted filings which are not accepted into the system 
because they are not syntactically correct for processing.)
    (4) Upon rejection, rejected tariff matter is void and its use is 
unlawful.
    (5) After rejection, the filer is responsible for putting its tariff 
in order. See Sec. 514.9(b)(19)(iv).
    (6) The ``Status'' function on many ATFI screens displays a pop-up 
window that shows the status of a filed tariff item, including a code 
that identifies whether it was accepted or rejected, a description of 
the code, and comments entered by an FMC Examiner regarding a rejected 
item.
    (e) Penalties; suspension of tariff material. (1) Operating without 
an effective tariff on file with the Commission or charging rates not in 
conformance with such a tariff is unlawful.
    (2) Foreign commerce. Pursuant to section 13 of the Shipping Act of 
1984, operating without an effective tariff on file or charging rates 
not in conformance with such a tariff is subject to a civil penalty of 
not more than $5,000 for each violation unless the violation was 
willfully and knowingly committed, in which case the amount of civil 
penalty may not exceed $25,000 for each violation. Each day of a 
continuing violation constitutes a separate offense. Additionally, the 
Commission may suspend any or all tariffs of the common carrier, or that 
common carrier's right to use any or all tariffs of conferences of which 
it is a member, for a period not to exceed 12 months. See Sec. 514.19.
    (3) Domestic offshore commerce. (i) The Commission may at any time 
direct the cancellation of tariff matter which does not conform to the 
1916 Act or this part. See Sec. 514.19.
    (ii) Violations of the provisions of this part are subject to a 
civil penalty of not more than $1,000 for each day such violation 
continues.
    (f) Filing fee. Under the authority of the Independent Offices 
Appropriation Act, 31 U.S.C. 9701, the Commission assesses a filing fee 
for ATFI filings. See Sec. 514.21(i) for filing fees.

[57 FR 36271, Aug. 12, 1992, as amended at 57 FR 39623, Sept. 1, 1992; 
59 FR 63908, Dec. 12, 1994; 60 FR 27229, May 23, 1995; 61 FR 66617, Dec. 
18, 1996]



Sec. 514.2  Definitions.

    The following definitions (in alphabetical order) shall apply to the 
regulations of this part and to all tariffs and service contracts filed 
pursuant to them, unless otherwise indicated by the context of this 
part.
    Across-the-board increase (domestic offshore commerce) means any 
change in rates, fares, or charges in domestic offshore commerce which 
will: (1) Result in an increase in not less than 50 percent of the total 
rate, fare or charge items in the tariffs per trade of any carrier, and 
(2) directly result in an increase in gross revenues of said carrier

[[Page 151]]

for the particular trade of less than 3 percent. See Sec. 514.9(b)(1).
    Alternate port service means substituted service whereby the vessel-
operating common carrier for whom the tariff object is filed uses 
someone else to perform the transportation between the point at which 
the cargo was tendered by the shipper and the port at which the cargo is 
actually loaded on the filing carrier's vessel, or between the port at 
which the cargo is discharged from the filing carrier's vessel and the 
point at which the cargo is to be tendered to the consignee.
    Amendment means any change, alteration, correction or modification 
of an existing tariff.
    Assessorial (accessorial) means a particular service or condition, 
other than the basic transportation, which is usually described in a 
commodity description, TLI, or Tariff Rule, and for which a charge may 
be added to the basic ocean freight rate. See Sec. 514.10(d).
    Assessorial charge means the amount determined for an assessorial 
service or condition that is added to the basic ocean freight rate. See 
Sec. 514.10(d).
    Assessorial charge calculation means an algorithmic representation 
of the conditions and mathematical steps necessary to calculate an 
assessorial charge.
    Associative check means an automated comparative check of data filed 
with ATFI to check for logical conformity with Commission tariff filing 
rules and previously filed tariff matter. See Sec. 514.8(n)(1)(iii).
    ATFI means the Commission's Automated Tariff Filing and Information 
System, a computer-based system for creating, filing, processing and 
retrieving ocean freight and terminal tariffs and the essential terms of 
service contracts.
    Availability (period of) means the process of offering essential 
terms of a service contract to all similarly situated shippers who can 
accept them for the purpose of entering their own service contract (for 
a period of 30 days or more). See Sec. 514.17(d)(3).
    Batch filing means the process by which a tariff filer can transmit 
to the Commission tariff matter which has been created on the filer's 
own computer. (Also see ``on-line batch filing,'' ``in-bulk batch 
filing'' and ``tape batch filing''). See Sec. 514.8 (c), (d)(3), and 
(l).
    Batch Filing Guide means an ATFI user document, available upon 
request from the Commission, which defines the procedures and technical 
requirements for batch filing. See Sec. 514.8(d)(3).
    BTCL means the Commission's Bureau of Tariffs, Certification and 
Licensing.
    Bulk cargo means cargo that is loaded and carried in bulk without 
mark or count, in a loose unpackaged form, having homogeneous 
characteristics. Bulk cargo loaded into intermodal equipment, except 
LASH or Seabee barges, is subject to mark and count and is, therefore, 
subject to the tariff filing requirements of this part.
    Checking means the service of counting and checking cargo against 
appropriate documents for the account of the cargo or the vessel, or 
other person requesting same. See ``terminal services.'' See 
Sec. 514.15(b)(23).
    Chemical parcel tanker. See ``common carrier.''
    Co-loading (foreign commerce) means the combining of cargo, in the 
import or export commerce of the United States, by two or more NVOCCs 
for tendering to an ocean carrier under the name of one or more of the 
NVOCCs. See Sec. 514.15(b)(14).
    Combination rate means a rate for a shipment moving under intermodal 
transportation which is computed by the addition of a TLI, and an inland 
rate(s) applicable from/to inland point(s) not covered by said TLI.
    Commission means the Federal Maritime Commission.
    Commodity description means a comprehensive description of a 
commodity listed in a tariff, including a brief definition of the 
commodity, any applicable assessorial, related assessorial charges if 
any, and the commodity index entries by which the commodity is 
referenced.
    Commodity description number means a 10-digit number used to 
identify a commodity description. See Sec. 514.13(a).
    Commodity index means an index of the commodity descriptions 
contained in a tariff. See Sec. 514.13(a).
    Commodity rates means rates for shipping to or from specific 
locations a commodity or commodities specifically

[[Page 152]]

named or described in the tariff in which the rate or rates are 
published. See Sec. 514.13(a).
    Common carrier or carrier (foreign commerce) means a person holding 
itself out to the general public to provide transportation by water of 
cargo between the United States and a foreign country for compensation 
that:
    (1) Assumes responsibility for the transportation from port or point 
of receipt to the port or point of destination; and
    (2) Utilizes, for all or part of that transportation, a vessel 
operating on the high seas or the Great Lakes between a port in the 
United States and a port in a foreign country, except that the term does 
not include a common carrier engaged in ocean transportation by ferry 
boat, ocean tramp, or chemical parcel tanker.

As used in this paragraph, ``chemical parcel-tanker'' means a vessel 
whose cargo-carrying capability consists of individual cargo tanks for 
bulk chemicals that are a permanent part of the vessel, that have 
segregation capability with piping systems to permit simultaneous 
carriage of several bulk chemical cargoes with minimum risk of cross-
contamination, and that has a valid certificate of fitness under the 
International Maritime Organization Code for the Construction and 
Equipment of Ships Carrying Dangerous Chemicals in Bulk.
    Conference means an association of ocean common carriers permitted, 
pursuant to an approved or effective agreement, to engage in concerted 
activity and to utilize a common tariff. The term shall also include any 
association of ocean common carriers which is permitted, pursuant to an 
effective agreement, to fix rates and to enter into service contracts, 
but the term does not include a joint service, consortium, pooling, 
sailing or transshipment agreement. For the term ``marine terminal 
conference (agreement),'' see Sec. 514.3(a)(8) and 572.307(b) of this 
chapter.
    Conformity checks means all types of system checks to determine 
compliance with the criteria of syntax checks (data form and format), 
validity checks (reference tables' entries), and associative checks.
    Consignee means the recipient of cargo from a shipper; the person to 
whom a transported commodity is to be delivered.
    Container means a demountable and reusable freight-carrying unit 
designed to be transported by different modes of transportation and 
having construction, fittings, and fastenings able to withstand, without 
permanent distortion or additional exterior packaging or containment, 
the normal stresses that apply on continuous all-water and intermodal 
transportation. The term includes dry cargo, ventilated, insulated, 
refrigerated, flat rack, vehicle rack, liquid tank, and open-top 
containers without chassis, but does not include crates, boxes or 
pallets.
    Contract party means any party signing a service contract as a 
common carrier, conference, shipper or shippers' association. See 
Secs. 514.7 and 514.17.
    Controlled common carrier means an ocean common carrier that is, or 
whose operating assets are, directly or indirectly owned or controlled 
by the government under whose registry the vessels of the common carrier 
operate; ownership or control by a government shall be deemed to exist 
with respect to any common carrier if:
    (1) A majority portion of the interest in the common carrier is 
owned or controlled in any manner by that government, by any agency 
thereof, or by any public or private person controlled by that 
government; or
    (2) That government has the right to appoint or disapprove the 
appointment of a majority of the directors, the chief operating officer 
or the chief executive officer of the common carrier. See 
Secs. 514.3(a)(2); 514.3(b); 514.4(c); 514.9(b); and 514.13(b)(7).
    Data Element Dictionary (DED) means a list of the data fields and 
the values, terms, and expressions allowable for each field. The ATFI-
specific Data Element Dictionary is a section in the ATFI ``Batch Filing 
Guide.'' See Sec. 514.8(d)(3).
    Destination scope means a location group in a tariff detailing the 
allowable destinations for TLIs defined in that tariff. See 
Secs. 514.11(b)(10) and 514.13(b).
    Dockage means the charge assessed against a vessel for berthing at a

[[Page 153]]

wharf, pier, bulkhead structure, or bank or for mooring to a vessel so 
berthed. See also ``terminal services.''
    Domestic offshore carrier means a carrier engaged in the 
transportation by water of cargo and/or passengers on the high seas or 
the Great Lakes on regular routes from port to port between Alaska, 
Hawaii, a Territory, District or possession of the United States and any 
other State, Territory, District or possession of the United States, or 
between places in the same Territory, District or possession. See 
Sec. 514.1(c)(2)(ii).
    Domestic offshore commerce means commerce that may be engaged in by 
domestic offshore carriers. See Sec. 514.1(c)(2)(ii).
    Domestic offshore tariff means a tariff of port to port rates for 
transporting in domestic offshore commerce.
    Dummy algorithm. See ``null linkage.''
    Edit checks. See ``conformity checks.''
    Effective date means the date (12:01 a.m.) upon which a filed tariff 
or tariff element is scheduled to go into effect by the filer. See 
Secs. 514.9(a) and 514.10(a)(3).
    Equipment interchange agreement means a sample agreement which 
includes the general terms and conditions affecting cost (e.g., 
maintenance and repair requirements, insurance obligations, pickup or 
drop off charges and services such as tracing and replenishing fuel or 
refrigerant for reefer containers) that govern the use of carrier-
provided equipment following interchange, including cargo containers, 
trailers and chassis. It also includes the standard free time allowed, 
and detention or similar charges assessed. See Secs. 514.3(a)(1) and 
514.15(b)(21).
    Equipment interchange Tariff Rule or Equipment interchange tariff 
means either a Tariff Rule or general reference tariff which contains 
the terms and conditions, including standard free time and charges, 
governing the use of carrier equipment following interchange, and may 
incorporate an equipment interchange agreement and the filer's 
exceptions thereto. See Secs. 514.12(c)(3) and 514.15(b)(21).
    Essential terms. See ``statement of essential terms.''
    Essential terms publication means the single publication which is 
maintained by each carrier or conference for service contract(s) and 
which contains statements of essential terms for every such contract. 
See Sec. 514.17(b).
    Expiration date means the last day, after which the entire tariff or 
tariff element (e.g., TLI) is no longer in effect. See ``thru date'' and 
Sec. 514.10(a).
    File or filing (of service contracts or amendments thereto) means 
actual receipt at the Commission's Washington, DC offices. See 
Sec. 514.7.
    File or filing (of tariff matter) means the electronic entering of 
tariff matter into the ATFI computer after receipt by electronic means 
or physical delivery of magnetic tape(s). See Sec. 514.8(c).
    Filing date (established by the ATFI system) means the date any 
tariff matter is electronically transmitted to and entered into the 
system as a successful transmission, or physically delivered to a 
designated location(s) and date-time stamped. See Secs. 514.8(c) and 
514.10(a)(2).
    FMC examiner means an employee of the Commission who reviews tariffs 
to ensure that they conform to the shipping statutes and the regulations 
set by the Commission.
    Foreign commerce means that commerce under the jurisdiction of the 
1984 Act.
    Forest products means forest products in an unfinished or 
semifinished state that require special handling moving in lot sizes too 
large for a container, 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 board in rolls and paper in rolls. See 
Secs. 514.3(b)(1) and 514.7(c).
    Free time means the specified period during which cargo may occupy 
space assigned to it on terminal property 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. See ``terminal 
services'' and Sec. 514.15(b)(23). ``Free time'' is also accorded to 
cargo

[[Page 154]]

at destination rail terminals and destination motor terminals located at 
inland points, as well as at container freight stations and other off-
dock delivery points removed from the terminal. Additionally, ``free 
time'' is a term commonly used in connection with use of carrier 
equipment at both origin and destination under, for example, equipment 
interchange tariffs.
    Freight forwarder. See ``ocean freight forwarder.''
    General decrease (domestic offshore commerce) means any change in 
rates, fares, or charges which will:
    (1) Result in a decrease in not less than 50 percent of the total 
rate, fare, or charge items in the tariffs per trade of any carrier; and
    (2) Directly result in a decrease in gross revenues of said carrier 
for the particular trade of not less than 3 percent. See 
Sec. 514.9(b)(7).
    General increase (domestic offshore commerce) means any change in 
rates, fares, or charges which will:
    (1) Result in an increase in not less than 50 percent of the total 
rate, fare, or charge items in the tariffs per trade of any carrier; and
    (2) Directly result in an increase in gross revenues of said carrier 
for the particular trade of not less than 3 percent. See 
Sec. 514.9(b)(7).
    Geographic area means the general location from which and/or to 
which cargo subject to a service contract will move in through service. 
See Sec. 514.17.
    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. See ``terminal services'' and Sec. 514.15(b)(23).
    Harmonized Code means the coding provisions of the Harmonized 
System. See Sec. 514.13(a).
    Harmonized System means the ``International Convention on the 
Harmonized Commodity Description and Coding System,'' which may be 
obtained from the Customs Cooperation Council (``CCC'') in Brussels, 
Belgium, or any of its authorized distributors. See Sec. 514.13(a).
    Heavy lift means the service of providing heavy lift cranes and 
equipment for lifting cargo. See ``terminal services'' and Sec. 514.15 
(b)(4) and (b)(23).
    In-bulk batch filing means batch filing by tariff publishers using 
the ATFI transaction sets to create files on magnetic tape for physical 
delivery to the Commission's ATFI Computer Center. Also referred to as 
tape batch filing. See Sec. 514.8(c)(3).
    Inland point means any city and associated state/province, country, 
U.S. ZIP code, or U.S. ZIP code range, which lies beyond port terminal 
areas. (A city may share the name of a port: the immediate ship-side and 
terminal area is the port, but the rest of the city is considered an 
inland point.) See Sec. 514.15(b)(1).
    Inland rate means a rate specified from/to an ocean port to/from an 
inland point, for specified modes of overland transportation. See 
Sec. 514.15(b)(1).
    Inland rate table means a structured matrix of geographic inland 
locations (points, U.S. ZIP code ranges, etc.) on one axis and 
transportation modes (truck, rail, etc.) on the other axis, with the 
inland rates specified at the matrix row and column intersections. See 
Sec. 514.15(b)(1).
    Interactive filing means the process by which a tariff filer 
accesses the ATFI system via dial-up, using telecommunications links, a 
modem and terminal, and interacts with the system on a transaction by 
transaction basis to retrieve its own tariff information, create tariff 
filings, and verify previous filings. See Sec. 514.8(c)(1).
    Interactive retrieval means the process by which any member of the 
public accesses the ATFI system via dial-up connection, using 
telecommunications links, a modem and a terminal, and interacts with the 
system on a transaction-by-transaction basis to retrieve tariff matter 
of carriers, conferences and terminal operators which has been filed in 
the ATFI database. See Sec. 514.20.
    Intermodal service. See ``intermodal transportation.''
    Intermodal transportation means continuous transportation involving 
more than one mode of service, (e.g., ship, rail, motor, air), for 
pickup and/or delivery at a point beyond the area of the port at which 
the vessel calls. The term ``intermodal transportation'' can apply to 
``through transportation (at through rates)'' or transportation on

[[Page 155]]

through routes using combination rates. See Sec. 514.15(b)(1).
    Joint rates means rates or charges established by two or more common 
carriers for ocean transportation over the combined routes of such 
common carriers. See Sec. 514.15(b)(1).
    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. See ``terminal services'' and Sec. 514.15(b)(23).
    Local rates means rates or charges for transportation over the route 
of a single common carrier (or any one common carrier participating in a 
conference tariff), the application of which is not contingent upon a 
prior or subsequent movement. See Sec. 514.15(b)(1).
    Location group means a logical collection of geographic points, 
ports, states/provinces, countries, or combinations thereof, which is 
primarily used to identify, by location group name, a group that may 
represent tariff origin and/or destination scope and TLI origin and/or 
destination. See Secs. 514.10(b) and 514.11(b)(10).
    Log in or log on means entering the ATFI system to perform functions 
such as filing or retrieving, and requires certain formalities, such as 
password, ID, etc. See Sec. 514.8(f).
    Log off or log out means exiting the ATFI system after the user is 
finished with functions such as filing or retrieving. Automatic log off 
or logout can occur after certain periods of time. See 
Sec. 514.20(c)(2).
    Loyalty contract (foreign commerce) means a contract with an ocean 
common carrier or conference, other than a service contract or contract 
based upon time-volume rates, by which a shipper obtains lower rates by 
committing all or a fixed portion of its cargo to that carrier or 
conference. See Sec. 514.15(b)(27).
    Marine terminal services agreement means an agreement as defined in 
Sec. 572.310(a). See Sec. 514.3(a)(8).
    1984 Act means the Shipping Act of 1984.
    1916 Act means the Shipping Act, 1916, as amended (including the 
Intercoastal Shipping Act, 1933, and the Transportation Act of 1940).
    Non-vessel-operating common carrier (or NVOCC) (foreign commerce) 
means a common carrier that does not operate the vessels by which the 
ocean transportation is provided and is a shipper in its relationship 
with an ocean common carrier.
    Null linkage or dummy algorithm means a functionality to label and 
link assessorial charges in full-text format to ATFI objects, such as 
TLIs and commodities. See Sec. 514.10(d).
    Ocean common carrier (foreign commerce) means a vessel-operating 
common carrier; but the term does not include one engaged in ocean 
transportation by ferry boat or ocean tramp.
    Ocean freight forwarder (foreign commerce) means a person in the 
United States that:
    (1) Dispatches shipments from the United States via common carriers 
and books or otherwise arranges space for those shipments on behalf of 
shippers; and
    (2) Processes the documentation or performs related activities 
incident to those shipments.
    On-line batch filing means the process by which a filer transmits 
tariff information, properly formatted in accordance with published ATFI 
transaction set formats, to the ATFI system as a ``batch'' of 
transactions via dial-up telecommunications links from its own computer. 
See Sec. 514.8(c)(2).
    Open for public inspection means the maintenance, in electronic or 
paper form, of a complete and current set of the tariffs used by a 
common carrier, conference or terminal operator, or to which it is a 
party, in its office(s). See Sec. 514.8(k).
    Open rate (foreign commerce) means a rate on a specified commodity 
or commodities over which a conference relinquishes or suspends its 
ratemaking authority, in whole or in part, thereby permitting each 
individual ocean common carrier member of the conference to fix its own 
rate on such commodity or commodities. See Secs. 514.13(b)(19) and 
514.15(b)(15).
    Organization name means an entity's name on file with the Commission 
and for which the Commission assigns an organization number. See 
Sec. 514.11(a).
    Organization record means information regarding an entity, including 
its

[[Page 156]]

name, address, organization number, carrier type, and the filing and 
effective dates of the organization record. See Sec. 514.11(a).
    Origin scope means a location group defining the geographic range of 
cargo origins covered by a tariff. See Secs. 514.11(b)(10) and 
514.13(b).
    Owner (of tariff material) means the carrier, conference or terminal 
establishing the rates and charges in tariff material and on whose 
behalf the tariff material is filed. See ``publisher (tariff).''
    Page-based tariff means the traditional type of tariff in which 
rates are listed on the pages of a paper document. See Sec. 514.8(k)(2).
    Person includes individuals, firms, partnerships, associations, 
companies, corporations, joint stock associations, trustees, receivers, 
agents, assignees and personal representatives.
    Point of rest means that area on the terminal facility which is 
assigned for the receipt of inbound cargo from the ship and from which 
inbound cargo may be delivered to the consignee, and that area which is 
assigned for the receipt of outbound cargo from shippers for vessel 
loading. See Sec. 514.15(b)(23).
    Port means a place at which a common carrier originates or 
terminates (by transshipment or otherwise) its actual ocean carriage of 
cargo or passengers as to any particular transportation movement. See 
Secs. 514.15(b)(1), (b)(13) and (b)(23).
    Port range means those ports in the country of loading or unloading 
of service contract cargo that are regularly served by the contracting 
carrier or conference, as specified in its tariff of general 
applicability, even if the contract itself contemplates use of but a 
single port within that range. See Secs. 514.7 and 514.17.
    Port 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, 
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. See 
Sec. 514.15(b)(23).
    Post, posted, posting (of tariff matter--domestic offshore commerce) 
means the maintenance of a complete, up-to-date tariff, in electronic or 
paper form, at the office(s) of each carrier party to the tariff under 
conditions assuring its availability for inspection by members of the 
public. See Sec. 514.8(k).
    Practices. See ``tariff.''
    Project rates means rates applicable to the transportation of 
materials and equipment to be employed in the construction or 
development of a named facility used for a major governmental, 
charitable, manufacturing, resource exploitation, public utility or 
public service purpose, and also including disaster relief projects. See 
Sec. 514.13(a)(5).
    Proportional rates means rates or charges assessed by a common 
carrier for transportation services, the application of which is 
conditioned upon a prior or subsequent movement. See Sec. 514.15(b)(1).
    Publisher (tariff) means an organization authorized to file or amend 
tariff information.
    Rate means a price quoted in a tariff for providing a specified 
level of transportation service for a stated cargo quantity, from origin 
to destination, on and after a stated effective date or within a defined 
time frame. See Sec. 514.13(b)(19).
    Retrieval. See ``interactive retrieval.''
    Rules (in a tariff, i.e., Tariff Rules) means the stated terms and 
conditions set by the tariff owner which govern the application of 
tariff rates, charges and other matters. See Sec. 514.15.
    Scope means the location group(s) (geographic grouping(s)) listing 
the ports or ranges of ports to and from which the tariff's rates apply. 
See Sec. 514.11(b)(10).
    Service contract means a contract between a shipper or shippers' 
association and an ocean common carrier or conference, in which the 
shipper makes a commitment to provide a certain minimum quantity of its 
cargo or freight revenue over a fixed time period, and the ocean common 
carrier or conference commits to a certain rate or rate schedule as well 
as a defined service level -- such as, assured space, transit time, port 
rotation, or similar

[[Page 157]]

service features. The contract may also specify provisions in the event 
of nonperformance on the part of either party. See Sec. 514.7.
    Service contract records means such documents and information as 
will enable the Commission to verify compliance with the terms of a 
service contract and shall include freighted ocean bills of lading or 
equivalent shipping documents which establish that the terms of the 
contract are being or have been met. See Sec. 514.7(m).
    Shipment means all of the cargo carried under the terms of a single 
bill of lading.
    Shipper means an owner or person for whose account the ocean 
transportation of cargo is provided and includes the person to whom 
delivery is to be made (consignee).
    Shippers'association (foreign commerce) means a group of shippers 
that consolidates or distributes freight on a nonprofit basis for the 
members of the group in order to secure carload, truckload, or other 
volume rates or service contracts.
    Special case number means a code number assigned by the Commission 
to a specific filer for a limited, designated purpose, such as for a 
particular rate (TLI) increase to go into effect on less than statutory 
notice by special permission or for other ATFI associative checks to be 
bypassed. See Sec. 514.9(b)(19).
    Special permission means permission, authorized by the Commission, 
for certain tariff filings that do not conform with applicable 
regulations, usually involving effectiveness on less than the normal 
statutory notice.
    Specimen bill of lading means a sample bill of lading contained in a 
tariff for example purposes, which, in ATFI, is achieved by 
electronically entering the terms contained on the carrier's bill of 
lading in the appropriate Tariff Rule. See Sec. 514.15(b)(8).
    Statement of essential terms means the concise summary of all 
essential terms of a service contract required to be filed with the 
Commission and made available to the general public in tariff format by 
the carrier or conference in its Essential Terms Publication. See 
Sec. 514.17.
    Submit or submission (foreign commerce--service contracts) means 
``file'' or ``filing'' under this section. See Sec. 514.7.
    Substituted service means the use of transportation performed by 
someone other than the carrier for whom the tariff object is filed. See 
``alternate port service,'' ``transshipment,'' and Secs. 514.15(b)(1) 
and (b)(13).
    Syntax check means an automatic system review of items in filings to 
check conformity with data element type and size, and other format 
requirements outlined in the ``Batch Filing Guide.'' See 
Sec. 514.8(n)(1)(i).
    Tape batch filing. See ``in-bulk batch filing.''
    Tariff means a publication containing the actual rates, charges, 
classifications, Tariff Rules, regulations and practices of a common 
carrier, conference of common carriers, or marine terminal operator. The 
term ``practices'' refers to those usages, customs or modes of operation 
which in any way affect, determine or change the transportation rates, 
charges or services provided by a common carrier or marine terminal 
operator, and, in the case of conferences, must be restricted to 
activities authorized by the basic conference agreement.
    Tariff amendments. See ``amendment.''
    Tariff filing means any tariff or modification thereto which is 
received by the Commission as properly filed pursuant to these rules. 
See ``file, filing'' and Sec. 514.8(c).
    Tariff line item (TLI) (with a 14-digit number) means a single 
freight rate, in effect on and after a specific date or for a specific 
time period, for the transportation of a stated cargo quantity, which 
may move from origin to destination under a single specified set of 
transportation conditions, such as container size or temperature. See 
Sec. 514.13(b).
    Tariff matter, tariff material, tariff publication means a tariff 
and the essential terms of service contracts, or any portion and 
amendment thereof, tendered for filing with the Commission pursuant to 
this part.
    Tariff of general applicability (foreign commerce--service 
contracts) means the effective tariff, on file at the Commission under 
this part, that would apply

[[Page 158]]

to the transportation in the absence of a service contract. See 
Secs. 514.7(h)(1)(iv) and 514.12(a).
    Tariff record means a collection of tariff identification data that 
include the name and type of the tariff, the tariff number, publishing 
office, units of weight and measure, and the date the tariff was filed, 
the date it became effective, and the date it expires. See 
Sec. 514.11(a).
    Tariff Rule. See ``rules (in a tariff)'' and Sec. 514.15.
    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 definition of 
terminal services set forth in this section shall be set forth in 
tariffs filed pursuant to this part 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 terminal tariffs. See Sec. 514.15(b)(23).
    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, after storage arrangements have been made. See 
``terminal services'' and Sec. 514.15(b)(23).
    Termination date means the expiration date of a service contract or 
the date the service contract is terminated for reasons not specifically 
set forth in the contract. See Sec. 514.17(d).
    Through rate (domestic offshore commerce) means a total charge for 
transportation from origin to destination. It may be a local rate, a 
joint rate, or a combination of separately established rates. See 
Sec. 514.15(b)(1).
    Through rate (foreign commerce) means the single amount charged by a 
common carrier in connection with through transportation. See 
Sec. 514.15(b)(1).
    Through route (domestic offshore commerce) means continuous 
transportation between origin and destination for which a through rate 
is assessed and which is offered or performed by:
    (1) A single domestic offshore carrier offering service between port 
terminal areas;
    (2) Two or more domestic offshore carriers; or
    (3) One or more domestic offshore carriers in connection with one or 
more other carriers. See Sec. 514.15(b)(1).
    Through transportation (domestic offshore commerce) means continuous 
transportation between points of origin and destination, either or both 
of which lie beyond port terminal areas, for which a through rate or 
combination rate is assessed and which is offered or performed by one or 
more carriers, at least one of which is a domestic offshore carrier.
    Through transportation (foreign commerce) means continuous 
transportation between points of origin and destination, either or both 
of which lie beyond port terminal areas, for which a through rate is 
assessed and which is offered or performed by one or more carriers, at 
least one of which is a common carrier, between a United States point or 
port and a foreign point or port. See Sec. 514.15(b)(1).
    Thru date means the date (11:59 p.m.) after which an amendment to a 
tariff element (e.g., TLI rate) is designated by the filer to be 
unavailable for use and the previously effective tariff element 
automatically goes back into effect. See ``expiration date'' and 
Sec. 514.10(a)(5).
    Time/volume rate (foreign commerce) means a rate published in a 
tariff which is conditional upon receipt of a specified aggregate volume 
of cargo or aggregate freight revenue over a specified period of time. 
See Secs. 514.13(b)(19) and 514.15(b)(26).
    TLI. See ``tariff line item.''
    Trade name(s) means a name or names that a tariff filer uses for 
conducting business, but which is not necessarily its legal name. This 
is also known as a ``d/b/a'' (doing business as) name. See Sec. 514.11.
    Traditional tariff means a page-based tariff in which all of the 
tariff components are contained on the pages of a paper document. See 
Sec. 514.8(k)(2).
    Transaction set means a pre-defined, ATFI-compatible data format 
used for

[[Page 159]]

electronic batch filing (electronic data interchange or EDI) of tariff 
information. When using third-party software for batch filing, all data 
must be formatted into the appropriate transaction sets before it can be 
batch filed to the Commission through the ATFI system. The transaction 
set formats are available to the public in the ATFI ``Batch Filing 
Guide.'' See Sec. 514.8(d)(3).
    Transshipment means the physical transfer of cargo from a vessel of 
one carrier to a vessel of another in the course of all-water or through 
transportation, where at least one of the exchanging carriers is a 
vessel-operating carrier subject to the FMC's jurisdiction. See 
Sec. 514.15(b)(13).
    Usage means the use of 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. See ``terminal 
services'' and Sec. 514.15(b)(23).
    Validity check means a system review of certain items in filings to 
check conformity with reference tables outlined in the transaction sets 
and standard glossaries employed in ATFI, e.g., origin and destination 
locations must be correctly spelled and be members of the ATFI locations 
glossary. See Sec. 514.8(n)(1)(ii).
    Via port(s) means the port or port group at which a vessel calls for 
through transportation of cargo from another origin and/or to another 
destination.
    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. See ``terminal services.''
    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 wharf. Wharfage is solely the charge for 
use of wharf and does not include charges for any other service. See 
``terminal services'' and Sec. 514.15(b)(23).
    Workdays (domestic offshore commerce) means all days except 
Saturdays, Sundays, and all federal holidays observed in the District of 
Columbia. See Sec. 514.9(b)(24)(ii).

[57 FR 36271, Aug. 12, 1992, as amended at 57 FR 44509, Sept. 28, 1992; 
57 FR 46322, Oct. 8, 1992; 58 FR 27, Jan. 4, 1993; 61 FR 66617, Dec. 18, 
1996]



Sec. 514.3  Exemptions and exclusions.

    Applications for exemptions are governed by Sec. 502.69 of this 
chapter. The following exemptions are granted from certain described 
requirements of this part:
    (a) Certain services involved in the following:
    (1) Equipment interchange agreements. Equipment-interchange 
agreements between common carriers subject to this part and inland 
carriers, where such agreements are not referred to in the carriers' 
tariffs and do not affect the tariff rates, charges or practices of the 
carriers, are exempt from the tariff filing requirements of the 1984 Act 
and the rules of this part. See Secs. 514.12(b)(3) and 514.15(b)(21).
    (2) Controlled common carriers in foreign commerce. A controlled 
common carrier shall be exempt from the provisions of this part 
exclusively applicable to controlled common carriers (See Sec. 514.4(c)) 
when:
    (i) The vessels of the controlling state are entitled by a treaty of 
the United States to receive national or most-favored-nation treatment;
    (ii) The controlling state subscribed, as of November 17, 1978, to 
the shipping policy statement contained in note 1, Annex ``A'' of the 
Code of Liberalization of Current Invisible Operations, adopted by the 
Council of the Organization for Economic Cooperation and Development;
    (iii) As to any particular rate, the controlled common carrier's 
tariff contains an amount set by the duly authorized action of a 
ratemaking body, except that this exemption is inapplicable to rates 
established pursuant to an agreement in which all the members are 
controlled common carriers not otherwise excluded by this paragraph (see 
Sec. 514.9(b)(24)(i)(A));
    (iv) The controlled common carrier's rates, charges, 
classifications, Tariff

[[Page 160]]

Rules or regulations govern transportation of cargo between the 
controlling state and the United States, including its districts, 
territories and possessions (see Sec. 514.9(b)(24)(i)(B)); or
    (v) The controlled common carrier operates in a trade served 
exclusively by controlled common carriers (see Sec. 514.9(b)(24)(i)(C)).
    (3) [Reserved]
    (4) Marine terminal operations of DOD. When the Department of 
Defense (including the military department and all agencies of the 
Department of Defense) carries on the business of furnishing wharfage, 
dock, warehouse, or other terminal facilities, as defined in Sec. 514.2, 
it shall be exempt from the terminal tariff filing and publication 
requirements of this part.
    (5)-(6) [Reserved]
    (7) Terminal barge operators in Pacific Slope States. Transportation 
provided by terminal barge operators in Pacific Slope States barging 
containers and containerized cargo by barge between points in the United 
States are exempt from the tariff filing requirements of 1984 Act and 
the rules of this part, where:
    (i) The cargo is moving between a point in a foreign country or a 
non-contiguous State, territory, or possession and a point in the United 
States;
    (ii) The transportation by barge between points in the United States 
is furnished by a terminal operator as a service substitute in lieu of a 
direct vessel call by the common carrier by water transporting the 
containers or containerized cargo under a through bill of lading; and
    (iii) Such terminal operator is a Pacific Slope State, municipality, 
or other public body or agency subject to the jurisdiction of the 
Federal Maritime Commission, and the only one furnishing the particular 
circumscribed barge service in question as of January 2, 1975.
    (8) Certain terminal services. (i) The filing requirements of this 
part do not apply to rates and charges for storage of cargo and services 
incidental thereto by public warehousemen pursuant to storage agreements 
covered by issued warehouse receipts.
    (ii) Rates, charges, rules and regulations governing terminal 
services provided to and paid for by common carriers by water pursuant 
to a marine terminal services agreement as defined in Sec. 572.310(a) of 
this chapter, need not be separately filed in tariffs for the purposes 
of this part, on condition that such rates, charges, rules and 
regulations are not determined through a marine terminal conference 
agreement, as defined in Sec. 572.307(b) of this chapter.
    (iii) Rates, charges, rules and/or regulations which but for 
paragraph (a)(8)(ii) of this section would be subject to the tariff-
filing requirements of this part may not unilaterally impose exculpatory 
provisions of a nature prohibited by Sec. 514.4(b)(3)(ii).
    (9) Terminal tariffs; electronic format requirements. Marine 
terminal tariffs are exempt from the commodity-description and TLI-
object requirements of this part, but only to the extent necessary to 
accommodate electronic filing of such tariffs in full-text format in 
Tariff Rule 34 (Sec. 514.15(b)(34).
    (10) [Reserved]
    (b) Certain cargo types--(1) Bulk, forest products, etc. (i) Except 
as provided in paragraphs (b)(1)(ii) and (iii) of this section, this 
part does not apply to bulk cargo, forest products, recycled metal 
scrap, waste paper and paper waste in foreign tariffs, terminal tariffs 
or service contracts.
    (ii) Marine terminal operators, carriers or conferences which 
voluntarily file tariff or service contract provisions covering 
otherwise exempt transportation thereby subject themselves to all 
statutory provisions and the requirements of this part, including the 
requirement to adhere to the filed tariff provisions or service 
contracts.
    (iii) An exempt commodity listed in paragraph (b)(1) of this section 
may be included in a service contract filed with the Commission only if:
    (A) There is a tariff of general applicability for the 
transportation which contains a specific commodity rate for the exempted 
commodity; or
    (B) The contract itself sets forth a rate or charge which will be 
applied if the contract is rejected or otherwise terminated.
    (2) Mail in foreign commerce. Transportation of mail between the 
United States and foreign countries is exempt

[[Page 161]]

from the filing requirements of the 1984 Act and the rules of this part.
    (3) Used military household goods--NVOCCs. Transportation of used 
military household goods and personal effects by non-vessel-operating 
common carriers is exempt from the filing requirements of the 1984 Act 
and the rules of this part.
    (4) Department of Defense cargo in foreign commerce. Transportation 
of U.S. Department of Defense cargo moving in foreign commerce under 
terms and conditions negotiated and approved by the Military Sealift 
Command (``MSC'') and published in a rate guide, quotation or tender is 
exempt from the tariff filing requirements of the 1984 Act and the rules 
of this part. An exact copy of the rate guide, quotation or tender, 
including any amendments thereto, shall be filed in paper format with 
the Commission as soon as it becomes available.
    (5) Used household goods--General Services Administration. 
Transportation of used military household goods and personal effects by 
non-vessel-operating common carriers shipped by federal civilian 
executive agencies under the International Household Goods Program 
administered by the General Services Administration is exempt from the 
filing requirements of the 1984 Act and the rules of this part.
    (c) Certain locations in foreign commerce--(1) Between foreign 
countries. This part does not apply to transportation of cargo between 
foreign countries, including that which is transshipped from one ocean 
common carrier to another (or between vessels of the same common 
carrier) at a U.S. port or transferred between an ocean common carrier 
and another transportation mode at a U.S. port for overland carriage 
through the United States, where the ocean common carrier accepts 
custody of the cargo in a foreign country and issues a through bill of 
lading covering its transportation to a foreign point of destination.
    (2) Between Canada and U.S. The following services are exempt from 
the filing requirements of the 1984 Act and the rules of this part:
    (i) Prince Rupert and Alaska--(A) Vehicles. Transportation by 
vessels operated by the State of Alaska between Prince Rupert, Canada 
and ports in southeastern Alaska, if all the following conditions are 
met:
    (1) Carriage of property is limited to vehicles;
    (2) Tolls levied for vehicles are based solely on space utilized 
rather than the weight or contents of the vehicle and are the same 
whether the vehicle is loaded or empty;
    (3) The vessel operator does not move the vehicles on or off the 
ship; and
    (4) The common carrier does not participate in any joint rates 
establishing through routes or in any other type of agreement with any 
other common carrier.
    (B) Passengers. Transportation of passengers, commercial buses 
carrying passengers, personal vehicles and personal effects by vessels 
operated by the State of Alaska between Seattle, Washington and Prince 
Rupert, Canada, only if such vehicles and personal effects are the 
accompanying personal property of the passengers and are not transported 
for the purpose of sale.
    (ii) British Columbia and Puget Sound Ports; rail cars--(A) Through 
rates. Transportation by water of cargo moving in rail cars between 
British Columbia, Canada and United States ports on Puget Sound, and 
between British Columbia, Canada and ports or points in Alaska, only if 
the cargo does not originate in or is not destined to foreign countries 
other than Canada, but only if:
    (1) The through rates are filed with the Interstate Commerce 
Commission and/or the Canadian Transport Commission; and
    (2) Certified copies of the rate divisions and of all agreements, 
arrangements or concurrences, entered into in connection with the 
transportation of such cargo, are filed with the Commission within 30 
days of the effectiveness of such rate divisions, agreements, 
arrangements or concurrences.
    (B) Bulk; port-to-port. Transportation by water of cargo moving in 
bulk without mark or count in rail cars on a local port-to-port rate 
basis between ports in British Columbia, Canada and United States ports 
on Puget Sound, only if the rates charged for any particular bulk type 
commodity on any

[[Page 162]]

one sailing are identical for all shippers, except that:
    (1) This exemption shall not apply to cargo originating in or 
destined to foreign countries other than Canada; and
    (2) The carrier will remain subject to all other provisions of the 
Shipping Act of 1984.
    (iii) Incan Superior, Ltd. Transportation by Incan Superior, Ltd. of 
cargo moving in railroad cars between Thunder Bay, Ontario, and 
Superior, Wisconsin, only if the cargo does not originate in or is not 
destined to foreign countries other than Canada, and if:
    (A) The through rates are filed with the Interstate Commerce 
Commission and/or the Canadian Transport Commission; and
    (B) Certified copies of the rate divisions and of all agreements, 
arrangements or concurrences entered into in connection with the 
transportation of such cargo are filed with the Commission within 30 
days of the effectiveness of such rate divisions, agreements, 
arrangements or concurrences.
    (d) Domestic offshore commerce--(1) Notice requirements; general. 
Carriers engaged in the transportation by water of passengers or 
property on the high seas or the Great Lakes on regular routes from port 
to port between Alaska, Hawaii, a Territory, District or possession of 
the United States and any other State, Territory, District or possession 
of the United States, or between places in the same Territory, District, 
or possession, may publish:
    (i) On one day's notice, any new or amendatory tariff matter that 
does not result in an increased cost to the shipper. This exemption may 
not apply to any decrease which is part of a ``general decrease in 
rates'' as defined by section 1 of the 1933 Act. See Sec. 514.2; and
    (ii) On seven workdays' notice, any new or amendatory tariff matter 
that results in an increased cost to the shipper. This exemption may not 
apply to any increase which is part of a ``general increase in rates'' 
as defined by section 1 of the 1933 Act (see Sec. 514.2), or any 
increase which is part of an ``across-the-board'' increase in rates as 
defined in Sec. 514.2.
    (2) Alaska--(i) Bethel--Kuskokwim Bay. Transportation between 
Bethel, Alaska and points in the Kuskokwim Bay region in the range from 
Platinum to Mekoryuk is exempt from the filing requirements of the 1916 
Act and the rules of this part.
    (ii) Seattle--S.E. Alaska on State-of-Alaska operated vessels. 
Transportation of passengers, commercial buses carrying passengers, 
personal vehicles and personal effects by vessels operated by the State 
of Alaska between Seattle, Washington, and ports in Southeastern Alaska, 
is exempt from the filing requirements of the 1916 Act and the rules of 
this part, only if said personal vehicles and personal effects are not 
transported for the purpose of sale, lease, or other commercial 
activities.
    (3) [Reserved]
    (4) Puerto Rico--(i) Bulk liquid cargo. Transportation between the 
continental United States and Puerto Rico of bulk liquid cargoes in 
quantities of not less than 200,000 gallons per shipment (i.e., a single 
shipper to a single consignee) is exempt from the filing requirements of 
the 1916 Act and the rules of this part, only if such shipments are 
carried in tank vessels designed exclusively for bulk liquid cargoes and 
which are certified under regulations approved by the U.S. Coast Guard 
pursuant to 46 U.S.C. 3306.
    (ii) [Reserved]
    (5) [Reserved]
    (e) Electronic filing. A temporary exemption from the electronic 
filing requirements of this part may be obtained by application under 
Sec. 514.8(a), but, during the period of such exemption and unless 
otherwise exempted by this part, tariff material is required to be filed 
in paper format.

[57 FR 36271, Aug. 12, 1992, as amended at 57 FR 44509, Sept. 28, 1992; 
57 FR 44700, Sept. 29, 1992; 58 FR 28790, May 17, 1993; 60 FR 44437, 
Aug. 28, 1995; 61 FR 66618, Dec. 18, 1996]



Sec. 514.4  Content, filing and cancellation of tariff material; general.

    (a) Effectiveness of new or initial and conference tariffs in the 
domestic offshore and foreign trades. Unless otherwise provided by the 
Commission or this part, all conference and carrier tariff material 
tendered for filing (including the tariffs of carriers entering a trade 
for the first time), shall bear an effective date which complies with 
the appropriate notice period(s) prescribed in

[[Page 163]]

Sec. 514.9 or in other sections of this part. The notice period between 
filing and effective date shall commence at 12:01 a.m. of the day of 
filing, as evidenced by the Commission's receipt notation. The tariff 
may take effect at 12:01 a.m. of the day after the notice period 
expires.
    (b) Prohibitions--(1) Foreign language tariffs. (i) Tariffs and 
essential terms of service contracts in foreign languages will not be 
accepted. Filers may, however, include foreign language commodity 
descriptions, TLI notes, and commodity index entries, but only if:
    (A) The non-English entries follow the English entries; and
    (B) The non-English text is precisely translated from the English.
    (ii) The English wording shall have precedence in any question of 
interpretation.
    (2) Ambiguous, duplicating and conflicting provisions. No person may 
publish and file any tariff matter which contains ambiguous language or 
duplicates or conflicts with any other tariff matter on file with the 
Commission in which such person is a party or participant, whether filed 
by such person or by an authorized agent.
    (3) Limiting or qualifying provisions--(i) Limitation of liability. 
Tariffs may not contain Tariff Rules purporting to limit liability for 
loss or damage in a manner that is prohibited by applicable statute or 
regulation.
    (ii) Exculpatory tariff provisions. No terminal tariff may contain 
provisions that exculpate or otherwise 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.
    (iii) Rates in other tariffs. Except as specifically allowed in this 
part (see Sec. 514.12):
    (A) No rate tariff may require reference to or be governed by 
another rate tariff; and
    (B) The publication of a statement in a tariff to the effect that 
the rates published therein take precedence over the rates published in 
some other tariff, or that the rates published in some other tariff take 
precedence over or alternate with rates published therein, is 
prohibited.
    (iv) Modification of essential terms. Essential terms of service 
contracts may not contain any provision permitting modification by the 
parties other than in full compliance with this part.
    (c) Controlled common carriers--(1) Controlled common carrier 
rates--(i) Level of rates and charges. Except as provided in 
Sec. 514.3(a)(2), no controlled common carrier may maintain rates or 
charges in its tariffs filed with the Commission that are below a level 
that is just and reasonable, nor may any such carrier establish or 
maintain unjust or unreasonable classifications, Tariff Rules, or 
regulations in those tariffs. An unjust or unreasonable classification, 
Tariff Rule or regulation means one that results or is likely to result 
in the carriage or handling of cargo at rates or charges that are below 
a just and reasonable level.
    (ii) Commission disapproval. The Commission may, at any time after 
notice and hearing, disapprove any rates, charges, classifications, 
Tariff Rules or regulations that the controlled common carrier has 
failed to demonstrate to be just and reasonable. In a proceeding under 
this paragraph, the burden of proof is on the controlled common carrier 
to demonstrate that its rates, charges, classifications, Tariff Rules or 
regulations are just and reasonable. Rates, charges, classifications, 
Tariff Rules or regulations filed by a controlled common carrier that 
have been rejected, suspended, or disapproved by the Commission are void 
and their use is unlawful.
    (iii) Effective date of rates. The rates, charges, classifications, 
Tariff Rules or regulations of controlled common carriers may not, 
without special permission of the Commission, become effective sooner 
than the 30th day after the date of filing with the Commission.
    (2) Classification as a controlled common carrier. (i) The 
Commission will notify any common carrier of its classification as a 
controlled common carrier and enter such classification in ATFI.
    (ii) Any common carrier contesting such a classification may, within 
30 days after the date of the Commission's notice, submit a rebuttal 
statement.

[[Page 164]]

    (iii) The Commission shall review the rebuttal and notify the common 
carrier of its final decision within 30 days from the date the rebuttal 
statement was filed.
    (d) Duty and authority to file--(1) General procedure. (i) Except as 
provided in paragraph (d)(1)(ii) of this section, authority to obtain or 
delegate authority for using USERID and password under Sec. 514.8(f) for 
filing and amending particular types of tariff material, as well as 
authority to change filing and editing authority, must be requested by a 
responsible official of the tariff owner in writing, using the 
registration form in exhibit 1 to this part, showing (or attaching) all 
necessary approvals and paying the appropriate fee under Sec. 514.21.
    (ii) In an emergency, a person, already authorized to maintain and 
edit its firm's organization record under Sec. 514.11(a), may change a 
``publisher'' under Sec. 514.11(a)(9)(iii), verbally notify BTCL, and 
promptly submit the proper documents.
    (2) Domestic offshore tariffs. (i) Tariffs in domestic offshore 
commerce may be filed only by a responsible official of, or a tariff 
agent appointed by, a domestic offshore carrier participating in the 
transportation offered therein. When a tariff agent is employed, a 
delegation of authority from each participating, domestic offshore 
carrier must be provided.
    (ii) The request for filing authority shall state that a tariff 
agent has been appointed as of a particular date, identify the agent by 
name and business address, indicate whether and under what circumstances 
any other person is authorized to serve as an alternate agent, and 
specifically set forth the agent's powers and duties to act for the 
carrier in tariff matters. Only one alternate agent may be appointed.
    (iii) More than one delegation of authority covering any one tariff 
is prohibited, except that governing tariffs filed pursuant to 
Sec. 514.12 may be the subject of separate delegations. Submission of a 
subsequent delegation of authority covering a tariff, governing tariff 
or group of tariffs, shall automatically revoke any earlier delegation 
as to that tariff or tariffs on the day the subsequent delegation is 
filed, as evidenced by the Commission's receipt notation.
    (iv) A delegation of authority to a tariff agent may be revoked in 
whole or in part by filing a written revocation which clearly identifies 
the delegation of authority and the particular powers and duties being 
revoked.
    (v) Should a carrier enter receivership, or otherwise come under the 
control of a trustee, the duty and authority to file tariff material 
shall be upon the receiver or trustee appointed until the receivership/
trusteeship is terminated.
    (3) Foreign tariffs. (i) Tariffs in foreign commerce shall be filed 
by an officer or employee of the common carrier or, if a conference 
tariff, by an officer or employee of the conference. In the alternative, 
filing may be accomplished through an agent authorized to act for such 
common carrier or conference.
    (ii) A common carrier or conference may delegate authority to a 
person, not an official or employee of such common carrier or 
conference, for the purpose of issuing all its tariffs or any particular 
tariff.
    (iii) Whenever there is a delegation of tariff-issuing authority by 
a common carrier or conference, the request shall set forth the exact 
limits of the agent's authority.
    (4) Conference-related situations in foreign commerce--(i) Admission 
to membership. Before a common carrier is admitted to membership in a 
conference, it shall electronically file notice of cancellation of any 
independent tariff applicable to the trade served by the conference, 
effective upon the date of admission to conference membership, making 
reference to the conference tariff and where the conference tariff may 
be examined. The filing of the independent tariff(s) and admission to 
conference membership may become effective upon the date of filing, 
except that, unless Special Permission is granted pursuant to 
Sec. 514.18, cancellation of the independent tariff and admission to 
conference membership requires 30 days' notice if:
    (A) The carrier is a controlled carrier, or
    (B) The addition of the carrier to the conference would result in a 
rate

[[Page 165]]

change from the carrier's independent tariff which causes an increase in 
cost to the shipper.
    (ii) Duties of members. (A) Common carrier participants in a 
conference tariff are not relieved from the necessity of complying with 
the Commission's regulations and the requirements of section 8(a)(1) of 
the 1984 Act with regard to keeping tariffs open for public inspection. 
See Sec. 514.8(k)(1).
    (B) A common carrier's obligation to file tariffs pursuant to 
section 8(a) of the 1984 Act and this part must be carried out as 
follows:
    (1) When the common carrier is not a party to an agreement, by 
filing its own tariff or tariffs.
    (2) When the common carrier is party to an agreement, by 
participation in a single tariff filed by the conference, except that 
this requirement shall not apply to:
    (i) Ratemaking agreements either between or among conferences, or 
between one or more conferences and one or more independent carriers; or
    (ii) New conference agreements, new members to such agreements, or 
enlargements of the geographic scope of conference agreements, until 
ninety (90) days after the fact, unless special permission to extend 
that period is granted for good cause shown.
    (C) When the common carrier's tariff is a conference tariff, the 
common carrier shall ensure that the conference publishes the common 
carrier's tariff provisions in the conference tariff.
    (iii) Independent action rates of controlled carriers. Conferences 
may file on behalf of their controlled common carrier members lower 
independent-action rates on less than 30 days' notice, subject to the 
requirements of their basic agreements and subject to such rates being 
filed at or above the level set by a member of the conference that has 
not been determined by the Commission to be a controlled common carrier 
subject to section 9 of the 1984 Act, in the trade involved.
    (5) Service contracts and essential terms in foreign commerce. (i) 
As further provided in paragraph (d)(5)(ii) of this section, the duty 
under this part to file service contracts, statements of essential terms 
and notices, and to maintain an essential terms publication under 
Sec. 514.17, shall be upon:
    (A) A service contract signatory carrier which is not a member of a 
conference for the service covered by the contract; or
    (B) The conference which:
    (1) Is signatory to the service contract; or
    (2) Has one or more member carriers signatory to a service contract 
for a service otherwise covered by the conference agreement.
    (ii) When a conference files a service contract for and on behalf of 
one or more of its member lines and the contract covers service from, to 
or between ports and/or points not included within the scope of the 
conference, the complete text of the statement of essential terms shall 
be simultaneously filed in the essential terms publications of both the 
conference(s) and carrier(s) involved, which shall comply with all other 
essential terms publication filing and maintenance requirements under 
Secs. 514.7 and 514.17.
    (6) Transfer of operations or control; changes in name or conference 
membership. (i)(A) Whenever a conference or common carrier with an 
individual tariff on file changes its name or transfers operating 
control to another entity or person, the person who will thereafter 
manage the conference or operate the common carrier service shall submit 
a written application to the FMC. The application shall be accompanied 
by appropriate completed ATFI User Registration Form(s) (exhibit 1 to 
this part), if needed, and with the proper user charge under 
Sec. 514.21(c) (for filer initial registration), to procedurally 
transfer the tariff to the succeeding person or firm. Subsequent 
amendments to such tariffs shall be in the name of the new conference or 
common carrier, as applicable.
    (B) Requests to procedurally transfer only part of the service 
extended under a given rate tariff will not be granted.
    (ii) Domestic offshore tariffs naming participating carriers shall 
be amended within 90 days whenever any participating carrier transfers 
its operations, transfers control of its business, or changes its name, 
and the successor carrier continues to participate in the service. The 
amendment shall delete

[[Page 166]]

all references to the transferring carrier (or old name) and substitute 
references to the successor carrier (or new name) in their place.
    (iii) Whenever the name of a common carrier which participates in a 
conference is changed, the conference shall file an appropriate 
amendment to its tariff indicating the participating common carrier's 
new name.
    (iv) Whenever the operation, control or ownership of a common 
carrier is transferred resulting in a majority portion of the interest 
of that common carrier being owned or controlled in any manner by a 
government under whose registry the vessels of the common carrier are 
operated, the common carrier shall immediately notify the Commission in 
writing of the details of the change.
    (e) Cancellation--(1) Tariffs. (i) An entire tariff may be canceled 
by the filer, or by the Commission for good cause, by appropriately 
changing the expiration date in the tariff record. See Sec. 514.11(b).
    (ii) Cancellation of a tariff due to a cessation of all service by 
the publishing carrier between the ports or points listed in the 
canceled tariff may take effect on the same day it is filed.
    (iii) The tariffs and delegations of authority of a carrier which 
ceases operations in a trade for more than 30 days (other than for 
seasonal discontinuance) shall be canceled within 60 days after the 
cessation of operations.
    (2) Essential terms. The statement of essential terms may not be 
canceled until after all of its associated service contracts, including 
any renewal or extension, have expired. In the event a contract is 
terminated under Sec. 514.7(l)(1)(ii), the effective date of the 
termination shall be used as the date of cancellation (contract 
termination date under Sec. 514.17(d)(5)).

[57 FR 36271, Aug. 12, 1992, as amended at 57 FR 44509, Sept. 28, 1992]



Secs. 514.5--514.6  [Reserved]



                      Subpart B--Service Contracts



Sec. 514.7  Service contracts in foreign commerce.

    (a) Scope and applicability. Service contracts shall apply only to 
transportation of cargo moving from, to or through a United States port 
in the foreign commerce of the United States. While tariffs and the 
essential terms of service contracts are required to be filed 
electronically and made available to the public under subpart C of this 
part, service contracts themselves and amendments thereto (incorporating 
mandatory essential terms as described in Sec. 514.17 and confidential 
names of shippers, etc.), as well as certain related notices, shall be 
filed in paper, hard copy format under this subpart and section.
    (b) Confidentiality. All service contracts and amendments to service 
contracts filed with the Commission shall, to the full extent permitted 
by law, be held in confidence.
    (c) Exempt commodities. Except as provided in paragraphs (c)(1) and 
(c)(2) of this section, this section does not apply to contracts 
relating to bulk cargo, forest products, recycled metal scrap, waste 
paper or paper waste.
    (1) Inclusion in service contracts. An exempt commodity listed in 
this paragraph may be included in a service contract filed with the 
Commission, but only if:
    (i) There is a tariff of general applicability for the 
transportation, which contains a specific commodity rate for the 
exempted commodity; or
    (ii) The contract itself sets forth a rate or charge which will be 
applied if the contract is rejected or otherwise terminated.
    (2) Waiver of exemption. Upon filing under this paragraph, the 
service contract and essential terms shall be subject to the same 
requirements as those for contracts involving non-exempt commodities.
    (d) Service contracts with non-vessel-operating common carriers. No 
ocean common carrier or conference may execute or file any service 
contract in which a contract party or an affiliate of such contract 
party or member of a shippers' association entitled to receive service 
under the contract is an NVOCC, unless such NVOCC has a tariff and proof 
of financial responsibility as required by sections 8 and 23 of the 
Shipping Act of 1984 and Commission regulations under this part and part 
583 of this chapter.

[[Page 167]]

    (e) Certification of shipper status--(1) Certification. The shipper 
contract party shall certify on the signature page of the service 
contract its shipper status, e.g., owner of the cargo, shippers' 
association, NVOCC, or specified other designation, and the status of 
every affiliate of such contract party or member of a shippers' 
association entitled to receive service under the contract. The 
certification shall be signed by the contract party.
    (2) Proof of tariff and bond. If the certification completed by the 
contract party under paragraph (e)(1) of this section identifies the 
contract party or an affiliate or member of a shippers' association as 
an NVOCC, the ocean common carrier or conference shall obtain proof that 
such NVOCC has a tariff and a bond as required under section 8 and 23 of 
the 1984 Act before signing the service contract. An ocean common 
carrier or conference can obtain proof of an NVOCC's compliance by 
consulting a current list published by the Commission of NVOCCs in 
compliance with the tariff and bonding requirements or by reviewing a 
copy of the tariff rule published by the NVOCC and in effect under 
Sec. 514.15(b)(24).
    (3) Joining shippers' association during term of contract. If an 
NVOCC joins a shippers' association during the term of a service 
contract and is entitled to receive service under the contract, the 
NVOCC shall provide to the ocean common carrier or conference the proof 
of compliance required by paragraph (e)(2) of this section prior to any 
shipments under the contract.
    (4) Reliance on NVOCC proof; independent knowledge. An ocean common 
carrier or conference executing a service contract shall be deemed to 
have complied with section 10(b)(15) of the 1984 Act upon meeting the 
requirements of paragraphs (e)(1) and (e)(2) of this section, unless the 
ocean common carrier had reason to know such certification or 
documentation of NVOCC tariff and bonding was false.
    (f) Availability of essential terms. A statement of the essential 
terms of each initial and amended service contract, as set forth in 
tariff format, shall be made available for inspection by the general 
public pursuant to the requirements of this section and Sec. 514.17.
    (1) Availability of terms. The essential terms of an initial or 
amended service contract shall be made available for use in a contract 
to all other shippers or shippers' associations similarly situated, 
under the same terms and conditions, for a specified period of no less 
than thirty (30) days from the date of filing of the essential terms of 
the service contract or amendment thereto under Sec. 514.17, as may be 
adjusted under paragraph (j)(4) of this section, except that, where a 
shipper or shippers' association not a party to the original contract 
exercises its right to access the amended contract, the minimum volume 
obligation for the accessing shipper or shippers' association shall be 
pro-rated according to the relation between the duration of the original 
(now amended) contract and the duration of the access contract. The 
conference or carrier may specify in the Essential Terms Publication the 
information which must accompany a me-too request and the procedures for 
submitting same.
    (2) Me-too requests and replies. (i) Whenever a shipper or shippers' 
association desires to enter into an initial or amended service contract 
with the same essential terms as in another existing service contract, a 
request shall be submitted to the carrier or conference in writing.
    (ii) The carrier or conference shall reply to the request by 
mailing, or other suitable form of delivery, within 14 days of the 
receipt of the request, either a contract offer with the same essential 
terms which can be accepted and signed by the recipient upon receipt, or 
an explanation in writing why the applicant is not entitled to such a 
contract. The carrier or conference may require the contract offer to be 
accepted within a specified period of time.
    (3) Filing of me-too contracts. The service contract resulting from 
a request under this section may be implemented as described in 
paragraph (j)(3) of this section, and no additional statement of 
essential terms need be filed. The letter transmitting the service 
contract itself for filing, however, shall indicate

[[Page 168]]

that it is a ``me-too'' contract and reference the essential terms FMC 
File Number. See Sec. 514.17(d)(4)(i).
    (4) Changes in me-too contracts. In the case of any expressly 
described subsequent event which results in a change to an original 
essential term by the operation of a contract clause in the service 
contract under Sec. 514.17(d)(7)(viii), the new essential term(s) shall 
be immediately made available in writing to other shippers and shippers' 
associations which have entered into a contract with the same, original 
essential terms, and which are similarly affected by the event. Copies 
shall also be submitted to the Commission under paragraph (g)(2)(i) of 
this section.
    (g) Filing of service contract materials. Authorized persons under 
Sec. 514.4(d)(5) shall file with BTCL the following:
    (1) Service contracts. Within ten (10) days of the electronic filing 
of essential terms under Sec. 514.17, a true and complete copy of the 
related contract(s) shall be submitted in form and content as provided 
by this section and Sec. 514.17, in single copy contained in an 
envelope, which contains no other material, addressed to: ``Director, 
Bureau of Tariffs, Certification and Licensing, Federal Maritime 
Commission, Washington, DC 20573.'' The envelope shall state ``This 
Envelope Contains a Confidential Service Contract.'' If multiple service 
contracts are filed in an envelope, the pages of each individual 
contract should be fastened together. The top of each page of a filed 
service contract shall be stamped ``Confidential.''
    (2) Notices of: change to contract, contract party or rate; 
availability of changed terms to similarly-situated shippers; and 
settlement of account. There shall be filed with the Commission, 
pursuant to the procedures of paragraph (g)(1) of this section, a 
detailed notice, within 30 days of the occurrence, of:
    (i) The making available of contingent or amended essential terms to 
similarly situated shippers under paragraphs (f)(1) or (f)(4) of this 
section;
    (ii) Termination under paragraph (l)(1)(ii) of this section by 
mutual agreement, breach or default not covered by the service contract;
    (iii) The adjustment of accounts, by rerating, liquidated damages, 
or otherwise under paragraph (l) of this section;
    (iv) Final settlement of any account adjusted as described in 
paragraph (g)(2)(iii) of this section; and
    (v) Any change to:
    (A) The name of a basic contract party under paragraph (h)(1)(v) of 
this section; or
    (B) The list of affiliates under paragraph (h)(1)(vi) of this 
section of any contract party entitled to receive or authorized to offer 
services under the contract.
    (h) Form and content. Every service contract shall clearly, legibly 
and accurately set forth in the following order:
    (1) On the first page, preceding any other provisions: (i) A unique 
service contract number, and consecutively numbered amendment number, if 
any, bearing the prefix ``SC'' (see Sec. 514.17(d)(2));
    (ii) The ATFI number (``Tariff  ----------'') of the carrier's or 
conference's essential terms publication (See Secs. 514.11(b) and 
514.17(b));
    (iii) A reference to the statement of essential terms numbers, as 
follows:
    (A) ``ET Number ____________'' as provided in Sec. 514.17(d)(2)(i); 
and,
    (B) ``FMC File Number____________'' as provided in 
Sec. 514.17(d)(4)(i).
    (iv) The ATFI number(s) (``Tariff  ----------'') of the tariff(s) 
of general applicability;
    (v) The typewritten legal names and business addresses of the 
contract parties; the typewritten legal names of affiliates entitled to 
access the contract; and the typewritten names, titles and addresses of 
the representatives signing the contract for the parties. Carriers and/
or conferences which enter into contracts which include affiliates must 
in each instance either:
    (A) list the affiliates' business addresses; or
    (B) certify that this information will be provided to the Commission 
upon request within 10 business days of such request (These requirements 
will apply to previously-filed contracts amended after March 13, 1996). 
However, the requirements of this section do not apply to amendments to 
contracts that have been filed in accordance with the requirements of 
this section unless the

[[Page 169]]

amendment adds new parties or affiliates. subsequent references in the 
contract to the contract parties shall be consistent with the first 
reference (e.g., (exact name), ``carriers,'' ``shipper,'' or 
``association,'' etc.); and
    (vi) Every affiliate of each contract party named under paragraph 
(h)(1)(v) of this section entitled to receive or authorized to offer 
services under the contract, except that in the case of a contract 
entered into by a conference or shippers' association, individual 
members need not be named unless the contract includes or excludes 
specific members. In the event the list of affiliates is too lengthy to 
be included on the first page, reference shall be made to the exact 
location of such information.
    (2) On the second and subsequent pages: (i) The complete terms of 
the contract, including:
    (A) All essential terms as required under Sec. 514.17, preferably in 
the order and format prescribed by Sec. 514.17(d);
    (B) Other terms of the contract; and
    (C) Section 514.7(h)(2)(i)(A) does not apply to a service contract 
that incorporates by reference all of the associated essential terms 
filing as published in ATFI, provided that the parties certify that, 
other than for those provisions set forth in the filed service contract, 
such essential terms filing sets forth the true and complete 
contract.\1\
---------------------------------------------------------------------------

    \1\ See Exhibit II of this part for an example of an abbreviated 
format service contract.
---------------------------------------------------------------------------

    (ii)(A) A description of the shipment records which will be 
maintained to support the contract; and
    (B) The address, telephone number, and title of the person who will 
respond to a request by making shipment records available to the 
Commission for inspection under paragraph (m) of this section; and
    (iii) The number of free days and charges for use of carrier or 
conference provided equipment. The carrier or conference may reference 
its tariff of general applicability or equipment interchange tariff. In 
those instances, reference need be made to Tariff Rule 21 
(Sec. 514.15(b)(21)) and the applicable tariff number only.
    (3) On the signature page: (i) Signatures of all necessary contract 
parties; and
    (ii) A certification of shipper status in accordance with paragraph 
(e) of this section.
    (i) [Reserved]
    (j) Contract rejection and notice; implementation--(1) Initial 
filing and notice of intent to reject--(i) Within 20 days after the 
initial filing of an initial or amended service contract, the Commission 
may reject, or notify the filing party of the Commission's intent to 
reject, a service contract and/or statement of essential terms that does 
not conform to the form, content and filing requirements of the 1984 Act 
or this part. The Commission will provide an explanation of the reasons 
for such rejection or intent to reject.
    (ii) Except for rejection on the ground that the service contract or 
amendment thereto was not filed within ten days of its essential terms, 
or other major deficiencies, such as not containing an essential term, 
the parties will have 20 days after the date appearing on the notice of 
intent to reject to resubmit the contract (in paper form under paragraph 
(g) of this section) and/or statement of essential terms (in electronic 
form under Sec. 514.17), modified to satisfy the Commission's concerns.
    (2) Rejection. The Commission may reject an initial or amended 
contract and/or statement of essential terms if:
    (i) The initial or amended service contract is not filed within 10 
days of the electronic filing of its associated essential terms;
    (ii) A mandatory essential term or 30-day me-too notice is missing; 
or
    (iii) Under a notice of rejection pursuant to paragraph (j)(1) of 
this section, if the objectionable contract or statement of essential 
terms:
    (A) Is not resubmitted within 20 days of the notice of intent to 
reject; or
    (B) Is resubmitted within 20 days of the notice of intent to reject 
as provided in paragraph (j)(1)(ii) of this section, but still does not 
conform to the form, content or filing requirements of the Act or this 
part.
    (3) Implementation; prohibition and rerating. (i) Performance under 
a service contract or amendment thereto may

[[Page 170]]

begin without prior Commission authorization on the day its associated 
statement of essential terms is electronically filed, except for 
rejection under paragraph (j)(3)(ii) of this section;
    (ii) When the filing parties receive notice that an initial or 
amended service contract or statement of essential terms has been 
rejected under paragraph (j)(2) of this section:
    (A) Further or continued implementation of the service contract is 
prohibited;
    (B) All services performed under the contract shall be rerated in 
accordance with the otherwise applicable tariff provisions for such 
services with notice to the shipper or shippers' association within 30 
days of the date of rejection; and
    (C) Detailed notice shall be given to the Commission under paragraph 
(g)(2) of this section within 30 days of:
    (1) The rerating or other account adjustment resulting from 
rejection under this paragraph; and
    (2) Final settlement of the account adjusted under paragraph 
(j)((3)(ii)(C)(1) of this section.
    (4) Period of availability. The minimum 30-day period of 
availability of essential terms required by paragraph (f)(1) of this 
section shall be suspended on the date of the notice of intent to reject 
an initial or amended service contract and/or statement of essential 
terms under paragraph (j)(1)(i) of this section, or on the date of 
rejection under paragraphs (j)(1)(i) and (j)(2) of this section, 
whichever occurs first, and a new 30-day period shall commence upon the 
resubmission thereof under paragraph (j)(1)(ii) of this section.
    (k) Modification, correction and cancellation of service contract 
terms.
    (1) Modifications. (i) The essential terms originally set forth in a 
service contract may be amended by mutual agreement of the parties to 
the contract and shall be electronically filed with the Commission under 
Sec. 514.17.
    (ii) Amended service contracts shall be filed with the Commission 
pursuant to paragraph (g) of this section.
    (iii) Any shipper or shippers' association that has previously 
entered into a service contract which is amended pursuant to this 
paragraph may elect to continue under that contract or adopt the 
modified essential terms as an amendment to its contract.
    (2) Corrections. Either party to a filed service contract may 
request permission to correct clerical or administrative errors in the 
essential terms of a filed contract. Requests shall be filed, in 
duplicate, with the Commission's Office of the Secretary within 45 days 
of the contract's filing with the Commission, accompanied by remittance 
of a $233 service fee, and shall include:
    (i) A letter of transmittal explaining the purpose of the 
submission, and providing specific information to identify the initial 
or amended service contract to be corrected.
    (ii) A paper copy of the proposed correct essential terms. 
Corrections shall be indicated as follows:
    (A) Matter being deleted shall be struck through; and
    (B) Matter to be added shall immediately follow the language being 
deleted and be underscored;
    (iii) An affidavit from the filing party attesting with specificity 
to the factual circumstances surrounding the clerical or administrative 
error, with reference to any supporting documentation;
    (iv) Documents supporting the clerical or administrative error; and
    (v) A brief statement from the other party to the contract 
concurring in the request for correction.
    (3) Filing and availability of corrected materials.
    (i) If the request for correction is granted, the carrier or 
conference shall file the corrected contract provisions under this 
section and/or a corrected statement of essential terms under 
Sec. 514.17, using a special case number under Sec. 514.9(b)(19). 
Corrected essential terms shall be made available to all other shippers 
or shippers' associations similarly situated for a specified period of 
no less than fifteen (15) days from the date of the filing of the 
corrected essential terms. The provisions of paragraphs (f)(1) to (f)(3) 
of this section shall otherwise apply.
    (ii) The provisions of paragraph (k)(3)(i) of this section do not 
apply to clerical or administrative errors that appear only in a 
confidentially filed

[[Page 171]]

service contract but not also in the relevant essential terms.
    (iii) Any shipper or shippers' association that has previously 
entered into a service contract that is corrected pursuant to this 
paragraph may elect to continue under that contract with or without the 
corrected essential terms.
    (4) Cancellation. See paragraph (1) of this section and 
Sec. 514.4(e)(2).
    (l) Accounting adjustments; rerating; notice--(1) Account 
adjustment; rerating--(i) Events and damages covered by contract. An 
account shall be adjusted when there is either liability for liquidated 
damages under Sec. 514.17(d)(7)(vii), or the occurrence of an event 
described in Sec. 514.17(d)(7)(viii).
    (ii) Mutual termination or shipper failure to meet cargo minimum not 
covered by the contract. In the event of a contract termination which is 
not provided for in the contract itself and which results from mutual 
agreement of the parties or because the shipper or shippers' association 
has failed to tender the minimum quantity required by the contract:
    (A) Further or continued implementation of the service contract is 
prohibited; and
    (B) The cargo previously carried under the contract shall be rerated 
according to the otherwise applicable tariff provisions of the carrier 
or conference in effect at the time of each shipment.
    (2) Notice to contract party. A proposed final accounting or 
rerating under this section shall be issued to the appropriate contract 
party within 60 days of termination, discontinuance, breach or default 
of the service contract, for:
    (i) Liability for liquidated damages under Sec. 514.17(d)(7)(vii);
    (ii) The occurrence of an event under Sec. 514.17(d)(7)(viii); or
    (iii) Termination, breach or default not covered by the contract.
    (3) Notice to Commission. Detailed notice of any termination, 
rerating, and/or account adjustments, as well as final settlement of an 
adjusted account, shall be given to the Commission under paragraph 
(g)(2) of this section.
    (m) Record keeping and audit--(1) Records retention for five years. 
Every common carrier or conference shall maintain service contract 
records in an organized, readily accessible or retrievable manner for a 
period of five years from the termination of each contract.
    (2) [Paragraph (m)(2) is stayed until further notice.] Where 
maintained. (i) Service contract records shall be maintained in the 
United States, except that service contract records may be maintained 
outside the United States if the Chairman or Secretary of a conference 
or President or Chief Executive Officer of a carrier certifies annually 
by January 1, on a form to be supplied by the Commission, that service 
contract records will be made available as provided in paragraph (m)(3) 
of this section.
    (ii) If service contract records are not made available to the 
Commission as provided in paragraph (m)(3) of this section, the 
Commission may cancel any carrier's or conference's right to maintain 
records outside the United States pursuant to the certification 
procedure of paragraph (m)(2)(i) of this section.
    (3) Production for audit within 30 days of request. Every common 
carrier or conference shall, upon written request of the FMC's Director, 
Bureau of Enforcement or any Area Representative, submit requested 
service contract records within 30 days from the date of the request.

[57 FR 36271, Aug. 12, 1992, as amended at 57 FR 46322, Oct. 8, 1992; 58 
FR 27, Jan. 4, 1993; 58 FR 5622, Jan. 22, 1993; 61 FR 5309, Feb. 12, 
1996; 61 FR 51233, Oct. 1, 1996; 62 FR 63463, Dec. 1, 1997; 63 FR 50536, 
Sept. 22, 1998]

    Effective Date Note: (1) At 57 FR 36271, Aug. 12, 1992, the 
effectiveness of paragraph (m)(2) was stayed until further notice. The 
agency will publish a document in the Federal Register indicating when 
the stay is terminated.
    (2) At 63 FR 50536, Sept. 22, 1998, Sec. 514.7(k)(2) introductory 
text was revised, effective Nov. 2, 1998. For the convenience of the 
user, the superseded text is set forth as follows:

Sec. 514.7  Service contracts in foreign commerce.

                                * * * * *

    (k) * * *
    (2) Corrections. Either party to a filed service contract may 
request permission to correct clerical or administrative errors in the 
essential terms of a filed contract. Requests

[[Page 172]]

shall be filed, in duplicate, with the Commission's Office of the 
Secretary within 45 days of the contract's filing with the Commission 
and shall include:

                                * * * * *



             Subpart C--Form, Content and Use of Tariff Data



Sec. 514.8  Electronic filing.

    (a) Exemptions. (1) All tariffs required to be filed by this part 
shall be filed in the proper electronic form and manner unless 
specifically exempted by the Commission.
    (2) A petition for a temporary exemption from the electronic filing 
requirements of this part shall be filed with the Secretary of the 
Commission under Sec. 502.69 of this chapter and Sec. 514.21. Unless a 
complete exemption from filing tariff material is warranted, the 
petitioner obtaining the exemption will still be required to file 
tariffs in paper format during the period of the exemption.
    (b) User manual. A user manual for electronic filing (and/or 
retrieval) may be purchased from BTCL for a fee set forth in 
Sec. 514.21. The user manual contains the following:
    (1) ATFI Fundamentals Guide, which provides the basic ATFI concepts 
and the general system background to understand the procedures for ATFI 
use.
    (2) ATFI System Handbook, which describes system use 
characteristics, provides high-level introduction to users' interfaces, 
i.e., menus and screens, outlines the information contained in the 
guides, and is a quick reference source for experienced users.
    (3) ATFI Tariff Retrieval Guide, which provides complete 
instructional detail on the retrieval procedures to access all 
components of a tariff using the ATFI central site system in interactive 
mode.
    (4) ATFI Tariff Filing Guide, which provides complete instructional 
detail on the interactive filing procedures to create and maintain all 
components of a tariff using the ATFI central site system in interactive 
mode.
    (5) ATFI ``Batch Filing Guide'' (see paragraph (d)(3) of this 
section), which presents information to tariff filers who prepare new 
tariff submissions or modifications in an ``off-line'' or batch mode, 
and then submit the batch filings to the Commission either 
electronically (on-line batch) or by tape (tape or in-bulk batch). 
Contains the ATFI transaction sets for proper formatting of batch 
filings.
    (c) Filing; types of filing. In all cases, interactive, on-line 
batch or bulk (tape) batch, the filing session is processed as soon as 
possible after submission/receipt of the filing session information. The 
ATFI system assigns the filing date, which is the date an electronically 
transmitted (interactive or on-line batch) filing session file transfer 
is initiated (successful file transfer assumed) or the tape (in-bulk 
batch) is delivered to a designated location and date-time stamped, in 
local time in the U.S. Eastern Time Zone. After the filing session is 
processed, a filing-results message is placed in the filers electronic 
mailbox on the central site system.
    (1) Interactive filing. Interactive tariff filing uses a modem and 
VT-100-type terminal (or VT-100-type terminal emulation on a personal 
computer) for ATFI access to create tariff filings, verify previous 
filings, and perform sample freight calculations for verification of 
filed information, using ATFI system screens and pop-up windows. The 
modem must adhere to one of the following standards: Bell 212 (1200 
baud); CCITT V.22 (2400 baud); or CCITT V.32 (9600 baud). The filing is 
submitted when the filer executes the command to ``File all Authorized 
Changes'' and ATFI's ``sent'' response indicates completion of that 
filing session submission.
    (2) On-line batch filing. On-line batch filing is performed by 
transmission of prepared tariff material to the ATFI system over dial-up 
lines from the filer's own computer, using published ATFI transaction 
set formats and the KERMIT file transfer protocols. The conclusion of 
the file transfer sequence is a positive keyboard entry to initiate the 
transfer and a response that indicates completion of that submission. 
The modem requirements are the same as those in paragraph (c)(1) of this 
section. On-line batch filing requires a computer and software capable 
of producing tariff material according to the

[[Page 173]]

ATFI transaction sets, and transmitting via KERMIT protocol. KERMIT is 
public domain software and is available from: KERMIT Distribution, 
Columbia University Center for Computing Activities, 612 West 115th 
Street, New York, NY 10025.
    (3) In-bulk (tape) batch filing. Tape batch filing is accomplished 
by physical delivery of prepared tariff material on magnetic tape, in 
the published ATFI transaction set formats, to designated location(s) 
and accepted/time-stamped by an ATFI attendant, or date/time stamped and 
deposited for processing. The tape is processed after receipt at the 
ATFI Computer Center. In order that in-bulk (tape) tariff data can be 
deemed to be ``filed'' on a particular date, the tape(s) must be 
appropriately delivered (deposited) by 5:00 p.m. on that date, if a 
normal Commission work day; or if the date desired is a non-work day, by 
5:00 p.m. on the previous Commission work day. See 
Sec. 514.10(a)(2)(iii). In-bulk batch filing requires a computer and 
software capable of producing tariff material according to the ATFI 
transaction sets, and recording this on 9-track 1600 bpi or 6250 bpi 
tape according to standards outlined in the ``Batch Filing Guide.'' See 
paragraph (d)(3) of this section.
    (d) General format requirements--(1) Database format. The ATFI 
database is structured from tariff data elements and the tariff objects 
(see paragraph (h) of this section) formed by logical grouping of those 
elements. For example, a TLI is a tariff object which contains data 
elements for origin, destination, rate, basis, service, etc. The tariff 
objects are relational, with the ``master'' record being the 
organization record for a firm. One or more tariff records would be 
``related'' to that organization record. All required and optional 
Tariff Rules, any number of commodity descriptions, desired location 
groups and inland rate tables are related to a specific tariff record. 
TLIs are related to a specific commodity description and assessorial-
charge algorithms are related to specific Tariff Rules, commodity 
descriptions or TLIs. This relational structure allows interactive ATFI 
users to quickly locate specific tariff objects regardless of the filing 
organization, tariff type or trade. Although the data formats are very 
precise and the CRT displays standard, the traditional page format is no 
longer in use. See paragraph (l)(1) of this section.
    (2) Batch transmission. Batch transmission of tariff materials to 
the ATFI computer, either on-line or in-bulk, is governed by the 
transaction sets contained in the ``Batch Filing Guide.'' Tariff filings 
not complying with the regulations in this part or the formats and valid 
codes contained in the ``Batch Filing Guide'' are subject to rejection.
    (3) ``Batch Filing Guide.'' The ATFI ``Batch Filing Guide'' is 
published and updated in Pike and Fischer, ``Shipping Regulation,'' SR 
329:501, and a copy of the Guide is available from BTCL. The ``Batch 
Filing Guide'' includes the following items:
    (i) Transaction sets. The transaction set formats also include 
transaction set segments, data elements, and reference tables.
    (ii) Data Element Dictionary (``DED'') and Valid Reference Table 
Entries for certain data elements (e.g., service codes, container type 
codes, currency codes, etc.), calculation statement definitions, and 
condition and calculation statement data fields. For interactive filing, 
valid reference table entries can be accessed on help screens.
    (4) Adding new transaction data. Requests for major changes or 
additions to the transaction set data dictionary or reference tables 
shall be submitted in writing to BTCL, with sufficient detail and 
reasons for each proposed change. A contact person and telephone number 
also should be provided in case of questions.
    (i) A proposed major change (other than a correction), such as to a 
transaction set, will require formal configuration management procedures 
and a minimum of thirty days' advance notice of the change in the 
Federal Register and the ATFI system news, available at system logon, 
and by other established Commission communications procedures.
    (ii) Minor changes will be entered into the system and published as 
soon as possible. Such minor changes include additions to any of the 
following term and reference lists: Cities; States

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and provinces; Countries; Ports; Container sizes; Container types; 
Container temperatures; Hazard codes; Inland modes; Packaging types; 
Rate Bases; Service types; Stuffing mode; Stripping mode; and 
Currencies. See Appendixes A and B to the ATFI Batch Filing Guide.
    (e) Hardware and software requirements. The basic equipment suite 
necessary to access ATFI is a VT-100-type terminal (including CRT) and a 
modem. A more sophisticated suite for ATFI access would be composed of a 
personal computer (PC) (including CRT), a VT-100 emulation software 
package, and a modem. For batch filers, the transmitted filing session 
must be formatted to comply with the transaction sets. The transmission 
may be via the use of KERMIT file transfer protocols after establishing 
a link for on-line batch filing with the ATFI central site computer (see 
paragraph (c)(2) of this section).
    (f) Password and User ID. (1) System Identifications (``IDs'') for 
either filing or retrieval logon and initial password assignments are 
obtained by submitting the User Registration Form (exhibit 1 to this 
part), along with the proper fee under Sec. 514.21 and other necessary 
documents prescribed by Sec. 514.4(d) of this part, to BTCL. A separate 
User Registration Form is required for each individual that will access 
ATFI.
    (2) Logon IDs and passwords may not be shared with or loaned to or 
used by any individual other than the individual registrant. The 
Commission reserves the right to disable any logon ID that is shared 
with, loaned to or used by parties other than the registrant.
    (3) Authority for organizational maintenance, filing or retrieval 
can be transferred by submitting an amended registration form requesting 
the assignment of a new logon ID and password (see Sec. 514.(4)(d)). The 
original logon ID will be canceled when a replacement logon ID is 
issued.
    (g) Connecting to ATFI; procedures. If ATFI user equipment (hardware 
and software) is compatible with the configurations specified in 
paragraph (e) of this section, and the proper ID and password have been 
obtained under paragraph (f) of this section, on-line ATFI services 
(interactive retrieval, interactive filing, and on-line batch filing) 
are available to users registered under this section and Sec. 514.21 for 
the respective services, over commercial telecommunications using 
standard asynchronous modems with data rates up to 9600 baud. The dial-
up procedures are set forth in section 2.3 of the Batch Filing Guide and 
section 4.2 of the ATFI System Handbook, and the ATFI Hot Line number is 
available through BTCL.
    (h) Major menu selections. Proper connection will lead the user to 
the ``ATFI Logo Menu,'' which allows selections by any user for ``Tariff 
Retrieval,'' ``Retrieval Practice,'' ``Retrieval CBI,'' ``Mailbox,'' 
``ATFI System News,'' ``Change Password,'' ``Screen Setup,'' and 
``Logout.'' Additionally, a registered filer can access ``Tariff 
Filing,'' ``Filing CBI,'' and ``Filing Practice.'' Upon the selection of 
either ``Tariff Filing'' or ``Tariff Retrieval,'' the user will be led 
to the ``Main Menu,'' which allows selection (with help screens and 
windows) of the following items and subitems (see also the anti-rebate 
policy notice in paragraph (j) of this section). The tariff objects (in 
addition to * ``Commodity Descriptions'' and * ``TLIs'') are marked with 
an asterisk (*).
    (1) Select Tariff. This selection allows access to a particular 
tariff which can be selected by ``Organization Number,'' ``Origin'' and 
``Destination,'' and/or ``Organization Trade Name.''
    (2) Rate Inquiry. This selection is used for ``Commodities'' 
(Sec. 514.13(a)), ``TLIs'' (Sec. 514.13(b)), ``Access Dates'' 
(Sec. 514.10(a)(1)), and ``Algorithms'' for assessorial charges and 
calculations (Sec. 514.10(d)). For essential terms publications, ``Rate 
Inquiry'' provides access to the * ``Essential Terms'' of service 
contracts (Sec. 514.17).
    (3) Other Tariff Components. This selection provides another menu 
for:
    (i) * Rules (Tariff Rules). See Sec. 514.15.
    (ii) Inland Rates. (This provides access to * ``Inland Rate 
Tables.'') See Sec. 514.15(b)(1).
    (iii) Commodity Index. (This can also be accessed from the 
``Commodity Search'' screen under ``Rate Inquiry.'') See 
Sec. 514.13(a)(7).
    (iv) * Location Groups. See Sec. 514.10(b).

[[Page 175]]

    (v) Tariff Definition. This selection provides another menu for:
    (A) * Tariff Record. See Sec. 514.11(b).
    (B) Origin Scope. See Sec. 514.11(c).
    (C) Destination Scope. See Sec. 514.11(c).
    (D) Governing Tariffs. See Sec. 514.12.
    (E) * Organization Record. (This item is more directly available by 
filers who have the authority to edit the ``Organization Record.'') See 
Sec. 514.11(a).
    (vi) Select Tariff.
    (vii) New Access Date. See Sec. 514.10(a)(1).
    (4) Utilities.
    (i) Currency Conversion.
    (ii) Display Options.
    (iii) Version Information.
    (iv) New Tariff Creation (filers only).
    (v) General Rate Increases (filers only).
    (vi) Authorize/Review Changes (filers only).
    (vii) Filing Utilities (filers only).
    (5) Exit Tariff System.
    (6) V1.00 Information.
    (i) [Reserved]
    (j) Anti-rebate tariff notice. To further implement the United 
States policy against untariffed rebates, as reflected in 
Sec. 514.1(c)(1)(iii), the following notice will appear after logon to 
the ATFI system:

    The foreign commerce carriers whose tariffs are recorded within this 
system have a policy against the payment of any rebate, directly or 
indirectly by the company or by any officer, employee or agent, which 
payment would be unlawful under the Shipping Act of 1984. Such policy 
has been certified to the Federal Maritime Commission in accordance with 
the Shipping Act of 1984. The shipping statutes also prohibit rebates in 
the domestic offshore trade.

    (k) Publication; paper copies of tariff materials--(1) Publication--
(i) Availability for public inspection. (A) During normal business 
hours, every carrier, conference and terminal operator shall promptly 
make available to the public in paper or electronic form and at a 
reasonable charge (such as for a regular subscription under 
Sec. 514.15(b)(30)) all tariff material required by this part to be 
filed by the carrier, conference or marine terminal operator, as well as 
all Commission actions affecting such tariff material, such as 
rejections, suspensions, etc.
    (B) In addition to the requirements of paragraph (k)(1)(i)(A) of 
this section, every domestic offshore carrier shall make available to 
the public at each facility at which it receives freight or passengers 
for transportation, or at which it employs a general or sales agent, all 
tariff material governing transportation to and from the facility in 
question.
    (ii) Availability of domestic offshore tariff materials to 
government officials. The governor of any state, commonwealth or 
territory served by a domestic offshore carrier may request a carrier in 
writing to furnish to a designated government official or office tariff 
matter filed by the carrier which pertains to trades affecting the 
state, commonwealth or territory in question. Such request may be for 
the tariff matter either to be made available in electronic format, or 
to be furnished in no more than two (2) paper copies. Upon receipt of 
such a request, which shall include the name, address and facsimile 
transmission number(s) of the designated official or office, the carrier 
shall promptly provide to the designated official or office the 
requested tariff material and add the official or office to its list of 
tariff subscribers. No charge shall be made for the service, but such 
officials and offices shall be treated in the same fashion as paid 
subscribers in all other respects. See Sec. 514.15(b)(30). In addition, 
a copy of any new or amendatory tariff matter that results in an 
increased cost to the shipper and that is filed on less than 30 days' 
notice pursuant to Sec. 514.9(b)(24)(ii), shall be provided to the 
designated Government officials or offices, on the same day that such 
tariff matter is filed with the Federal Maritime Commission, by hand 
delivery or facsimile transmission of one paper copy, or by electronic 
transmission, if available.
    (iii) Assistance to the public. Persons requesting to inspect tariff 
materials shall, upon reasonable notice, be provided sufficient 
instruction or assistance to allow them to ascertain both the present 
and proposed rates, charges, classifications, Tariff Rules and practices 
of the tariff owner.
    (iv) Tariff Rule containing public access details. Tariff filers 
shall set forth in detail in Tariff Rule 30 (Sec. 514.15(b)(30)) all 
costs, conditions and arrangements for public inspection of tariff 
material,

[[Page 176]]

including the official tariff when it is not available for access in the 
ATFI system due to a breakdown or similar disaster.
    (v) Official copies. (A) Except as provided in paragraph 
(k)(1)(v)(B) of this section, the official version of a tariff will be 
the version of any and all tariff objects published and effective on a 
specific date in the ATFI central site computer or the ATFI archives. 
Individual tariffs are accessible by registered ATFI interactive 
retrievers and by the public at terminals in the Commission's Tariff 
Control Center.
    (B) During a major emergency where the ATFI host processor is 
inaccessible due to an equipment breakdown in the ATFI system, the 
official tariff of a tariff owner shall be that maintained by the tariff 
owner for public access during just such an emergency. The access to the 
emergency tariff shall be described in the tariff owner's Tariff Rule 30 
(Sec. 514.15(b)(30)). As soon as the ATFI host processor becomes 
accessible, the tariff owner shall ensure that there are no 
discrepancies between the emergency tariff and the ATFI tariff.
    (2) Certified paper copies of tariff material. The Commission will 
publish paper pages containing filed tariff information only for special 
Commission requirements, e.g., for requested certification of tariff 
data by the Commission Secretary for official use in court and in other 
governmental proceedings under Sec. 503.43(c) of this chapter and 
Sec. 514.21(d). The pages produced for these purposes will not reflect 
the formats of traditional, page-based tariffs, but will present tariff 
objects in effect or filed to become effective on a specific date. The 
paper format may reflect the printing of a computer screen display or 
the retrieval and printing of a specific portion of a tariff in the ATFI 
database or the ATFI database archives.
    (l) Certification of batch filing capability. (1) The Commission 
will not make available to the public software packages for firms to use 
in formulating tariff filings. The Commission has released the ``Batch 
Filing Guide'' (with transaction sets) into the public domain so that 
qualified commercial firms can develop batch filing software for the 
general market.
    (2) Certification. Firms which develop batch filing software, by 
appointment through BTCL and payment of the fee set forth in 
Sec. 514.21, can be certified for the formatting of one or more of 
several types of tariff data (e.g., domestic, foreign, essential terms, 
etc.) in ATFI transaction set format and submission of that data to the 
FMC ATFI central site computer. The data may be submitted either via on-
line batch transmission over dial-up telecommunications links using the 
required file transfer protocols, or in bulk batch via delivery to the 
ATFI computer center of magnetic tape containing the tariff data. 
Certification will require submission of tariff filing sessions to ATFI, 
with an evaluation of the actual results of the attempted filings to 
ensure that the transaction set formats are properly employed and that 
the filing results are consistent with the filer's expectations.
    (m) ATFI screens. The sample screens used to illustrate tariff 
objects in this part simulate parts of, but are not the actual, 
completed ATFI screens used in the electronic filing and retrieval of 
tariff data, which may also change with technical or regulatory 
developments. Moreover, certain fields appearing on the actual ATFI 
screens may be blocked off from directly entering all or certain data in 
such fields, because of default procedures, developing and copying data 
from other, preliminary screens, etc. Accordingly, filers must carefully 
follow instructions in order to properly enter complete and accurate 
tariff data.
    (n) Validation of data. Tariff data submitted to ATFI for filing are 
screened for compliance with ATFI conformity checks, and certain data 
not automatically rejected by the conformity checks are flagged for 
Commission examiner review.
    (1) Conformity checks. The conformity checks are syntax checks, 
validity checks and associative checks. For interactive filing, the ATFI 
system will generally not accept tariff material which fails conformity 
checks and the on-line filer can immediately correct its proposed filing 
before final submission to the ATFI database. Commercially developed 
batch filing software can be designed to accomplish the

[[Page 177]]

same functionality. However, all proposed filings of tariff materials 
must undergo the routine system conformity checks before they can be 
received into the database. Filers will be notified of automatic 
rejections at this stage by electronic mail, with follow-up letter, if 
necessary. The conformity checks are:
    (i) Syntax Checks. Tariff material will be checked for file 
integrity, proper data types, field lengths, and logical sequence 
according to the ``Batch Filing Guide's'' transaction sets. Data not 
conforming to the data element format or type in the ``Batch Filing 
Guide's'' Data Element Dictionary (``DED'') and the sequence 
requirements of the transaction sets and segment definitions will result 
in rejections of submitted tariff data to include the possible rejection 
of an entire filing if form and format errors are extensive enough to 
preclude processing.
    (ii) Validity Checks. Certain data elements of filed tariff material 
will also be checked for data validity by type against the DED's 
published reference tables, such as for container types and sizes, rate 
basis, and packaging. See Sec. 514.13(b).
    (iii) Associative Checks. ATFI uses associative checks to identify 
logical conformity with established tariff filing rules. The following 
are some representative types of associative checks performed by the 
ATFI system.
    (A) Any new or amended tariff matter must have:
    (1) A valid organization number and name (Sec. 514.11 (b)(1)(ii) and 
(b)(2)).
    (2) No suspended carrier or object status (See Secs. 514.1(c)(1) and 
514.19).
    (3) Appropriate publication authority (Sec. 514.11(a)(9)(iii)).
    (4) Filing date same as or prior to effective date (Sec. 514.10(a)).
    (5) Valid and appropriate filing/amendment codes (Sec. 514.9).
    (6) Valid and appropriate filing, effective, thru and expiration 
dates (Secs. 514.9 and 514.10(a)).
    (7) When used, valid special case number and filing/amendment code 
``S,'' with no other filing/amendment codes entered (Sec. 514.9(b)(19)).
    (B) Tariff records (Sec. 514.11(b)) must have new (unique to 
carrier/conference/terminal) tariff number (Sec. 514.11(b)(1)(ii)).
    (C) Commodity description records (Sec. 514.13(a)) must have:
    (1) Complete textual description and unique number.
    (2) At least one commodity index entry.
    (D) Tariff line item (TLI) records (Sec. 514.13(b)) must have a 
valid:
    (1) Commodity description and code (Sec. 514.13(b)(5)).
    (2) TLI code (Sec. 514.13(b)(6)).
    (3) Origin and destination (Sec. 514.13(b)(15)).
    (4) Rate basis (Sec. 514.13(b)(17)).
    (5) A specified rate (Sec. 514.13(b)(19)).
    (E) Tariff Rules (Sec. 514.15(b)) must have:
    (1) All mandatory rules.
    (2) Number of new Tariff Rule not previously used in that tariff.
    (F) New or enlarged scope (certain tariffs) must have effective date 
30 days or more after filing date (Sec. 514.11(b)(10)).
    (G) Essential terms (Sec. 514.17) must have:
    (1) All mandatory terms (Sec. 514.17(d)).
    (2) Availability date for initial service contracts and each 
amendment thereto at least 30 days greater than the filing date 
(Sec. 514.17(d)(3)).
    (2) Flag for FMC examiner review. In ATFI, electronic conformity 
checks cannot be designed to check and pass/fail every possible 
rejection situation, such as, for example, conflicting texts or 
ambiguous language. Other matters, such as filings of controlled 
carriers, require policy review under the 1984 Act. For these reasons, 
ATFI will automatically queue for review by a Commission examiner the 
items which survive the conformity checks described in paragraph (n)(1) 
of this section. The following are representative types of items flagged 
for examiner review:
    (i) Any new or amended tariff matter:
    (A) Of a controlled common carrier.
    (B) With a filing/amendment code of ``G,'' ``K,'' ``M,'' ``P,'' 
``T,'' or ``X'' (Sec. 514.9(b)).
    (C) When a special case number is present (Sec. 514.9(b)(19)).
    (ii) All tariff record filings and amendments (Sec. 514.11(b)).
    (iii) All new commodity descriptions (Sec. 514.13(a)).

[[Page 178]]

    (iv) Tariff line item (TLI) records (Sec. 514.13(b)):
    (A) With any increase and the filing/amendment code does not contain 
an ``A'' or ``G'' (Sec. 514.9 (b)(1) and (b)(7)).
    (B) With any non-rate data changes (Sec. 514.13(b)(17)).
    (v) All Tariff Rules (Sec. 514.15).
    (vi) Location groups (Secs. 514.9(b)(16) and 514.10(b)):
    (A) Any new group or addition to group.
    (B) Any deletion of a group member.
    (vii) All service contract essential terms filings. (Sec. 514.17).
    (3) Status/rejection codes. The command line at the bottom of most 
ATFI screens provides a ``Status'' option for retrievers to determine 
whether an ATFI object is accepted, rejected, suspended, etc., and the 
reasons therefor. The DED ``FMC Status/Rejection Code'' provides 
numeric, two-digit codes for this purposes, e.g., ``01--Not rejected; 
item accepted.''

[57 FR 36271, Aug. 12, 1992, as amended at 57 FR 44509, Sept. 28, 1992; 
57 FR 46324, Oct. 8, 1992; 58 FR 28, Jan. 4, 1993; 60 FR 56123, Nov. 7, 
1995]



Sec. 514.9  Filing/Amendment codes and required notice periods.

    (a) General. (1) Under the shipping statutes, various types of 
tariff material require different notice periods (beginning with the 
filing date) before they may become effective. For example, a new tariff 
or a rate increase usually requires 30 days' notice before the effective 
date. See Sec. 514.4(a). Paragraph (b) of this section describes the 
different notice periods for the various types of filed tariff items and 
their corresponding filing/amendment codes (symbols), which shall be 
carefully used by the filer for the purposes of guiding the user and 
triggering accurate associative checks to ensure the integrity of the 
filed tariff material. See Sec. 514.8(n). The ATFI system makes 
available a Help screen which also lists the uniform symbols.
    (2) Multiple symbols. Filed tariff material frequently can be coded 
with more than one symbol. Accordingly, the field, ``Amendment Type,'' 
appearing on most ATFI screens, will usually allow up to three 
different, compatible symbols, but see paragraph (b)(19) of this 
section.
    (3) Symbol(s) resulting from deletion. When amendments deleting 
existing tariff matter alter the amount paid by the shipper/consignee, 
the effect of this change shall be indicated by the proper code 
symbol(s), as required by paragraph (b) of this section.
    (4) Restricted use of symbols. The codes or symbols prescribed in 
paragraph (b) of this section may not be used for any other purpose, nor 
shall any symbol be used other than the appropriate symbol(s) described 
in paragraph (b) of this section.
    (5) Essential terms and terminal tariffs. Due to the absence of most 
of the notice requirements otherwise applicable to carrier or conference 
tariffs, the use of symbols under this section for terminal tariffs will 
be appropriate for the tariff objects employed and filing/maintenance. 
Symbols for essential terms of service contracts under Sec. 514.17 will 
usually be ``I'' for initial filings, ``S'' for corrections, and the 
appropriate symbols for amendments to essential terms. See 
Sec. 514.17(d)(5)(i).
    (b) Filing/Amendment codes and notice periods. For tariffs in 
foreign and domestic offshore commerce, the following are the notice 
periods for various types of filings and their corresponding symbols. To 
the extent applicable and permitted by the ATFI system, the symbols can 
also be used in other types of tariff material, such as terminal 
tariffs.
    (1) ``A'' Increase (Foreign commerce and across-the-board increase 
which is not a general rate increase in domestic offshore commerce under 
paragraph (b)(7) of this section [``G'']: 30 days' notice. (i) Except 
for a general rate increase in domestic offshore commerce, amendments 
which provide for changes in rates, charges, rules, or other tariff 
provisions (including fares in domestic offshore commerce), which 
constitute a cost increase in foreign commerce or an across-the-board 
increase in domestic offshore commerce, shall use the symbol ``A'' and 
be filed to become effective not earlier than 30 days' after the date of 
filing, unless an exemption or special permission to become effective on 
less than said 30 days' notice has been granted by the Commission. See

[[Page 179]]

paragraph (b)(24)(ii) of this section for domestic offshore increases 
which may be filed on seven workdays' notice.
    (ii) An amendment which deletes a specific commodity and rate 
applicable thereto from a tariff, thereby resulting in the application 
of a higher ``cargo n.o.s.'' or similar general cargo rate, is a rate 
increase requiring the appropriate notice period and corresponding 
symbol under this section.
    (2) [Reserved]
    (3) ``C'' Change resulting in neither increase nor decrease in rates 
or charges: effective upon ``short notice,'' i.e., upon filing in 
foreign commerce, or on one day's notice in domestic offshore commerce. 
(i) Amendments which result in no change in cost to the shipper, such as 
an amendment changing only the name or address of the filing party, may 
become effective upon short notice (i.e., upon filing in foreign 
commerce, or on one day's notice in domestic offshore commerce) and 
shall use the symbol ``C;'' except that all changes to controlled common 
carrier tariffs may not become effective earlier than 30 days from the 
date of filing, unless special permission has been granted by the 
Commission under Sec. 514.18, or the change affects only tariff matters 
which are the subject of a suspension proceeding under Sec. 514.19 of 
this part.
    (ii) An amendment containing a rate on a specific commodity not 
previously named in a tariff which results in no change in cost to the 
shipper may become effective on short notice under this subparagraph, 
if:
    (A) The tariff contains a ``cargo, n.o.s.'' or similar general cargo 
rate which would otherwise be applicable to the specific commodity;
    (B) The specific commodity rate is equal to the previously 
applicable general cargo rate; and
    (C) The common carrier is not a controlled common carrier which has 
not received special permission or an exemption authorizing the 
amendment.
    (4) [Reserved]
    (5) ``E'' Expiration: effective upon filing unless it results in an 
increase under paragraph (b)(1) ``A'' or (b)(7) ``G'' of this section. 
When amendments deleting or expiring existing tariff matter alter the 
amount to be paid by the shipper/consignee, the effect of this change 
shall be indicated by other symbol(s) under this paragraph (b). 
Otherwise, expired or deleted matter, such as an amendment completely 
canceling a tariff due to a cessation of all service by the carrier 
between the ports or points listed in the canceled tariff, may take 
effect upon filing and shall use the symbol ``E.''
    (6) [Reserved]
    (7) ``G'' General rate increase or decrease (domestic offshore 
commerce): 60 days' notice. Amendments of domestic offshore tariffs 
which change rates, fares, charges, Tariff Rules, or other tariff 
provisions and which constitute a general increase or decrease in rates, 
shall be filed at least 60 days prior to their effective date and shall 
use the symbol ``G.''
    (8) [Reserved]
    (9) ``I'' New or initial matter: 30 days' notice--(i) New tariffs 
and, except for a general increase or decrease in domestic offshore 
commerce, filings which provide for new or initial rates, fares, 
charges, Tariff Rules or other tariff provisions resulting in an 
increased cost to the shipper, shall use the symbol ``I'' and be filed 
to become effective not earlier than 30 days after the date of filing, 
unless an exemption or special permission to become effective on less 
than said 30 days' notice has been granted by the Commission.
    (ii) Initial filings of essential terms of service contracts under 
Sec. 514.17 of this part may not use any symbol other than ``I.'' See 
paragraph (b)(19)(iii)(A) of this section for corrections to essential 
terms.
    (10) [Reserved]
    (11) ``K'' Rate or charge filed by a controlled common carrier 
member of a conference under independent action (foreign commerce): 
effective upon filing if decrease.
    (i) All changes to controlled common carrier tariffs may not become 
effective earlier than 30 days from the date of filing unless special 
permission has been granted by the Commission under Sec. 514.18, or the 
change affects only tariff matters which are the subject of a suspension 
proceeding under Sec. 514.19 of this part. Such changes shall use the 
most appropriate symbol(s) under this section.

[[Page 180]]

    (ii) Conferences may file on behalf of their controlled common 
carrier members lower independent-action rates on less than 30 days' 
notice, using the symbol ``K,'' subject to the requirements of their 
basic agreements and subject to such rates being filed at or above the 
level set by a member of the conference that has not been determined by 
the Commission to be a controlled common carrier subject to section 9 of 
the 1984 Act, in the trade involved.
    (12) [Reserved]
    (13) ``M'' Transportation of U.S. Department of Defense Cargo. Where 
a rate for military cargo is incorporated as a separate TLI in the 
commercial tariff of a carrier or conference in foreign commerce, the 
filing/amendment code ``M'' shall be used to identify the TLI. Any such 
military rate may be effective upon filing.
    (14)-(15) [Reserved]
    (16) ``P'' Extension of service to additional port(s) at rates 
already in effect for similar services at the port(s) being added; or 
the carrier's establishment of additional terminal facilities at the 
port(s) already served, at the same rates as those currently applicable 
to comparable facilities of the carrier at the same port.
    (i) In domestic offshore commerce:
    (A) Amendments extending actual service to additional ports at rates 
or fares already in effect for similar service at the ports being added 
may take effect upon filing and shall use the symbol ``P;'' and
    (B) Carriers may file to be effective upon filing, using the symbol 
``P,'' amendments establishing additional terminal facilities for 
loading or discharging cargo at ports or harbors already served, but 
only if the rates to be charged at such facilities are the same as those 
currently applicable to comparable facilities of the carrier at the same 
port or harbor.
    (ii) In foreign commerce:
    (A) Amendments which provide for the addition of a port or point to 
a previously existing origin or destination field may become effective 
upon filing and shall use the symbol ``P.''
    (B) A deletion of a port or point from a previously existing origin 
or destination field may not be coded with a ``P,'' but shall be coded 
with other appropriate symbol(s) under this section.
    (17) [Reserved]
    (18) ``R'' Reduction (Not a general rate decrease in domestic 
offshore commerce under paragraph (b)(7) ``G'' of this section)--(i) 
Domestic offshore commerce (one day's notice). Except for a general rate 
decrease, amendments to domestic offshore tariffs which provide for 
changes in rates, fares, charges, Tariff Rules or other tariff 
provisions resulting in a decrease in cost, shall be filed to become 
effective not earlier than one day after the date of filing, using the 
symbol ``R,'' unless an exemption or special permission to become 
effective on less than said one day's notice has been granted by the 
Commission.
    (ii) Foreign commerce. Amendments which provide for changes in 
rates, charges, Tariff Rules, regulations or other tariff provisions 
resulting in a decrease in cost to the shipper may become effective upon 
filing and shall use the symbol ``R;'' except that all changes to 
controlled common carrier tariffs may not become effective earlier than 
30 days from the date of filing, unless special permission has been 
granted by the Commission under Sec. 514.18, or the change affects only 
tariff matters which are the subject of a suspension proceeding under 
Sec. 514.19 of this part.
    (19) ``S'' Special case matter: effective upon filing unless 
otherwise directed by the Commission. Special case numbers will be 
developed and issued by the Commission and shall be entered by the 
filer, along with the symbol ``S.'' Special case matter may not be filed 
with other types of amendments, including special case matter with other 
special case number(s). When filing special case matter, no filing/
amendments codes other than ``S'' may be used. Special Case filings may 
arise from the following situations:
    (i) Special permission under Sec. 514.18.
    (ii) Special Docket decision under Sec. 502.92 of this chapter.
    (iii) Correction or resubmission of essential terms.
    (A) Correction under Secs. 514.7(k) and 514.17.
    (B) Resubmission after notice of intent to reject under 
Sec. 514.7(j).

[[Page 181]]

    (iv) Filing to put tariff in order after rejection or overturning a 
rejection. (Except with the use of the Thru-date under 
Sec. 514.10(a)(5), the ATFI system cannot by itself restore material 
that has been superseded or rejected, so the filer is required to make 
any filings to put its tariff in order, through the special case 
procedures, if necessary.)
    (v) Filing of tariff data after suspension under Sec. 514.19.
    (vi) Other situations, as directed by the Commission.
    (20) ``T'' Terminal rates, charges or provisions or canal tolls over 
which the carrier has no control: effective upon filing. Wherever a 
tariff includes charges for terminal services, canal tolls, additional 
charges, or other provisions not under the control of the common carrier 
or conference which merely acts as a collection agent for the charges, 
and the agency making such changes does so without notice to the tariff 
owner, such provisions may be changed in the carrier's or conference's 
tariff upon filing and shall use the symbol ``T.''
    (21)-(22) [Reserved]
    (23) ``W'' for same-day withdrawal of erroneous data. A filer may 
withdraw an erroneous filing by the use of the symbol ``W'' with the 
corrected filing, but only if the corrected filing is made on the same 
date as the erroneous filing.
    (24) [Reserved] ``X'' Exemptions. (i) Controlled carrier data in 
U.S. bilateral trades or in trades served exclusively by controlled 
carriers. (See Sec. 514.3(a)(2).) A controlled common carrier shall use 
the symbol ``X'' for all tariff material filed under the following 
exempt situations:
    (A) As to any particular rate, the controlled common carrier's 
tariff contains an amount set by the duly authorized action of a 
ratemaking body, except that this exemption is inapplicable to rates 
established pursuant to an agreement in which all the members are 
controlled common carriers not otherwise excluded by this paragraph;
    (B) The controlled common carrier's rates, charges, classifications, 
Tariff Rules or regulations govern transportation of cargo between the 
controlling state and the United States (including its districts, 
territories and possessions); or
    (C) The controlled common carrier operates in a trade served 
exclusively by controlled common carriers.
    (ii) Domestic offshore tariff increases not general or across-the-
board increases (7 workdays' notice). (A) Except for an across-the-board 
increase (``A'') or a general rate increase (``G'') in domestic offshore 
commerce, an amendment which provides for changes in rates, fares, 
charges, rules, or other tariff provisions, which constitutes a cost 
increase in domestic offshore commerce, shall use the symbol ``X'' and 
be filed to become effective not earlier than 7 workdays' after the date 
of filing, unless an exemption or special permission to become effective 
on less than said 7 workdays' notice has been granted by the Commission. 
See paragraphs (b)(1) and (b)(7) of this section.
    (B) [Reserved]
    (C) An amendment which deletes a specific commodity and rate 
applicable thereto from a tariff, thereby resulting in the application 
of a higher ``cargo n.o.s.'' or similar general cargo rate, is a rate 
increase requiring the appropriate notice period and corresponding 
symbol under this section.
    (iii) The symbol ``X'' may be used for other situations involving an 
exemption or continuing special permission, as directed by the 
Commission.
    (c) Multiple amendments; same or different TLI. All filings with 
adequate notice, but with different, successive effective dates (each 
filing effective after the effective date of the previous filing), will 
be entered into the ATFI system, whether or not they amend the same TLI. 
On the other hand, unless an appropriate thru date (Sec. 514.10(a)(5)) 
is employed to protect the same or later effective date of an earlier 
amendment of the same TLI, only the later (or last) filing, which has an 
effective date the same as or earlier than that of the previous 
filing(s), will be given effect, in which case, the previous filing(s) 
will be presumed to be erroneous and void.
    (d) Supplements. ``Supplements'' to tariffs are prohibited. The ATFI 
system will electronically accommodate the necessary amendment of each 
TLI selected for general rate changes, through the GRI/GRD utility, 
assessorials and/or individual TLI changes. Other matters, previously

[[Page 182]]

handled by supplements in traditional, page-based tariffs, will be 
handled procedurally and/or through Tariff Rules, TLI notes, etc.

[57 FR 36271, Aug. 12, 1992, as amended at 57 FR 44509, Sept. 28, 1992; 
58 FR 28, Jan. 4, 1993; 58 FR 28790, May 17, 1993; 61 FR 66618, Dec. 18, 
1996]



Sec. 514.10  Other items used throughout ATFI.

    (a) Control dates and history. Various control dates are used for 
tariff material filed in and/or retrieved from the ATFI system. The 
following simulated screen illustrates these dates which are found on 
many ATFI screens and contains corresponding numbers keyed to 
explanatory and regulatory subparagraphs within this paragraph (in 
addition to ``Today'' which is the date of entry into the system and the 
screen). For special date provisions applicable to the essential terms 
of service contracts, see Secs. 514.17 (d)(3) to (d)(5).
[GRAPHIC] [TIFF OMITTED] TC03MR91.034

    (1)(i) Access date and history. The default date for the Access date 
is ``Today's date.'' Interactive ATFI, however, allows the user to set a 
different, desired access date for retrieving objects within the tariff. 
See Sec. 514.8(h)(3)(vii). The system will select only tariff items that 
are in effect on the chosen access date. This allows the user to examine 
the tariff as it existed on a particular date in the past, or to examine 
rates and Tariff Rules which have a future effective date.
    (ii) History; -Rev; +Rev. Similar to the functionality of the Access 
date, the following functions are also available on many ATFI screens:
    (A) History. This function displays the entire list of modifications 
to a tariff item.
    (B) -Rev. This function displays the previous revision (one revision 
at a time) of the tariff item just prior to the date displayed in the 
effective date field. See paragraph (a)(3) of this section.
    (C) +Rev. This function displays the next (future) revision of the 
tariff item according to the date in the effective date field. See 
paragraph (a)(3) of this section.
    (2) Filing date. The filing date, or the date any tariff or tariff 
element is processed by ATFI, is used to determine the beginning of the 
advance notice period required for various types of tariff material 
under Sec. 514.9(b). The filing date is determined for each of the three 
basic types of filing, as follows:
    (i) Interactive. The interactive filing system enters a filing date 
(current date) for every tariff object or tariff object update to be 
filed. Proposed objects with an outdated filing date will not be 
accepted by interactive ATFI. The day of filing is determined by the 
time of the ``Commit Authorized Filings to ATFI'' command at the 
completion of an interactive filing session and the ``Sent'' response 
from the system, indicating completion of that command at the ATFI 
central site, in local time in the U.S. Eastern Time Zone. The function 
``FileDate'' (or ``Default-Dates'' or ``Defaults'') enables the user to 
update its proposed filing date to match the date of expected 
transmission of the proposed filing.
    (ii) On-line batch. Filers will have a filing date automatically 
assigned to all tariff objects filed according to the start time of the 
file transfer, for file transfers that are successfully completed, U.S. 
Eastern Time Zone. On-line batch filers should plan the transmission of 
filing session files to allow for retransmission(s) starting during the 
same U.S. Eastern Time Zone date, in case the results of the initial 
transmission(s) are not successful.
    (iii) In-bulk (tape) batch. Filers will have a filing date (in local 
time in the U.S. Eastern Time Zone) assigned to all tariff objects filed 
according to the

[[Page 183]]

date of delivery of a tape to a designated location. If the date of 
delivery is a normal Commission work day, the filing date can be that 
date if the tape is delivered by 5:00 p.m. If the delivery date is not a 
normal Commission work day, or the tape is delivered after 5:00 p.m. on 
a normal work day, the filing date may not be until the next Commission 
work day.
    (3) Effective date. The Effective date is the date upon which a 
filed tariff or tariff element is scheduled to go into effect by the 
filer. It determines the end of the advance notice period required for 
various types of tariff material under Sec. 514.9(b). Specifically, a 
tariff provision becomes effective at 12:01 a.m. on the beginning of the 
effective date. In interactive filing, the Effective date can be changed 
through ``FileDate,'' etc., as described in paragraph (a)(2)(i) of this 
section.
    (4) Expiration date. The Expiration date is the last day, after 
which the entire tariff or tariff element (e.g., TLI), which is 
designated to expire, is no longer in effect. After midnight at the end 
of this day, the current version of the tariff will not include the 
expired object. In the screen example, the entire item (e.g., TLI) 
expires on May 1, 1992, leaving no specific rate, which could result in 
an increase to an NOS rate, for which advance notice from the filing 
date is required under Sec. 514.9(b). The expired object becomes a part 
of the history objects for the tariff.
    (5) ``Thru'' date. The thru date is the date after which an 
amendment to a tariff element (e.g., TLI rate) is designated by the 
filer to be unavailable for use and the previously effective tariff 
element automatically goes back into effect. After midnight at the end 
of the Thru date, the previously effective tariff object will resume its 
effect. Thru-date tariff objects recognize and maintain the validity of 
the unexpired tariff objects they temporarily supersede during their 
time of effectiveness. In the screen example, the effective item reverts 
to the item prior to effectiveness on March 1, 1992, which goes out of 
existence when expired on May 1, 1992. Where an increase requires an 
advance notice (e.g., 30 days) under Sec. 514.9(b), a Thru-date item 
which is:
    (i) A decrease when initially effective requires 30 days' notice 
from the Filing date to the Thru date, irrespective of when it becomes 
effective (no earlier than Filing).
    (ii) An increase when initially effective requires 30 days' notice 
from the Filing Date to the Effective date, but may revert (Thru date) 
to the previous item on or after the Effective date.
    (b) Locations and groups. The names of places entered by filers, 
such as in origin and destination scopes and TLIs, shall conform in 
spelling to, and will be validated by, ATFI glossaries.
    (1) Names--(i) Point names. ATFI recognizes approximately 250,000 
world place names.
    (ii) Port names. ATFI recognizes ocean port names, using spellings 
concordant with the Point Names list, where there is a corresponding 
point name.
    (2) Location groups. In the primary tariff, or in a governing tariff 
under Sec. 514.12(a)(1)(ii), the filer will have the option to define 
and create groups of cities, states, provinces and countries (e.g. 
location groups) or groups of ports (e.g. port groups), which may be 
used in the construction of TLIs and other tariff objects in lieu of 
specifying particular place names in each tariff item, or creating 
multiple tariff items which are identical in all ways except for place 
names. A partial screen illustrating the locations within an origin port 
group follows:
[GRAPHIC] [TIFF OMITTED] TC03MR91.035

    (c) Currency. ATFI recognizes a large number of foreign currencies 
for rates and charges. The complete list of

[[Page 184]]

ATFI-recognized currencies is available on-line. Currency conversion 
rates are maintained and updated in ATFI on a periodic basis; except 
that these conversion rates are for comparison purposes only, not as 
official conversion rates for booking or billing. See 
Sec. 514.8(h)(3)(vi).
    (d) Assessorials and algorithms--(1) Requirement.--(i) Charges. 
Assessorial or accessorial charges, which are to be added to the basic 
ocean freight rate to calculate the total cost to the shipper, shall be 
clearly shown through mathematical formulas or algorithms, as further 
explained in the Batch Filing Guide (as well as in the rest of the User 
Manual), when the applicability of the additional charge to the basic 
ocean freight rate can be accurately determined prior to the carrier's 
receipt of cargo. Examples of the types of assessorial charges that 
would usually not be determinable prior to cargo shipment or preparation 
of the Bill of Lading are:
    (A) Free Time and Demurrage under e.g., a rule for detention or 
demurrage on carrier equipment.
    (B) Diversion of cargo.
    (C) Blocking, bracing, staking, securing or protective-covering 
charges that cannot be predetermined.
    (D) Cargo held by carrier or terminal storage.
    (ii) Precedence There should be no conflict between the algorithm 
and the textual description of the assessorial (if any), but, if there 
is, the algorithm shall take precedence.
    (iii) Predeterminable charges. Assessorial charges which can be 
determined prior to shipment shall be expressed in algorithm form and 
may be contained in Tariff Rules of tariffs under Sec. 514.15, as well 
as in commodity descriptions and TLIs of tariffs under Sec. 514.13. 
Algorithms, including dummy algorithms under paragraph (d)(1)(iv) of 
this section, are not accommodated in essential terms publications or 
statements of essential terms under Sec. 514.17.
    (iv) Non-predeterminable charges; null linkage. Assessorial charges, 
which cannot be determined prior to shipment and which are not expressed 
in the normal algorithm form, shall be set forth in full-text format in 
the same locations as described in paragraph (d)(1)(iii) of this 
section. In order to apprise the retriever that such charges may be 
applicable, however, the filer shall link all of these charges to the 
appropriate item(s) using null linkage (dummy algorithms), i.e., the 
algorithm: WHEN--ALWAYS; THEN--NOTHING.
    (2) Overview. Algorithms are expressed as one or more condition and 
calculation statement sets. Each set reflects a separate possible 
condition which may apply, and the means of calculating a tariff 
additional charge for that condition. A set is composed of a group of 
condition statements, followed by a group of calculation statements. The 
allowable condition statements accommodate historically common criteria 
for the assessment of ocean freight and charges (e.g., ``When 
Destination is `New York','' ``When Container Size is `40Ft','' etc.). 
These statements, in turn, accommodate historically common factors used 
in the computation of freight and charges (e.g., weight, volume, origin, 
container size, etc.).
    (3) Calculation statements. The calculation statements, listed in 
the Batch Filing Guide at Appendix B, section 2, include common 
arithmetic functions, including

addition [ < X> = < A> + < B> ],

subtraction [ < X> = < A> - < B> ],

multiplication [ < X> = < A> X < B> ] and

division [ < X> = < A> / < B> ], as well as other operations, such as

minimum [ < X> = MIN ( < A> , < B> ) ] and

maximum [ < X> = MAX ( < A> , < B> ) ] functions.
    (4) Screen illustration. A partial screen (with pop-up help window), 
illustrating algorithms with multiple condition sets for a commodity 
description, follows:

[[Page 185]]

[GRAPHIC] [TIFF OMITTED] TC03MR91.036


Between the two (condition) sets, there is an implied ``OR'' operator 
(weight ``OR'' measure). This means that either one or the other of 
these condition sets must be TRUE in order for the assessorial to apply. 
After entering the rated weight and volume in these condition sets, the 
system will process them in the order in which they appear, evaluating 
whether each is TRUE or FALSE. If TRUE, the assessorial is applicable to 
the shipment and will be entered onto the main screen where other 
potentially applicable assessorials (e.g., in different Tariff Rules) 
will also be processed.
    (5) Application. For filing, a toggling (on or off) function 
provides specific application (``linking'') of an assessorial to a 
commodity or Tariff Rule. For retrieving, applicable assessorials are 
added to the applicable TLI to find the overall cost for the shipment. 
Before shipment, however, there will be some condition sets where the 
values are not known (e.g., a surcharge for a non-scheduled port where 
the ship calls in an emergency and unloads the shipment). In these 
cases, assessorials cannot be accurately applied prior to booking or 
sailing. Nonetheless, filers shall use the null linkage or dummy 
algorithm functionality to label and link assessorials in full text form 
to other ATFI objects, such as TLIs and commodities, for the purpose of 
enabling the retriever to identify all potentially applicable charges.

[57 FR 36271, Aug. 12, 1992, as amended at 58 FR 28, Jan. 4, 1993]



Sec. 514.11  Organization and tariff records; tariff scope.

    (a) Organization record. The organization record is the master 
record for all tariff information in ATFI for a specific firm. Each firm 
wishing to file tariffs or essential terms must complete and submit an 
ATFI User Registration Form (exhibit 1 to this part) under 
Secs. 514.4(d) and 514.8(f). Upon Commission approval of organization 
registration in ATFI, a ``shell'' organization record, specific to the 
requestor, is established and contains the organization number, 
organization name and organization type. The firm's authorized 
representative can then access the newly established organization record 
(see partial screen), using the special access Logon ID and password for 
organizational record maintenance, to file the address for the firm's 
home office, and complete the affiliations, d/b/a, and publisher lists 
as appropriate. To maximize security of the data, maintenance (editing) 
of the organization record will be permitted only through the 
interactive mode by the individual in the firm holding the special 
access LOGON ID and password for organization record maintenance. The 
following simulated screen is indexed to subsequent, explanatory 
subparagraph (numbers) of this paragraph. As with all ATFI screens, 
filers shall enter complete and accurate data in all required fields.

[[Page 186]]

[GRAPHIC] [TIFF OMITTED] TC03MR91.037

    (1) Org number and agreement number. The organization and agreement 
numbers are generated by the Commission for the particular tariff 
owners. The agreement number is filled in only if the organization is an 
agreement (conference, etc.). The organization number is also used to 
verify whether a current anti-rebate certification has been filed under 
Sec. 514.1(c)(1)(iii).
    (2) Org name. The organization name (filled in by the FMC) is the 
official name of the firm (from the corporate charter, etc.), often a 
parent corporation, responsible for filing tariffs, often by several 
affiliates through d/b/a names. The Org Name on the Org Record screen is 
not changeable by the filer.
    (3) The Country of home office is the country in which the firm's 
headquarters is located.
    (4) Org type would be ocean carrier, conference, NVOCC, etc.,
    (5) Controlled. This field is filled in by the Commission and 
indicates whether the firm is a controlled carrier (``Y'' or ``N'').
    (6) SCAC Code. The Standard Carrier Alpha Code (assigned by the 
Motor Freight Association) further identifies the registered 
organization.
    (7) Home office address information. A second line for street 
address is provided, if necessary, and names of contact person(s) shall 
be entered. Otherwise, the field is self-explanatory.
    (8) Command line. While not shown on most screen illustrations in 
this part, the items and functions in (below) the command line provide 
instructions for accessing help screens, tables and other information 
relevant to the screen. The data required in paragraph (a)(9) of this 
section are found on separate screens which are accessed by highlighting 
the item and pressing ``ENTER.''
    (9) (i) Affiliations. The affiliations are: members of a filing 
conference; participating carriers; or conferences to which a filing 
carrier belongs. As with the organization, itself, both the name and 
Commission-assigned number shall be listed.
    (ii) dba's. The d/b/a (``doing business as'') names of affiliated 
firms are listed

[[Page 187]]

here. Filers shall ensure that the d/b/a's of all firms filing tariffs 
under the organization umbrella are accurately listed.
    (iii) Publishers. Filers shall list all publishers used to file and 
maintain the organization's tariffs. Publishers will be assigned Org 
Numbers by the FMC which will be entered here.
    (b) Tariff Record. The tariff record(s) for a specific organization 
registered under paragraph (a) of this section show the characteristics 
of each tariff. The ATFI system provides an index of all organization's 
tariffs from the data furnished in the Tariff Record. The following 
simulated screen is indexed to subsequent, explanatory subparagraphs 
(numbers) of this paragraph. As with all ATFI screens, filers shall 
enter complete and accurate data in all required fields.
[GRAPHIC] [TIFF OMITTED] TC03MR91.038

    (1)(i) Org number is the same is in paragraph (a)(1) of this 
section. This number cannot be changed by the filer.
    (ii) Tariff  is a 3-digit number assigned by the organization to 
distinguish it from its other tariffs.
    (iii) Tariff code uniquely identifies a tariff within the ATFI 
system. It consists of either the organization number plus the user-
assigned tariff number (e.g., 999999-001) or the SCAC code (see 
paragraph (a)(6) of this section) plus the user-assigned tariff number, 
as in the illustration. The SCAC code takes precedence when previously 
provided on the ATFI User Registration Form (Exhibit 1 to Part 514) for 
entering on the organization record during creation or amendment.
    (2) Org name is the same as in paragraph (a)(2) of this section.
    (3) The d/b/a name could be a name different from the organization 
name, but shall appear in the list of d/b/a's in the organization record 
under paragraph (a)(9)(ii) of this section.

[[Page 188]]

    (4) The Title of the tariff is assigned by the organization and 
could be as shown in the illustration.
    (5) Tariff Type in the illustration is ``FC'' for ``foreign 
commodity tariff'' as set forth in the ``Batch Filing Guide's'' Data 
Element Dictionary.
    (6) Tariff TON is the default (unless changed) measurement units 
throughout the tariff for both weight and volume, as codified in two 
tables of the ``Batch Filing Guide's'' Data Element Dictionary.
    (7) Monetary units is the default (unless changed) currency unit to 
be used throughout the tariff. See Sec. 514.10(c).
    (8)(i) Address information is the same as in paragraph (a)(7) of 
this section, except that more than one address and contact person can 
be provided (see ``Select Address'' in Command Line), such as for the 
tariff publisher, the organization's tariff filing, billing and/or 
claims office, and an agent for service of process under paragraph 
(b)(8)(ii) of this section.
    (ii) Foreign-domiciled NVOCCs. Every NVOCC not domiciled in the 
United States shall enter in the first address field provided in the 
tariff record the name and address of a person in the United States 
designated under Sec. 514.15(b)(24)(ii) and Sec. 583.5 of this chapter 
as its legal agent for service of judicial and administrative process, 
including subpenas.
    (9) Command line. See paragraph (a)(8) of this section.
    (10) Scope: origin and destination. The scope of each individual 
tariff is defined in more detail, in Tariff Rule 1 of the tariff 
(514.15(b)(1)), but entered in two specific location groups (see 
Sec. 514.10(b)(5)(ii)) in the auxiliary screen for the tariff record. 
All other origin and destination ports and points filed in the tariff 
shall be within the geographic scope of the regions and/or countries 
defined in the tariff record scope.
    (i) Origin. The origin scope is a single location group or port 
group in a tariff encompassing the allowable origins for TLIs defined in 
that tariff.
    (ii) Destination. The destination scope is a single location group 
or a port group in a tariff encompassing the allowable destinations for 
TLIs defined in that tariff.
    (iii) Between tariffs. The filer may insert a statement in the scope 
fields that the rates and charges, etc. are between two location groups, 
but shall create separate origin and destination pairs, as well as TLIs, 
for each direction.
    (iv) Ports and/or points. A tariff with origin and destination 
groups containing only ports will be a port tariff only; no onward 
through intermodal rates will be allowed. A tariff with non-port cities, 
states, or country names in either the origin or destination group will 
be eligible to contain intermodal rates under Sec. 514.15(b)(1).



Sec. 514.12  Governing and general reference tariffs.

    Where any matter directly affects a TLI, it must be filed in 
electronic form in the appropriate tariff in the appropriate place. 
Thus, a governing tariff may be a commodity tariff, but only locations, 
inland rate tables and Tariff Rule level assessorials (and not commodity 
descriptions or TLIs) within such a governing tariff may be linked to 
govern matter in another (``governed'') tariff.
    (a) Governing tariffs (filed electronically). A filer which files 
multiple tariffs with duplicative and/or commonly applicable items, such 
as Tariff Rules or inland rate tables, may file a governing tariff which 
contains, and is referred to in the governed tariff(s) as a source for, 
location groups, inland rates and rules-level assessorial charges, which 
are applied as if they were a part of the governed tariff.
    (1) Types. Due to ATFI's ``linkage'' design feature, whereby tariff 
items at rules level (location groups, inland rate tables and algorithms 
in rules), can be electronically referenced and made applicable from one 
tariff (governing) to another (governed), a filer may create and use 
only the following types of governing tariffs, or combinations thereof, 
which shall accompany governed tariffs in the ATFI electronic format:
    (i) Rules tariffs, including Hazardous Cargo Tariff Rules and/or 
other Tariff Rules which contain assessorial charges (see 
Sec. 514.15(b));
    (ii) Location group tariffs (see Sec. 514.10(b)(2));

[[Page 189]]

    (iii) Inland rate table tariffs (see Sec. 514.15(b)(1));
    (iv) Bill of lading tariffs (see Sec. 514.15(b)(8));
    (2) Creation and link to governed tariff. Governing tariffs shall be 
created by using ATFI's standard tariff creation function and referenced 
in each governed tariff, using the ``Governing Tariff'' function under 
Sec. 514.8(h)(3)(v)(D), where the list of governing tariffs may be 
accessed.
    (3) Conflicts between governing and governed tariffs. A Tariff Rule 
affecting a TLI or passenger fare may appear in only one governing 
tariff. See Sec. 514.4(b)(3)(iii). Filers shall ensure the exclusive and 
accurate application of tariff matter contained in governing and 
governed tariffs to every TLI contained in the governed tariff, as 
illustrated by the following:
    (i) Application of Tariff Rules and associated assessorial charges. 
Tariff Rules, and any assessorial charges within the Tariff Rules, from 
both the governed tariff and the governing tariff, will automatically 
apply to any shipment, unless the Tariff Rules in either or both tariffs 
are ``turned off,'' using system-assessorial-charge-application flags to 
disable the charge application, which will indicate the ``Yes'' or 
``No'' status to the users of the central site system. Unless ``turned 
off,'' duplicative, redundant, or overlapping assessorial charges could 
apply to shipments, because the ATFI central site applications will not 
deconflict like-type assessorial charges. Where the non-rate-affecting 
Tariff Rules' texts conflict between governing and governed tariffs, the 
governed Tariff Rules will prevail.
    (ii) Location groups. Location groups from both governed and 
governing tariffs will apply to any shipment, unless both tariffs 
include a group with the same name. In this case, if not corrected or 
accommodated by the filer, the location group from the governed tariff 
will take precedence and the governing tariff location group of the same 
name will be ignored.
    (b) General reference tariffs (in paper format). Certain tariffs, 
other than governing tariffs described in paragraph (a) of this section, 
are general reference tariffs and, if they do not contain assessorial 
charges or other matters affecting the TLI, will continue to be ``on-
file'' at, or accepted by, BTCL, in paper format. General reference 
tariffs are usually compiled by firms (with FMC-assigned Org Numbers) 
other than those required to file ocean freight tariffs, and are allowed 
to be cross-referenced in the electronically-filed tariffs. General 
reference tariffs include:
    (1) Hazardous Cargo Rules Tariffs, not containing rates or charges 
(see Sec. 514.15(b)(16) and paragraph (a)(1)(i) of this section).
    (2) Equipment Registers.
    (3) Equipment Interchange Tariffs. (i) Equipment interchange tariffs 
may be filed in electronic format under this part, or, in paper format, 
arranged in the following order:
    (A) Title Page.
    (B) Check Sheet (optional).
    (C) Table of Contents.
    (D) Explanation of Symbols, Abbreviations and Reference Marks.
    (E) Tariff Rules.
    (F) Free Time and Charges--List of Exceptions to Standard Free Days 
and/or Charges.
    (ii) The Tariff Rules section of the equipment interchange tariff 
shall include Tariff Rules 1 (Scope, Sec. 514.15(b)(1)) and 21 (Use of 
Carrier Equipment, Sec. 514.15(b)(21)). Other unused mandatory Tariff 
Rules in Sec. 514.15(b) shall be noted as ``Not Applicable.'' Equipment 
interchange tariffs need not reference carrier or conference rate 
tariffs.
    (4) Mileage guide publications.
    (c) Essential terms of service contracts. To the extent possible 
under the special full-text format for electronic filing of the 
essential terms of service contracts under Sec. 514.17, the following 
types of governing tariffs are permissible:
    (1) Essential terms publications under Sec. 514.17(b) (solely for 
essential terms documents); and
    (2) Tariffs of general applicability under Sec. 514.17(b)(2) (solely 
for essential terms publications).

[57 FR 36271, Aug. 12, 1992, as amended at 58 FR 28, Jan. 4, 1993; 58 FR 
30715, May 27, 1993]

[[Page 190]]



Sec. 514.13  Commodities and tariff line items (``TLIs'').

    In ATFI, commodities and rates (TLIs) are created separately for 
system reasons, but each TLI under paragraph (b) of this section shall 
be associated with, applicable to, and subsumed under, an already 
existing, specific commodity under paragraph (a) of this section. There 
may be many TLIs applicable to one commodity. A different four-digit 
code must be assigned for every TLI applicable to one particular 
commodity as a suffix to the one 10-digit commodity code, created by the 
tariff owner under paragraph (a) of this section.
    (a) Commodities--(1) Choice of methodology. For each separate 
commodity in a tariff, a separate and distinct 10-digit numeric code 
shall be used. Within the system's transaction-set parameters, filers 
may use any commodity coding they wish but are urged to utilize the 
Harmonized System (``HS'') for both the commodity coding and associated 
terminology (definitions), to the maximum extent possible.
    (2) Commodity description--(i) General requirements. (A) Commodity 
rates shall be specific and may not apply by implication, or otherwise, 
to analogous articles.
    (B) Commodity descriptions shall include dimensions and weights for 
cargo rated on an ``Each'' (``EA'') basis, when the packaging is non-
standard (e.g., machinery).
    (C) Commodities subject to minimum quantity requirements for 
carriage or rating shall include a clear statement of such requirements 
in the commodity description and/or TLI to which they apply. See also 
Tariff Rule 11 (Sec. 514.15(b)(11)).
    (ii) Exclusions; special provisions. In the commodity description 
record, filers shall list commodities excluded from the commodity 
description and provide notes to articulate any special provisions that 
may apply to the commodity description, e.g., where a commodity is 
subject to time/volume, open or independent-action rates, as described 
in paragraph (b)(19) of this section.
    (iii) Assessorial charges applicable to commodity. Assessorial 
charges (see Sec. 514.10(d)) that are specific to a described commodity 
shall be applied to the commodity by creating the appropriate algorithm 
condition sets in the commodity description record.
    (3) Use of the HS code (Optional).--(i)The Harmonized System 
(``HS''). In HS, the first two digits identify the chapter. The basic 
commodity chapters are numbered from ``1'' to ``97.'' Each chapter is 
divided into several commodity headings. The second two HS digits 
identify the heading. Each heading is divided into several commodity 
subheadings. The third two HS digits identify the subheading. Finally, 
four more digits (digits 6-10) can be used to further classify 
commodities within the HS chapter, heading and subheading.
    (ii) Classification and description under the optional HS code. When 
using HS, commodities should be classified as specifically as possible 
under the HS, in a manner which conforms the product under substantive, 
rather than simply textual, criteria. Each commodity description should 
be consistent with the corresponding HS description for the particular 
code or parts of the code used. When using HS, for the first six digits 
(of the 10-digit ATFI commodity code), filers should not use other codes 
not found in the HS, but should use the modified HS and special ATFI 
codes described in this paragraph. The remaining system four digits are 
to be user supplied, but different commodities may not have the same 10-
digit number.
    (iii) Six-digit code applicable to commodity. If the commodity 
description established by the filer coincides with an HS description at 
the (first) six-digit classification level, the six-digit code should be 
used, e.g., ``9503.10--Electric trains.''
    (iv) Six-digit code inapplicable to commodity. When the commodity 
description established by the filer does not fully coincide with any 
(first) six-digit description in the HS, as provided in paragraph 
(a)(3)(iii) of this section, and it would be inaccurate to describe it 
using a six-digit classification, only that part of the HS 
classification that is applicable to the filer's commodity description 
should be used, as follows:

[[Page 191]]

    (A) Four digits. If a commodity can be classified only by HS chapter 
and heading, then the filer should use the correct chapter and heading 
digits (digits 1-4), and the subheading digits (digits 5-6) should be 
filled in with ``00,'' e.g., ``9501.00--Wheeled toys, n.o.s.''
    (B) Two digits. If a commodity can be classified only by the chapter 
(digits 1-2), then the heading and subheading digits (digits 3-6) should 
be ``00.00,'' e.g., ``9500.00--Toys, n.o.s.''
    (4) Mixed commodities and mixed lots. (i) Except for project rates 
under paragraph (a)(5) of this section, mixed commodities (to the extent 
not accommodated by the ``00'' HS approach described in paragraph 
(a)(3)(iv)(B) of this section) will require the ATFI code ``99'' for the 
first two digits, whether or not HS is used, with the next four digits 
('s 3-6) available at filers' option, and will include situations 
involving:
    (A) One specific commodity description which includes several 
commodities classified in more than one HS chapter (or filer's 
equivalent), e.g., ``Footwear'' or ``Footwear, n.o.s.'' (various types 
or parts of which are contained in HS chapters 44, 64, 83, 90 and 98); 
or
    (B) ``Mixed commodities'' (semble), as a commodity description, 
which includes several commodities, all of which must be specifically 
listed in the description for the mixed commodities, whether or not HS 
is used.
    (ii) Whether or not HS is used, where specified proportions of 
certain mixed commodities or other conditions are required to comply 
with the description or to be eligible for a particular TLI associated 
with the description, the specific proportions and/or conditions shall 
be set forth specifically for the commodity, and/or in a Tariff Rule 
under Sec. 514.15, as applicable.
    (5) Projects (for ``Project Rates''). A ``Project'' commodity 
description for project rates (TLIs) includes materials and equipment to 
be employed in the construction or development of a named facility used 
for a major governmental, charitable, manufacturing, resource 
exploitation, public utility or public service purpose, and also 
includes disaster relief projects. None of the materials or equipment 
covered shall be transported for the purpose of resale or other 
commercial distribution.
    (i) Any ``Project'' will require the ATFI code: ``98'' for the first 
two digits, with the next four digits ('s 3-6) available at filer's 
option, and the commodity description record shall include:
    (A) An exact description of the project which demonstrates that it 
is qualified for a ``project rate'' under paragraph (a)(5), introductory 
paragraph, of this section.
    (B) A statement that only proprietary materials actually employed in 
the project are eligible for the project rate. The filer shall provide 
for the use of a bill of lading clause on all project rate cargo, which 
shall state that:

    All materials included in this bill of lading are of a wholly 
proprietary nature and shall not be resold or otherwise commercially 
distributed at destination.

    (C) For domestic offshore carriers, a statement that the project 
rate will cover the carrier's variable costs and contribute to its fixed 
expenses.
    (ii) As an alternative to listing a ``project'' as a separate 
``commodity'' under paragraph (a)(5)(i) of this section, project rates 
can be a stated discount for all commodities, a group of commodities, or 
particular TLIs thereunder, achieved by algorithms set forth in Tariff 
Rule 33 (Sec. 514.15(b)(33)), and properly applied or linked to each 
commodity and/or TLI, as further described in the ATFI User Guides.
    (6) Codes for non-commodity categories. A TLI may be applicable to 
all commodities, or all commodities of a class, on which specific 
commodity descriptions are not stated, such as ``cargo, n.o.s.'' (not 
otherwise specified), ``general cargo,'' ``freight--all kinds,'' or 
other identifying name. Because the ATFI system requires TLIs to be 
associated with and subsumed within a commodity, TLIs not directly 
involving specific commodities must still have a ``commodity code.'' 
Therefore, TLI rates, such as for ``FAK'' and ``NOS'' (entire tariff) 
will require the first two digits of the ``commodity code'' to be 
``00,'' with the next four digits ('s 3-6) available at filer's option.
    (7) Commodity index. (i) Each commodity description created under 
this

[[Page 192]]

section shall have at least one similar index entry which will logically 
represent the commodity within the alphabetical index. Filers are 
encouraged, however, to create multiple entries in the index for 
articles with equally valid common use names, such as, ``Sodium 
Chloride,'' ``Salt, common,'' etc.
    (ii) If a commodity description includes two or more commodities, 
each included commodity shall be shown in the index.
    (iii) Items, such as ``mixed commodities,'' ``projects'' or 
``project rates,'' ``n.o.s'' descriptions, and ``FAK,'' shall be 
included in the commodity index.
    (b) Tariff Line Items (``TLIs'')--(1) General requirements. (i) All 
rates and charges shall be stated in a systematic and straightforward 
manner. Rates, charges, Tariff Rules, regulations or classifications may 
not be duplicative, conflicting or otherwise ambiguous when compared 
with items in the same tariff or in any other tariff to which the 
publishing filer is a party.
    (ii) The minimum TLI requisites are a valid, accepted commodity 
description to which the TLI is applicable, valid filing and effective 
dates, origin and destination locations or location groups within the 
scope of the tariff, a rate, rate basis, and service designation.
    (2) Illustrative screen. (i) As with all ATFI screens, filers shall 
enter complete and accurate data in all required fields. The information 
shown on the simulated screen is actually entered on the ``ATFI NEW 
(Commodity) DESCRIPTION CREATION'' and ``ATFI NEW TLI CREATION'' 
screens, but when completed, is displayed on the following simulated 
screen, which is indexed to explanatory subparagraphs (numbers) of this 
paragraph. An asterisk (*) before an item indicates that the particular 
field is NOT required to be completed, except when the situation 
requires it (e.g., special case number, or when an entry is required to 
distinguish the TLI from another TLI within the same commodity).
    (ii) Where an optional TLI screen field (*) is filled in, the TLI 
will apply only to shipments that comply with the condition, e.g., where 
the packaging type is ``Crate (CRT),'' then only to the particular 
commodity as crated. Otherwise, if the packaging code is left blank, the 
TLI would apply to all shipments of the particular commodity, 
irrespective of the package type.

[[Page 193]]

[GRAPHIC] [TIFF OMITTED] TC03MR91.039

    (3) Tariff title. See Sec. 514.11(b)(4).
    (4) Tariff code. See Sec. 514.11(b)(1)(iii).
    (5) (Commodity number and description.) The screen's description 
corresponds with the optional HS description for the 6-digit HS code 
used, as described in paragraph (a)(3)(iii) of this section.
    (6) TLI . The 14-digit TLI number consists of the commodity code 
(first ten digits), as described in paragraph (a) of this section, plus 
four unique suffix TLI digits, controlled by the ATFI system to avoid 
duplications of, and to differentiate, TLIs within the same commodity. 
For example, the TLI suffix of ``0001'' in the screen is based on a 40-
foot container; the suffix ``0002'' could be based on a different TLI 
for a 20-foot container.
    (7) Filing date (``Filed''). See Sec. 514.10(a)(2).
    (8) Amendment type. The symbol ``R'' stands for a reduction under 
Sec. 514.9(b)(18).
    (9) Effective date (``Effective''). See Sec. 514.10(a)(3). Since the 
screen amendment is a reduction in foreign commerce and the filer is not 
a controlled carrier, it can take effect upon filing. See 
Sec. 514.9(b)(18).
    (10) Thru (date). See Sec. 514.10(a)(5). Special or emergency rates 
may be filed as thru-date TLIs, with explanation of the rates in the TLI 
notes, but only if the TLI notes are explanatory, without affecting the 
level of the rate.
    (11) Expiration date (``Expires''). See Sec. 514.10(a)(4).
    (12) Special case (number). The special case number (not applicable 
in the illustration) is assigned by the Commission. See 
Sec. 514.9(b)(19).
    (13) Tariff Line Item Detail. This section contains the routing, 
shipment, rate data, etc.
    (14) Rates per Container Load. This field echoes the rate basis 
under paragraph (b)(17) of this section.

[[Page 194]]

    (15) Origin/destination. The origin and destination of the shipment 
can be a location point or group under Sec. 514.10(b), but must be 
within the tariff scope under Sec. 514.11(b)(10).
    (i) Between TLIs prohibited. Every TLI shall have but one origin and 
destination and may not purport to show the same rate in both 
directions. See Sec. 514.11(b)(10)(iii).
    (ii) U.S. to/from foreign country. In foreign commerce, the origin 
may not include any port or point within the same country in the 
destination (including the United States).
    (16) ``VIA.'' ``VIA'' indicates the port or port group through which 
the cargo will be carried, outbound from its origin, and/or inbound to 
its destination, for through transportation. In the illustration, the 
TLI includes all rates and charges for the inland portion from Antwerp 
to Paris and is, therefore, a ``through rate.'' See Sec. 514.15(b)(1).
    (17) Rate basis. In the illustration, the rate basis is ``PC (Per 
Container)'' under the ``Batch Filing Guide's'' Data Element Dictionary 
(``DED'') code. Regulations for other rate bases include:
    (i) AV. When an Ad Valorem (``AV'') TLI is published, the filer 
shall include in the applicable assessorial charges (in commodity 
description, TLI or Tariff Rule) the algorithm(s) showing the exact 
method of computing the charge (e.g., shipper's declaration, invoice 
value, delivered value), and, in Tariff Rule 12 (Sec. 514.15(b)(12)), 
the additional liability, if any, assumed by the common carrier in 
consideration therefor.
    (ii) EA. TLIs published on an ``Each'' basis shall include specific 
provisions in Tariff Rule 2, Application of Rates (Sec. 514.15(b)(2)), 
for the applicable sizes and dimensions of general packaging units 
(e.g., barrels, crates, cartons under paragraph (b)(22) of this section) 
when the number of these packages is the basis for the calculation of 
freight. Commodity descriptions shall include dimensions and weights for 
cargo rated on an ``Each'' (``EA'') basis, when the packaging is non-
standard (e.g., machinery).
    (iii) W. TLI's published on a weight only basis shall use the symbol 
``W.'' For green salted hides in foreign commerce rated on a weight 
(``W'') Basis, see Tariff Rule 17 (Sec. 514.15(b)(17)).
    (iv) WM. (A) Whichever is greater. TLIs published on a weight or 
measure (``WM'') basis shall be presumed to mean that the basis 
generating the greater revenue to the carrier will apply. Filers wishing 
to publish rates based on the lesser revenue of the two alternate bases 
shall construct Tariff Rules and assessorials which reflect this method 
of rate computation. Tariff Rule 2, Application of Rates 
(Sec. 514.15(b)(2)), shall set forth the carrier's intentions in detail.
    (B) Autos in domestic offshore commerce. If not rated on an ``EA'' 
basis under paragraph (b)(17)(ii) of this section, automobiles in 
domestic offshore commerce may not be rated on either weight or measure, 
whichever is greater (lesser), but only on one of these bases, and, in 
addition to using the appropriate rate basis code (``M'' or ``W''), the 
TLI Notes shall reflect the appropriate controlling formula, as follows:
    (1) Automobiles rated by measure (``M''). For automobiles rated by 
measure, the cubic measurement for the five most recent model years 
shall be that prescribed by the manufacturer of the particular make and 
model as shown in Tariff Rule 22 (Sec. 514.15(b)(22));
    (i) Automobiles whose measurements are not shown in Tariff Rule 22 
shall be individually measured by the carrier. This fact shall be noted 
on the bill of lading; and
    (ii) Automobiles which, because of additional accessories or 
equipment, vary in dimensions from the standard measurements shown in 
paragraphs (b)(17)(iv)(B)(1), introductory paragraph, and 
(b)(17)(iv)(B)(1)(i) of this section, shall be individually measured by 
the carrier. This fact shall be noted on the bill of lading along with 
the actual variation (in cubic feet) from the standard measurements; or
    (2) Automobiles rated by weight (``W''). Each automobile tendered 
for shipment shall be individually weighed on the carrier's scale. Where 
the carrier does not possess weighing facilities, the shipper shall have 
the vehicle weighed by a certified weighmaster and furnish the 
weighmaster's signed statement to the carrier.

[[Page 195]]

    (18) (Default) Units (of weight/measure.) The application of all 
rates and charges shall be clear and definite and explicitly stated per 
cubic foot, cubic meter, kiloton, kilogram or pound, or specified 
numbers of such units. In the illustration, the filer has defaulted its 
tariff to U.S. dollars. See paragraph (b)(19) of this section. The 
example in the illustration also shows default units of ``1 KT'' or 
``1000 CBM,'' which were originally set by the filer in the Tariff 
Record under Sec. 514.11(b)(6). (The default units are not applicable to 
the illustrated TLI, which is on a ``Per Container'' basis, but see 
paragraph (b)(17) of this section.)
    (19) Rate(s). The rate is the base ocean freight rate to ship the 
commodity and, in the illustration, is defaulted to U.S. Dollars which 
can be changed by the filer. See paragraph (b)(18) of this section and 
Sec. 514.10(c). The commodity description under paragraph (a) of this 
section, and the TLI, by symbol or TLI note, as appropriate, shall 
clearly identify and explain the following types of rates and the 
commodities to which they are applicable:
    (i) Time/Volume rates in foreign commerce. A time/volume rate means 
a rate published in a tariff which is conditional upon receipt of a 
specified aggregate volume of cargo or aggregate freight revenue over a 
specified period of time.
    (A) Time/volume rates may be offered by common carriers or 
conferences and shall be published as TLIs for each commodity 
description where they apply. The commodity description shall note the 
availability and terms of the time/volume rate(s). (See paragraph 
(a)(2)(ii) of this section.) The TLI(s) shall state in the TLI note(s) 
that the rate is a time/volume rate.
    (B) All rates, charges, classifications, Tariff Rules and practices 
concerning time/volume rates must be set forth in the appropriate tariff 
items, e.g., commodity description, TLI, and/or Tariff Rule 26 
(Sec. 514.15(b)(26)), which shall identify the shipment records that 
will be maintained to support the rate.
    (C) Once a time/volume rate is accepted by one shipper, it shall 
remain in effect for the time specified, without amendment.
    (D) Any shipper utilizing a time/volume rate must give notice to the 
offering carrier or conference of its intention to use such a rate prior 
to tendering any shipments under such an arrangement. Notice may be 
accomplished by any effective method deemed appropriate by the offering 
carrier or conference and set forth in Tariff Rule 26, and cross-linked 
in the commodity record and/or TLI Notes.
    (ii) Open rates in foreign commerce. An open rate in foreign 
commerce means a rate on a specified commodity or commodities over which 
a conference relinquishes or suspends its ratemaking authority, in whole 
or in part, thereby permitting each individual ocean common carrier 
member of the conference to fix its own rates on such commodity or 
commodities. See Sec. 514.15(b)(15).
    (A) In the conference tariff, where all TLIs for a given commodity 
description are opened, the description and commodity index under 
paragraph (a) of this section shall include the appropriate notation, 
i.e., the word ``OPEN.'' Where a conference opens a rate at the TLI 
level, the TLI shall show the rate as ``0.00'' and the TLI Note shall 
contain the appropriate ``OPEN'' notation. Both commodity description 
and TLI Note of ``opened'' rates (where applicable) shall refer to 
Tariff Rule 15 (Sec. 514.15(b)(15)) which shall clearly define the word 
``open,'' as used in the tariff, and indicate where the rates of the 
individual conference member lines on such items may be found.
    (B) Where a conference opens rates pursuant to paragraph 
(b)(19)(ii)(A) of this section, an individual conference member may not 
charge rates on the open item unless and until the individual member 
files a proper tariff rate covering such item, as required by this part. 
This may be accomplished by the individual common carrier member (or its 
tariff agent) filing a complete tariff pursuant to this part, or by the 
conference (or its tariff agent) filing in a separate tariff for open 
rates or in the regular conference tariff each member's rates on the 
opened items, indicating the rates which will be charged by each 
individual common carrier and the governing Tariff Rules and provisions 
of the conference tariff applicable

[[Page 196]]

to each common carrier. When conference members publish their open rates 
in a separate tariff, such tariffs shall identify the conference tariff 
in which the open-rated condition is reflected.
    (C) Controlled common carriers filing open rates are subject to the 
30-day controlled common carrier notice requirement of 
Sec. 514.4(c)(1)(iii), except when special permission is granted by the 
Commission under Sec. 514.18.
    (D) Notwithstanding paragraph (b)(19)(ii)(C) of this section, a 
conference may, on less than 30 days' notice, file reduced rates on 
behalf of controlled common carrier members for open-rated commodities:
    (1) At or above the minimum level set by the conference; or
    (2) At or above the level set by a member of the conference that has 
not been determined by the Commission to be a controlled common carrier 
subject to section 9 of the 1984 Act, in the trade involved.
    (iii) Independent-action rates in foreign commerce. Each conference 
agreement must provide that any member of the conference may take 
independent action on any rate or service item required to be filed in a 
tariff under section 8(a) of the 1984 Act upon not more than 10 calendar 
days' notice to the conference and that the conference will include the 
new rate or service item in its tariff for use by that member, effective 
not later than 10 calendar days after receipt of the notice, and by any 
other member that notifies the conference that it elects to adopt the 
independent rate or service item on or after its effective date, in lieu 
of the existing conference tariff provision for that rate or service 
item. For controlled common carriers, see Secs. 514.4(d)(4)(iii) and 
514.9(b)(11).
    (20) Service. Under the DED codes, the example indicates that the 
service will be ``PH--Pier/House.''
    (21) (Carrier.) In a conference tariff, the ``Carrier'' field is 
filled in with the SCAC code (under Sec. 514.11(a)(6)) of the carrier, 
when the TLI is an independent action or open rate of a carrier member 
of a conference (not applicable in illustration). If not filled in, the 
field does not appear on the screen. See paragraph (b)(19) of this 
section.
    (22) Packaging code. Under the DED, the illustration's packaging 
code is ``CRT'' (Crate). See paragraph (b)(2)(ii) of this section.
    (23) Ctr size. The example container size is 40-foot, using the DED 
code.
    (24) Stow code. Under the DED, the illustration's stow code is 
``BS'' (Bottom Stowage.)
    (25) Ctr type. Under the DED codes, the example indicates that the 
container type to be ``PC'' (Dry).
    (26) Stat code. The statistic code is a numeric field which is 
provided for convenience to the tariff owner for statistical purposes. 
The field can handle up to 20 digits. If not filled in, the field does 
not appear on the screen.
    (27) Ctr temperature. Under the DED code, the illustration's 
container temperature requirement is ``NA'' (Not Applicable.)
    (28) TLI notes. The TLI notes contain facts or circumstances which 
pertain to the particular rate. Additional rates, conditions which 
directly affect the rate, or assessorial charges may not be contained in 
the TLI notes, but shall be entered in the appropriate place, such as in 
the ``Applicable Assessorial Charges'' under paragraph (b)(29) of this 
section, or in inland rate tables under Sec. 514.15(b)(1).
    (29) Assessorial charges. Any matter directly affecting the rate, 
such as assessorial charges, shall be entered in the Assessorial Charges 
field, as described in Sec. 514.10(d). The illustration shows a (Paris) 
surcharge and two assessorials found in and linked to Tariff Rules.
    (30) Haz code. The Hazard code in the example is ``NHZ'' for ``non-
hazardous.''
    (c) TLI calculation. ATFI's calculation feature adds potentially 
applicable assessorials in algorithm form and these and inland rate 
charges are added to the basic ocean freight to compute the bottom line 
(total) freight. For a TLI calculation, as with most other ATFI operator 
functions, the ATFI user manual (Sec. 514.8(b)) is almost indispensable. 
The basic steps for the calculation are:
    (1) Retrieve a TLI, such as the example in paragraph (b) of this 
section.
    (2) Exercise the ``Calc'' option and an ``ATFI RATE CALCULATION'' 
screen

[[Page 197]]

appears. It is very similar to the ATFI TARIFF LINE ITEM DETAIL screen 
in paragraph (b) of this section, except that the retrieving operator 
enters the actual shipment data in the appropriate fields. Once these 
data are entered and verified, the operator presses another ``Calc'' key 
and screens similar to the following simulated screens (``ATFI RATING 
RESULTS,'' (i) and (ii)) are used to show the ``Total Freight'' 
(``bottom-line freight''):
[GRAPHIC] [TIFF OMITTED] TC03MR91.040

    (3) The bottom-line rate calculation facilitates estimation of the 
total charges for the shipment. However, ``Total Freight'' may not 
always be the freight paid by the shipper because of operator error or 
the application of other assessorial charges which were not in algorithm 
form because they could not be determined prior to shipment, e.g., 
detention charges. Such non-predeterminable charges, however, would be 
flagged for the retriever as potential charges through the dummy 
algorithm feature under Sec. 514.10(d)(1)(iv).
    (4) For the basic ocean freight rate and each item that may be added 
to it to find the overall cost, a proof screen may be used for 
verification after the calculation.



Sec. 514.14  [Reserved]



Sec. 514.15  Tariff Rules.

    (a) General. (1) This section requires the electronic filing of 
certain tariff matter other than the major ATFI objects (TLIs, etc.) 
addressed elsewhere in this part, which in any way affects the 
application of the tariff or is related to tariff objects, as prescribed 
in this part. Matter required to be filed by this section shall be 
contained in the ATFI tariff, either:
    (i) In mandatorily numbered and titled Tariff Rules under paragraph 
(b) of this section; or
    (ii) Where the listed mandatory subjects of Tariff Rules would not 
include a specific proposed rule or other tariff matter of the filer, in 
optional Tariff

[[Page 198]]

Rules under paragraph (c) of this section, with the filer selecting the 
number (beginning with number 100) and title.
    (2) Algorithms and text. (i) Where the Tariff Rule directly affects 
a commodity or TLI, e.g., by the addition of a surcharge for certain 
conditions, the assessorial charge calculation/condition statement (and 
assessorial table, where applicable) shall be set forth in the Tariff 
Rule as an algorithm if determinable prior to shipment. This algorithm 
shall be electronically linked to each tariff item to which it applies, 
as described in Sec. 514.10(d) and in the ATFI Batch Filing Guide and 
ATFI Tariff Filing Guide.
    (ii) Contents of Tariff Rules other than algorithms shall be entered 
in full-text format, be clear, explicit and complete, and be linked to 
appropriate items through the dummy algorithm functionality described in 
Sec. 514.10(d)(1)(iv).
    (3) Application of rule. Where a Tariff Rule affects only particular 
items, each affected item, e.g., commodity description, TLI, etc., shall 
specifically refer and be linked to such rule, as described in the ATFI 
Batch Filing and ATFI Tariff Filing Guides.
    (4) Subrules. Where the subject or title of a Tariff Rule permits, 
obviously-related subrules may be used.
    (5) Rules tariffs. Tariff Rules may also be contained in separate 
tariffs, as described in Sec. 514.12.
    (6) Rule Access Window. ATFI's Rule Access Window lists by Tariff 
Rule number and title all of the Tariff Rules contained in a particular 
tariff.
    (b) Mandatory Tariff Rules. Specific Tariff Rules affecting the 
tariff, and/or other materials required by this part to be included in 
Tariff Rules, shall be contained in the appropriate Tariff Rules, as 
designated by the numbers and titles specified in this paragraph. Where 
notes to commodity descriptions and/or TLIs contain matter that would 
otherwise be normally contained in Tariff Rules, the applicable Tariff 
Rule(s) need not duplicate such matter but may simply indicate that the 
tariff is structured in this manner. In the event that a particular 
title contained in this paragraph does not apply to any matter affecting 
the tariff, the rule number and title shall be entered with a statement 
that the rule is not applicable (``N/A''). See Sec. 514.12(a)(i). Tariff 
matter obviously falling within a particular title may not be contained 
in another, less descriptive title and, where a mandatory subject under 
this paragraph is not applicable, the tariff matter shall be filed in an 
optional rule under paragraph (c) of this section, with the appropriate 
title. Mandatory Tariff Rule (and subparagraph) numbers, titles, content 
(as also may be required by other sections of this part, cross 
referenced in this paragraph) are as follows:
    (1) Scope. As described in Sec. 514.11(b)(10), the Tariff Record's 
scope is briefly set forth in location and/or location group pairs for 
origin and destination. Tariff Rule 1 shall be consistent with the 
Tariff Record scope, but describe it in complete detail, especially for 
the following types of tariffs or tariff items:
    (i) Foreign and domestic (offshore) commodity tariffs.
    (ii) Equipment interchange tariffs under Sec. 514.12(b)(3)(ii).
    (iii) Intermodal services.
    (A) Tariff Rule 1 shall describe the modes of intermodal service 
provided (e.g., rail, truck, etc.).
    (B) Tariff Rule 1 shall indicate whether the tariff TLIs are 
``through rates,'' which include the rates for all services on the 
overall route, are combination rates to which rate(s) for other 
transportation must be added, or both.
    (C) Common carriers and conferences which publish more than one 
intermodal rate tariff from, to or between the same points, ports or 
regions, based on mode of service, description of commodities, etc., 
shall provide in Tariff Rule 1 of each respective tariff a cross-
reference to the FMC number and description of the application of such 
other tariff(s).
    (D) Tariff Rule 1 shall include a description of any alternate port 
service, or other substituted service, intended to be offered. If this 
service falls within the definition of ``transshipment,'' Tariff Rule 1 
shall cross-reference Tariff Rule 13, where transshipment services are 
described.

[[Page 199]]

    (E) TLIs involving intermodal service shall include an appropriate 
statement to this effect in the applicable commodity description 
record(s) and/or TLI notes under Sec. 514.13, but all rates and charges 
affecting the TLI shall be entered in the proper form in the Applicable 
Assessorial Charges section and/or inland rate tables.
    (F) If a carrier or conference desires to provide intermodal 
transportation to or from named points at combination rates, it shall 
clearly and accurately set forth the applicable charges in the ATFI 
``Inland Rate Tables'' file. Other tables, similar to inland rate tables 
in that they result in the addition of amounts to TLIs, such as 
surcharges (assessorials), may be constructed in algorithm format under 
Sec. 514.10(d) and paragraph (a) of this section. The ATFI ``Batch 
Filing Guide'' and the ATFI Tariff Filing Guide provide details on the 
data creation and filing requirements for inland rate tables, as well as 
for Tariff Rules' tables.
    (2) Application of rates and charges. Tariff Rule 2 shall contain a 
clear and definite statement of:
    (i) All services provided to the shipper and covered by the TLIs, 
including the rate bases set forth in Secs. 514.13(b)(17)(ii) and 
(b)(17)(iv)(A); and
    (ii) The extent of any limitation or restriction, if the application 
of any of the rates, charges, Tariff Rules or regulations stated in the 
tariff is restricted to any particular port, pier, etc.
    (3) Rate applicability rule. Tariff Rule 3 shall contain a clear and 
definite statement of the time at which tariff changes become applicable 
to any particular shipment, including the following:
    (i) In foreign commerce, the tariff rates, Tariff Rules and charges 
applicable to a given shipment must be those published and in effect on 
the date the cargo is received by the common carrier or its agent 
(including originating carriers in the case of rates for through 
transportation).
    (ii) In domestic offshore commerce, for joint rates in intermodal 
transportation, the rate applicable to any particular cargo movement 
shall be that rate which is in effect on the day the initiating carrier 
takes possession of the shipment.
    (4) Heavy lift. Tariff Rule 4 shall contain a clear and definite 
statement of all heavy lift practices and charges.
    (5) Extra length. Tariff Rule 5 shall contain a clear and definite 
statement of all extra length practices and charges.
    (6) Minimum bill of lading charges. Tariff Rule 6 shall contain a 
clear and definite statement of minimum bill of lading charges and 
applicability.
    (7) Payment of freight charges. Tariff Rule 7 shall contain a clear 
and definite statement of:
    (i) All requirements for the payment of freight charges;
    (ii) Currency restrictions, if any, and the basis for determining 
the rates of currency exchange (see Sec. 514.10(c)); and
    (iii) If credit is extended to shippers, the credit terms available 
and the conditions upon which credit is extended. In foreign commerce, 
when credit applications or agreements are required, specimens of such 
applications or agreements shall be filed as part of this Tariff Rule.
    (8) Bill(s) of lading. Unless a governing bill of lading tariff has 
been filed under Sec. 514.12(a)(1)(iv), Tariff Rule 8 shall contain all 
clauses of every applicable specimen copy of any bill of lading, 
contract of affreightment, and other document (except for a service 
contract and its essential terms under Secs. 514.7 and 514.17) 
evidencing the transportation agreement between carrier and shipper. 
Such shipping contracts shall indicate that they are subject to the 
terms and conditions of the carrier's Federal Maritime Commission 
tariffs and may not contain provisions inconsistent with the Tariff 
Rules and regulations published in any applicable tariff.
    (9) Freight forwarder compensation. Tariff Rule 9 shall contain a 
clear and definite statement of:
    (i) In foreign commerce, the rate or rates of compensation to be 
paid to licensed ocean freight forwarders on United States export 
shipments in accordance with Sec. 510.23(b) of this chapter.
    (ii) In domestic offshore commerce, the exact rate or rates, if any, 
to be paid ocean freight forwarders (see also Sec. 510.23(d) of this 
chapter).

[[Page 200]]

    (10) Surcharges and arbitraries. Tariff Rule 10 shall contain 
algorithms and explanatory text of surcharges and arbitraries for items 
not elsewhere provided for in this section. Rates from or to designated 
ports may be established by applying an arbitrary or differential charge 
based upon the rate applicable to a specified ``base port,'' provided 
that any such arbitrary or differential is clearly defined, set forth as 
an algorithm (with table, if necessary) and is referenced (linked) in 
the commodity description or TLI affected.
    (11) Minimum quantity rates. See also Sec. 514.13(a)(2)(i)(C). 
Tariff Rule 11 shall state:
    (i) For foreign commerce:

    When two or more TLIs are named for the same commodity over the same 
route and under similar conditions, and the application is dependent 
upon the quantity of the commodity shipped, the total freight charges 
assessed against the shipment may not exceed the total charges computed 
for a larger quantity, if the TLI specifying a required minimum quantity 
(either weight or measurement per container or in containers), will be 
applicable to the contents of the container(s), and if the minimum set 
forth is met or exceeded. At the shipper's option, a quantity less than 
the minimum level may be freighted at the lower TLI if the weight or 
measurement declared for rating purposes is increased to the minimum 
level.

    (ii) For domestic offshore commerce:

    When two or more TLIs are named for the same commodity, and the 
application is dependent upon the quantity of the commodity shipped, the 
charges assessed against the smaller shipment may not exceed those for 
any larger quantity.

    (12) Ad Valorem Rates. Tariff Rule 12 shall contain a clear and 
definite statement of:
    (i) The method of computing an ad valorem TLI or charge, to the 
extent not included elsewhere in the tariff (e.g., in connection with a 
TLI under Sec. 514.13(b)(17)(i)); and
    (ii) The additional liability, if any, assumed by the tariff owner 
in consideration for the ad valorem rate or charge.
    (13) Transshipment. When transshipment services are offered pursuant 
to an ongoing agreement, Tariff Rule 13 shall contain:
    (i) The through rate;
    (ii) The routings (origin, transshipment and destination ports); 
additional charges, if any (e.g., port arbitrary and/or additional 
transshipment charges); and participating carriers; and
    (iii) A provision substantially as follows:

    The Tariff Rules, regulations and rates in this tariff apply to all 
transshipment arrangements between the publishing carrier or carriers 
and the participating connecting or feeder carrier. Every participating 
connecting or feeder carrier, which is a party to transshipment 
arrangements, has agreed to observe the Tariff Rules, regulations, 
rates, and routings established herein as evidenced by a connecting 
carrier agreement between the parties.

    (14) Co-Loading in foreign commerce. Tariff Rule 14 governs co-
loading by NVOCCs in foreign commerce and shall contain the following 
provisions:
    (i) Filing requirements. (A) If an NVOCC does not tender cargo for 
co-loading, Tariff Rule 14 shall so indicate.
    (B) If two or more NVOCCs enter into an agreement which establishes 
a carrier-to-carrier relationship for the co-loading of cargo, then the 
existence of such agreement shall be noted in Tariff Rule 14.
    (C) If two NVOCCs enter into a co-loading arrangement which results 
in a shipper-to-carrier relationship, the tendering NVOCC shall describe 
in Tariff Rule 14 its co-loading practices and specify its 
responsibility to pay any charges for the transportation of the cargo. A 
shipper-to-carrier relationship shall be presumed to exist where the 
receiving NVOCC issues a bill of lading to the tendering NVOCC for 
carriage of the co-loaded cargo.
    (ii) Documentation requirements. NVOCCs which tender cargo to 
another NVOCC for co-loading, whether under a shipper-to-carrier or 
carrier-to-carrier relationship, shall annotate each applicable bill of 
lading with the identity of any other NVOCC to which the shipment has 
been tendered for co-loading. Such annotation shall be shown on the face 
of the bill of lading in a clear and legible manner.
    (iii) Co-loading rates. No NVOCC may offer special co-loading rates 
for the exclusive use of other NVOCCs. If cargo

[[Page 201]]

is accepted by an NVOCC from another NVOCC which tenders that cargo in 
the capacity of a shipper, it must be rated and carried under tariff 
provisions which are available to all shippers.
    (15) Open rates in foreign commerce. Tariff Rule 15 of a conference 
tariff shall contain a clear and definite statement of:
    (i) The meaning of the word ``open'' in ``open rates,'' and the 
extent to which conference rates have been opened pursuant to 
Sec. 514.13(b)(19)(ii);
    (ii) Any restriction or limitation on the right of participating 
common carriers to fix their own rate items, and the extent to which 
applicable Tariff Rules and regulations of the conference tariff will 
continue to govern the rates filed by each individual line; and
    (iii) Where the rates of the individual conference member lines on 
open-rated items may be found.
    (16) Hazardous cargo. When TLIs for explosive, inflammable, 
corrosive, or other dangerous materials are published (or Tariff Rule 16 
does not specifically prohibit carriage of such materials), Tariff Rule 
16 shall contain either:
    (i) Tariff Rules governing the carriage of all types of hazardous 
cargo; or
    (ii) Reference to applicable governing and/or general reference 
tariffs, as described in Sec. 514.12.
    (17) Green salted hides in foreign commerce. For foreign commerce, 
Tariff Rule 17 shall require that:
    (i) The shipping weight for purposes of assessing transportation 
charges on green salted hides shall be either a scale weight or a scale 
weight minus a deduction which amount and method of computation are 
specified in the commodity description record or TLI, as referenced by 
Sec. 514.13(b)(17)(iii); and
    (ii) The shipper furnish the common carrier a weighing certificate 
or dock receipt from an inland common carrier for each shipment of green 
salted hides at or before the time the shipment is tendered for ocean 
shipment.
    (18) Returned cargo in foreign commerce. Where the tariff owner 
offers the return shipment of refused, damaged or rejected shipments, or 
exhibits at trade fairs, shows or expositions, to port of origin at the 
TLI assessed on the original movement, when such TLI is lower than the 
prevailing TLI, Tariff Rule 18 shall provide that:
    (i) The return of shipment(s) be accomplished within a specific 
period not to exceed one year;
    (ii) The return movement be made over the line of the same common 
carrier performing the original movement, except that in the case of a 
conference tariff, return may be made by any member line when the 
original shipment was carried by a conference member under the 
conference tariff; and
    (iii) A copy of the original bill of lading showing the rate 
assessed be surrendered to the return common carrier.
    (19) Shippers requests in foreign commerce. Tariff Rule 19 shall 
contain clear and complete instructions in accordance with the effective 
agreement's provisions, stating where and by what method shippers may 
file their requests and complaints and how they may engage in 
consultation under section 5(b)(6) of the 1984 Act, together with a 
sample of the rate request form if one is used or, in lieu thereof, a 
description of the information necessary for processing the request or 
complaint.
    (20) Overcharge claims. Tariff Rule 20 shall contain provisions that 
conform to the following:
    (i) No tariff may limit the filing of overcharge claims with a 
common carrier for private settlement to a period (beginning with the 
accrual of the cause of action) ending in less than:
    (A) Three years in foreign commerce; or
    (B) Two years in domestic offshore commerce.
    (ii) The acceptance of any overcharge claim may not be conditioned 
upon the payment of a fee or charge.
    (iii) No tariff may require that overcharge claims based on alleged 
errors in weight, measurement or description of cargo be filed before 
the cargo has left the custody of the common carrier.
    (iv) Tariff Rule 20 shall also:
    (A) Provide that shippers or consignees may file claims for the 
refund of freight overcharges resulting from errors in weight, 
measurement, cargo description or tariff application; and
    (B) Clearly indicate where and by what method such claims are to be 
filed with the common carrier and that

[[Page 202]]

such claims may also be filed with the Federal Maritime Commission. At a 
minimum, Tariff Rule 20 shall contain the following provisions:

    (1) Claims for freight rate adjustments filed in writing will be 
acknowledged by the common carrier within 20 days of receipt by written 
notice to the claimant of the tariff provisions actually applied and the 
claimant's rights under the 1916 Act or 1984 Act.
    (2) Claims seeking the refund of freight overcharges may be filed in 
the form of a complaint with the Federal Maritime Commission, 
Washington, D.C. 20573, pursuant to either:
    (i) Section 11(g) of the Shipping Act of 1984 (46 U.S.C. app. 1710) 
for foreign commerce, and that such claims must be filed within three 
years of the date the cause of action accrued; or
    (ii) Section 22 of the Shipping Act, 1916 (46 U.S.C. app. 821) for 
domestic offshore commerce, and that such claims must be filed within 
two years of the date the cause of action accrues.

    (21) Use of carrier equipment. Tariff Rule 21 shall contain 
provisions conforming to the following regulations:
    (i) If a carrier or conference provides equipment to shippers, 
consignees, or inland carriers, or other persons acting as the agent for 
the person paying the freight charges:
    (A) A sample equipment interchange agreement, or the terms and 
conditions governing the use of said equipment, shall be published in 
the carrier's or conference's Tariff Rule 21. The sample agreement shall 
include: the general terms and conditions affecting cost (e.g., 
maintenance and repair requirements, insurance obligations, pickup or 
drop off charges and services, such as tracing and replenishing fuel or 
refrigerant for reefer containers), that govern the use of carrier-
provided equipment, including cargo containers, trailers and chassis. It 
shall also include the standard free time allowed and detention or 
similar charges assessed. Standard free time and charges shall be 
included as the last item in the agreement or Tariff Rule 21, as 
applicable, and shall clearly identify the location and type of 
equipment to which they apply.
    (B) If a carrier or conference does not have a sample equipment 
interchange agreement, the carrier shall publish its terms and 
conditions and standard free time and charges in its Tariff Rule 21, as 
described in paragraph (b)(21)(i)(A) of this section. In foreign 
commerce, where a foreign government prohibits the use of a carrier or 
conference equipment interchange agreement, Tariff Rule 21 shall contain 
a statement to that effect.
    (ii) If a carrier or conference has exceptions to the standard free 
time and charges, or changes in the terms and conditions which result in 
changing the free days and/or charges, the party (inland carrier, 
consignee, or shipper) to which the exception applies, location, type of 
equipment and free days and charges shall be clearly identified for each 
exception. The exceptions shall be arranged in alphabetical order of the 
parties to which the exceptions apply and shall be included in either:
    (A) Tariff Rule 21; or
    (B) A separate equipment interchange tariff filed by the carrier or 
conference in accordance with Sec. 514.12(b)(3), in which case Tariff 
Rule 21 shall identify the separate equipment interchange tariff 
containing the exceptions. A carrier or conference is not precluded from 
publishing a separate equipment interchange tariff even though it does 
not have exceptions to the standard free days and charges.
    (22) Automobile Rates in domestic offshore commerce. If TLIs for 
automobiles are published on a volume basis, as described in 
Sec. 514.13(b)(17)(iv)(B)(1), introductory paragraph, Tariff Rule 22 
shall contain:
    (i) The cubic measurement for the five most recent model years 
prescribed by the manufacturer of each applicable particular make or 
model, arranged in table form with reference to applicable TLIs; and
    (ii) A clear and definite description of all other applicable 
regulations, if not contained in the commodity description record(s).
    (23) Carrier terminal rules and charges. Tariff Rule 23 of carrier 
and conference tariffs:
    (i) Shall state separately every terminal or other charge and 
discount and service (including privileges, facilities and services) 
under the control of the common carrier or conference which is granted 
or allowed to any shipper, consignee, or passenger, regardless of 
whether the service results in a charge

[[Page 203]]

or discount separately assessed as an addition to or subtraction from 
the carrier's basic TLI, in which case it shall be set forth as an 
algorithm, or is simply included within the basic TLI, without 
differentiation;
    (ii)  [Reserved]
    (iii) May provide for an amendment, effective upon filing:
    (A) Increasing a charge for terminal services, canal tolls or 
additional items, without the increase being separately stated on the 
bill of lading, but only if such charge is not under the control of the 
filing common carrier or conference, which merely acts as a collection 
agent for the charge, and the agency making such charge to the common 
carrier or conference increases the charge without notice to the common 
carrier or conference and is identified in Tariff Rule 23 by name and 
appropriate tariff number (see Sec. 514.9(b)(20)); and
    (B) For domestic offshore commerce, establishing additional terminal 
facilities for loading or discharging cargo at ports or harbors already 
served, but only if the rates to be charged at such facilities are the 
same as those currently applicable to comparable facilities of the 
carrier at the same port or harbor (see Sec. 514.9(b)(16)(i)(B)).
    (24) Financial responsibility for NVOCCs in foreign commerce and 
legal agent for service of process. (i) Every non-vessel-operating 
common carrier (``NVOCC'') shall state in Tariff Rule 24 of its tariffs 
on file with the Federal Maritime Commission that it has furnished the 
Commission proof of financial responsibility in the manner and amount 
required by 46 CFR 583.4 for the payment of any judgment for damages 
arising from its transportation-related activities under the Shipping 
Act of 1984, order for reparations issued pursuant to section 11 of the 
Shipping Act of 1984, or penalty assessed pursuant to section 13 of the 
Shipping Act of 1984. In Tariff Rule 24, the NVOCC shall state the 
manner of its financial responsibility; whether it is relying in whole 
or in part on coverage provided by a group or association of NVOCCs to 
which it is a member; the name(s) and address(es) of the surety 
company(ies), insurance company(ies) or guarantor(s) issuing the 
bond(s), insurance policy(ies) or guaranty(ies); the bond(s), insurance 
policy(ies) or guaranty(ies) number(s); and, where applicable, the name 
and address of the group or association of NVOCCs providing full or 
partial coverage.
    (ii) Every NVOCC in foreign commerce which is not domiciled in the 
United States shall enter in the first address field provided in each of 
its Tariff Records under 46 CFR 514.11(b)(8)(ii) the name and address of 
a person in the United States designated under Sec. 583.5 of this 
chapter as its legal agent for the service of judicial and 
administrative process, including subpoenas. Every NVOCC using a group 
or association of NVOCCs not domiciled in the United States for 
financial coverage, in whole or in part, pursuant to Sec. 583.4 shall 
state in its tariff the name and address of the group or association's 
resident agent for service of judicial and administrative process, 
including subpoenas. The NVOCC also shall state in Tariff Rule 24 that, 
in any instance in which the designated legal agent(s) cannot be served 
because of death, disability or unavailability, the Secretary, Federal 
Maritime Commission will be deemed to be the NVOCC's legal agent for 
service of process.
    (iii) Service of administrative process, other than subpenas, may be 
effected upon the legal agent by mailing a copy of the documents to be 
served by certified or registered mail, return receipt requested.
    (25) Certification of shipper status in foreign commerce. If a 
common carrier adopts a procedure other than those set forth in 
Sec. 583.7 (b)(1) or (b)(2) of this chapter, for determining whether 
NVOCCs for whom it wishes to transport cargo have complied with the 
tariff and bonding requirements of sections 8 and 23 of the 1984 Act, 
that procedure shall be clearly set forth in Tariff Rule 25 of its 
tariff.
    (26) Time/volume rates in foreign commerce. In connection with time/
volume rates offered under Sec. 514.13(b)(19)(i), Tariff Rule 26 of 
common carrier and conference tariffs in foreign commerce shall clearly 
and accurately:
    (i) State all charges, classifications, rules and practices 
concerning time/volume rates;

[[Page 204]]

    (ii) Identify the shipment records which will be maintained to 
support the rates;
    (iii) Describe the method to be used for shippers giving notice of 
their intention to use a time/volume rate prior to tendering any 
shipment under the time/volume-rate arrangements; and
    (iv) State that:
    (A) Once a time/volume rate is accepted by one shipper, it shall 
remain in effect for the time specified, without amendment; and
    (B) Shipper notices and shipment records supporting a time/volume 
rate will be maintained by any offering carrier or conference for at 
least five years after any shipper's use of a time/volume rate has 
ended.
    (27) Loyalty contracts in foreign commerce. Where the filer intends 
to use a loyalty contract in foreign commerce:
    (i) Tariff Rule 27 shall contain a sample of every loyalty contract, 
as defined in 46 CFR 514.2, together with regulations which set forth 
the scope and application of the contract system.
    (ii) The use of any sample loyalty contract and applicable 
regulations filed for inclusion in a tariff under paragraph (b)(27) of 
this section shall be presumed to be ``in conformity with the antitrust 
laws,'' within the meaning of section 10(b)(9) of the 1984 Act, if such 
contract makes reference to a Business Review Letter, issued pursuant to 
28 CFR 50.6, indicating no objection to the use of that contract.
    (28) Definitions. Tariff Rule 28 shall include any filer definitions 
of technical terms which, however, may not be inconsistent with the 1916 
or 1984 Acts or this part.
    (29) Symbols. Tariff Rule 29 shall include any filer symbols, 
service codes, etc. and explanations therefor which, however, may not be 
inconsistent with the those set forth in this part or the ``Batch Filing 
Guide.''
    (30) Access to tariff information. Tariff Rule 30 shall contain a 
clear and complete description of all costs, conditions and arrangements 
for public inspection of tariff material, including reasonable 
provisions for access to emergency tariff(s) under Secs. 514.8(k)(1)(iv) 
and (k)(1)(v).
    (31) Seasonal discontinuance. (i) Tariff Rule 31 shall contain 
announcements of seasonal discontinuance or restoration of service, 
which shall be filed on not less than ten days' notice, except by 
special permission under Sec. 514.18. Such announcements shall contain a 
brief statement announcing the date of discontinuance and/or restoration 
of service and may include no other tariff matter. The TLIs associated 
with service discontinuance or restoration shall be amended, expired or 
filed as applicable, and shall meet all criteria for TLI filings/
amendments.
    (ii) Tariff Rule 31 of tariffs naming rates, fares or Tariff Rules 
applicable to all water routes which are closed to navigation during 
part of a year shall:
    (A) Contain provisions governing the handling of shipments which may 
arrive at the publishing carrier's facilities after the date service is 
discontinued; and
    (B) Expressly provide for the seasonal discontinuance provision's 
own expiration at the close of the navigation season, or include a rule 
providing for the discontinuance/restoration of service based on the 
stated navigation season.
    (32)  [Reserved]
    (33) Project rates. Tariff Rule 33 shall contain complete 
descriptions of all project rates which are stated discounts of other 
TLI's for given commodities under Sec. 514.13(a)(5)(ii). For domestic 
offshore carriers, Tariff Rule 33 shall also include a statement that 
all project rates will cover the carrier's variable costs and contribute 
to its fixed expenses.
    (34) Terminal Tariffs. Tariff Rule 34 shall contain the full-text 
portions of all terminal tariffs filed by marine terminal operators 
(excluding the Organization Record and Tariff Record, which must be 
established under Sec. 514.11). Other, mandatory Tariff Rules under this 
section which are designed for carriers and conferences shall be 
designated ``Not Applicable'' or ``NA.'' For logical divisions within 
the terminal tariff, filers should use subrules, as described in 
paragraph (a)(4) of this section.
    (c) Optional Tariff Rules. Tariff Rules numbers 100 and up (to be 
numbered

[[Page 205]]

consecutively) are available for carrier/conference use.

[57 FR 36271, Aug. 12, 1992, as amended at 58 FR 28, Jan. 4, 1993; 58 FR 
5622, Jan. 22, 1993; 58 FR 28790, May 17, 1993; 60 FR 27230, May 23, 
1995]



Sec. 514.16  [Reserved]



Sec. 514.17  Essential terms of service contracts in foreign commerce.

    (a) General. (1) A concise statement of the essential terms (ETs) of 
every initial service contract (which is filed in paper form under 
Sec. 514.7) and appropriate amendments to ETs resulting from any 
amendment of the filed service contract, shall be filed with the 
Commission by authorized persons (see Sec. 514.4(d)(5)) and made 
available to the general public in electronic tariff format. Unlike most 
other tariff data, ETs shall be filed largely in full text, with a 
minimum of database formatting (but with certain other standardization), 
as set forth in this section. Additionally, ETs are not subject to the 
algorithm or linkage requirements of Sec. 514.10(d). Filing and 
maintenance of ETs are accomplished through an electronic essential 
terms publication (ETP) for each carrier or conference filer, which 
contains ETs for each of the carrier's or conference's service 
contracts.
    (2) Cross-references--(i) Authority to file: Sec. 514.4(d)(5).
    (ii) Cancellation: Sec. 514.4(e)(2).
    (iii) Availability of essential terms: Sec. 514.7(f).
    (iv) Rejection of service contracts and/or essential terms: 
Sec. 514.7(j).
    (v) Modification, correction and cancellation: Sec. 514.7(k).
    (vi) Assessorials and algorithms: Sec. 514.10(d)(1).
    (b) Essential terms publication--(1) Creation and form. The ETP is 
created and maintained by the filer as a separate tariff type (``ET'' 
for ``ETP'') with a tariff record and number (see Sec. 514.11(b)). A 
service-contract filer, either carrier or conference, may have only one 
ETP for all its ETs. The ETP may also contain matter of general 
applicability to all ETs contained therein, such as Tariff Rules. The 
ATFI system will coordinate development of ET search indexes by, for 
example: ET, service contract or FMC file number; by commodity name or 
number; by TLI number; and, by origin or destination of the commodity.
    (2) Reference to/in tariffs of general applicability. The ETP shall:
    (i) Contain reference to each carrier's or conference's tariff of 
general applicability; and
    (ii) Be referenced in each of the carrier's or conference's tariffs 
of general applicability, where required to be filed under this part.
    (c) Statement(s) of essential terms; general requirements. (1) 
Essential terms shall be promptly filed by the appropriate person, in 
the carrier's or conference's ETP and in the content and tariff format 
as provided by this part. (The service contract, in paper form, is 
required to be filed within ten (10) days of the electronic filing of 
the essential terms under Sec. 514.7(g).)
    (2) Essential terms may not:
    (i) Be uncertain, vague or ambiguous; or
    (ii) Contain any provision permitting modification by the parties 
other than in full compliance with this part.
    (d) Essential terms; specific requirements--(1) ATFI sample screen 
illustration. The following ATFI simulated screen illustrates the 
elements required to be contained in essential terms filings and how 
they may appear in the ATFI system. The references in brackets in each 
line are to the subparagraphs of this paragraph which explain the 
requirements for the fields and the data contained therein. See 
paragraph (b)(1) of this section for provisions regarding the essential 
terms publication. On the screen, data above the double line, i.e., down 
through ``Contract Termination,'' shall be entered in database format in 
the special fields provided; data beginning with Mandatory Term No. 3 
(``Commodities'') shall be entered in ``full-text'' format without the 
application of algorithms under Sec. 514.10(d). However, the mandatory 
ETs (Nos. 1 to 10) shall bear the appropriate term number and exact 
mandatory term title, as set forth in this paragraph (and the screen). 
If the mandatory term does not apply (e.g., No. 7 or No. 8), the filer 
shall also enter the symbol ``NA.''

[[Page 206]]



                                [Sec.  514.17(d)(1)] ATFI Essential Terms Search
                                           JKL Line Essential Terms Publication (XYZ    [1]
                                            004).
ET Num: 681..............................  Personal Computers from Taiwan.............  [2]
SC Num: 765..............................  Amendment Num: 3--Available until: 31 Jan    [3]
                                            1992.
FMC File Num: 123456.....................  Contract Effective: 01 Dec 1992............  [4]
Amendment Type: C........................  Special Case: 123456--Contract Expiration:   [5]
                                            15 Jan 1993.
Filing Date: 01 Jan 1992.................  Contract Termination: 15 Jan 1993..........  [6]
----------------------------------------------------------------------------------------------------------------


 
     Term         (Amend)    List of essential terms titles    [7]
------------------------------------------------------------------------
1                     (  0)  Origin........................  [i]
2                     (  0)  Destination...................  [ii]
3                     (  0)  Commodities...................  [iii]
4                     (  1)  Minimum Quantity..............  [iv]
4                    A(  0)  Minimum Quantity in 20ft        [A]
                              containers.
4                    B(  3)  Minimum Quantity in 40ft        [B]
                              containers.
5                     (  0)  Service Commitments...........  [v]
6                     (  0)  Contract Rates or Rate          [vi]
                              Schedules(s).
7                     (  2)  Liquidated Damages for Non-     [vii]
                              Performance (if any).
8                     (  0)  Later Events Causing Deviation  [viii]
                              From ET (if any).
9                     (  0)  Duration of the Contract        [ix]
                              (e.g., ``46 days from 01 Dec.
                              1992 to 15 Jan. 1993'').
10                    (  0)  Assessorials..................  [x]
100                   (  0)  (Title and text--Optional)....  [8]
101                   (  0)  (Title and text--Optional)....  [8]
[999 zzz              (999)  Maximum term and amendment      ...........
                              values].
------------------------------------------------------------------------

    (2)(i) ET Num (statement of essential terms number). The ``ET Num'' 
is defined by the filer and shall be entered in the appropriate field. 
See Sec. 514.7(h).
    (ii) ET Heading. The filer's title of the ET document (e.g., 
``Personal Computers from Taiwan'') is entered here and will appear in 
the ETP index to the included ETs.
    (3)(i) SC NUM (service contract number). The ``SC Num'' is defined 
by the filer and shall be entered in the appropriate field. See 
Sec. 514.7(h).
    (ii) Amendment Num. Where feasible, ETs should be amended by 
amending only the affected specific term(s) or subterms, mandatory or 
optional. Each time any part of an ET is amended, the filer shall assign 
a consecutive ET amendment number (up to three digits), beginning with 
the number ``1.'' (The amendment number field must be ``0'' or void for 
the initial ET filing.) Each time any part of the ET is amended, the ET 
``Filing Date'' will be the date of filing of the amendment and the 
``Available Until Date'' will be 30 days from the filing date, but the 
filer can enter a later date, making the availability period longer. See 
correction provisions under Sec. 514.7(k) and paragraph (d)(5)(ii) of 
this section.
    (iii) Available until. The period of availability of the essential 
terms to similarly situated shippers shall be no less than thirty (30) 
days, i.e., from the ``Filing Date'' (paragraph (d)(6)(i) of this 
section and Sec. 514.10(a)(2)) of the initial filing or the latest 
amendment, to the ``Available until'' date (automatically defaulted to 
30 days from the Filing Date by the interactive ATFI system, but the 
filer can enter a later date, making the availability period longer).
    (4)(i) FMC File Num. The FMC File Numbers will be system assigned as 
initial ET filings are received/processed. The FMC File Numbers will be 
assigned sequentially and will start at a number designated by FMC at 
production start. The FMC File Number will be provided to filers in the 
acknowledge message (EMail) for filings so that they can put the number 
in the related service contract when it is filed in paper form. See 
Sec. 514.7(h)(1)(iii)(B). This procedure will facilitate FMC linkage of 
the ET to its related service contract.
    (ii) Contract effective. In addition to the period of availability 
of essential terms to similarly situated shippers, the service contract 
itself must have an effective date and an expiration date (see paragraph 
(d)(5)(iii) of this section and Secs. 514.10 (a)(3) and (a)(4)), 
governing the duration of the contract between the original signatory 
parties. The duration must also be set forth in mandatory essential term 
No. 9, where the duration of the contract shall be stated as a specific 
fixed time period,

[[Page 207]]

with a beginning date (effective date) and an ending date (expiration 
date).
    (5)(i) Amendment type. All ATFI amendment codes under Sec. 514.9, 
except ``G'' and ``S'' (Secs. 514.9(b)(7) and 514.9(b)(19)), may be used 
in any combination, with up to three amendment codes for amendments to 
ETs. No notice period is required for amendments to ETs, except that 
amendments to ETs require a new ``Available until'' date, which must be 
at least 30 days from the filing date. For the amendment code ``S,'' see 
paragraph (d)(5)(ii) of this section.
    (ii) Special Case symbol and number. The ``S'' amendment code (for 
special case under Sec. 514.9(b)(19)(iii)) must be used singly, and in 
conjunction with a validated special case number for corrections to ETs. 
See correction provisions under Sec. 514.7(k).
    (iii) Contract expiration. See paragraph (d)(4)(ii) of this section.
    (6)(i) Filing date. The filing date is automatically set by the 
system whenever an ET or amendment thereto is filed. See ``Available 
until'' in paragraph (d)(3)(iii) of this section.
    (ii) Contract termination date. A statement of essential terms may 
not be canceled until after all of its associated service contracts, 
including any renewal or extension, have expired under the terms of the 
contract, or have been terminated for reasons not specifically set forth 
in the contract. See Secs. 514.4(e)(2) and 514.7(l)(1)(ii). The contract 
termination date would, therefore, be the same as the contract 
expiration date under paragraph (d)(5)(iii) of this section, unless 
terminated sooner, in which case the filer would enter the earlier date 
when the termination event occurred.
    (7) Terms and subterms. Mandatory essential terms Nos. 1 to 10 shall 
address the subjects and bear the terms' titles for the respective 
numbers exactly as provided in this section. If a subject is not 
included, such as No. 7 or No. 8, the number must be listed with the 
appropriate title and the designation ``NA.'' All essential terms, 
mandatory and optional, may be subdivided into subterms (as illustrated 
for mandatory term No. 4) to facilitate retrieval and amendment. The 
mandatory terms are as follows:
    (i) Origin (No. 1). ``Origin'' includes the origin port range(s) in 
the case of port-to-port movements, and the origin geographic area(s) in 
the case of through intermodal movements, except that, in service 
contracts, the origin and destination of cargo moving under the contract 
need not be stated in the form of ``port ranges'' or ``geographic 
areas,'' but shall reflect the actual locations agreed to by the 
contract parties. See Sec. 514.10(b). Origin point and port locations 
will be validated against the ATFI Locations database. The validated 
names will be ``inserted'' by the system in Mandatory Term #1. The 
Mandatory Term may not contain text, but if the filer wishes to use full 
text to clarify or expand on the point/port entries in Term 1, full text 
may be used in subterms.
    (ii) Destination (No. 2). ``Destination'' includes the destination 
port range(s) in the case of port-to-port movements, and the destination 
geographic area(s) in the case of through intermodal movements, except 
that, in service contracts, the origin and destination of cargo moving 
under the contract need not be stated in the form of ``port ranges'' or 
``geographic areas,'' but shall reflect the actual locations agreed to 
by the contract parties. See Sec. 514.10(b). Destination point and port 
locations will be validated against the ATFI Locations database. The 
validated names will be ``inserted'' by the system in Mandatory Term #2. 
The Mandatory Term may not contain text, but if the filer wishes to use 
full text to clarify or expand on the point/port entries in Term 2, full 
text may be used in subterms.
    (iii) Commodities (No. 3). Mandatory term No. 3 shall include 
commodities covered by the service contract, but these commodities may 
not be entered as described in Sec. 514.13(a), i.e., commodities cannot 
be entered in data-element format, but the full-text format may 
incorporate the same elements of information, as desired. See 
Sec. 514.7(c) for exempt commodities. For each commodity filed in this 
term, a separate formatted commodity index entry is required.
    (iv) Minimum quantity (No. 4). Mandatory term No. 4 shall address 
the minimum quantity or volume of cargo and/

[[Page 208]]

or amount of freight revenue necessary to obtain the rate or rate 
schedule(s), except that the minimum quantity of cargo committed by the 
shipper may not be expressed as a fixed percentage of the shipper's 
cargo.
    (A) Subterm. Example: Minimum quantity in 20FT Containers.
    (B) Subterm. Example: Minimum quantity in 40FT Containers.
    (v) Service commitments (No. 5). Mandatory term No. 5 shall address 
the service commitments of the carrier, conference or specific members 
of a conference, such as assured space, transit time, port rotation or 
similar service features.
    (vi) Contract rates or rate schedule(s) (No. 6). Mandatory term No. 
6 shall contain the contract rates or rate schedules, including any 
additional or other charges (i.e., general rate increases, surcharges, 
terminal handling charges, etc.) that apply, and any and all conditions 
and terms of service or operation or concessions which in any way affect 
such rates or charges; except that a contract may not permit the 
contract rate to be changed to meet a rate offer of another carrier or 
conference not published in a tariff or set forth in a service contract 
on file with the Commission.
    (vii) Liquidated damages for non-performance (if any) (No. 7). 
Mandatory term No. 7 shall include liquidated damages for non-
performance. See Sec. 514.7(1).
    (viii) Later events causing deviation from ET (if any) (No. 8). 
Where a contract clause provides that there can be a deviation from an 
original, essential term of a service contract, based upon any stated 
event occurring subsequent to the execution of the contract, mandatory 
term No. 8 shall include a clear and specific description of the event, 
the existence or occurrence of which shall be readily verifiable and 
objectively measurable. See Sec. 514.7(1). This requirement applies to, 
inter alia, the following types of situations:
    (A) Retroactive rate adjustments based upon experienced costs;
    (B) Reductions in the quantity of cargo or amount of revenues 
required under the contract;
    (C) Failure to meet a volume requirement during the contract 
duration, in which case the contract shall set forth a rate, charge, or 
rate basis which will be applied.
    (D) Options for renewal or extension of the contract duration with 
or without any change in the contract rate or rate schedule;
    (E) Discontinuance of the contract;
    (F) Assignment of the contract; and
    (G) Any other deviation from any original essential term of the 
contract.
    (ix) Duration of the Contract (No. 9). The duration of the contract 
shall be stated as a specific fixed time period, with a beginning date 
(effective date) and an ending date (expiration date). See paragraph 
(d)(4)(ii) and (d)(5)(iii) of this section.
    (x) Assessorials (No. 10). Mandatory Term 10 shall contain all ET 
assessorials, preferably using a separate subterm for each type of 
assessorial. For every assessorial, the filer shall set forth either:
    (A) The full assessorial; or
    (B) A complete cross-reference to the place(s) where it may be 
found.
    (8) Optional terms. Any essential term of a service contract not 
otherwise specifically provided for in this section shall be entered 
after the mandatory terms and in numerical order, beginning with No. 
100.

[57 FR 36271, Aug. 12, 1992, as amended at 58 FR 28, Jan. 4, 1993; 61 FR 
35686, July 8, 1996]



Sec. 514.18  Special permission.

    (a) General. Section 8(d) of the 1984 Act and section 2 of the 1933 
Act authorize the Commission, in its discretion and for good cause 
shown, to permit increases or decreases in rates, or the issuance of new 
or initial rates, on less than statutory notice under Sec. 514.9. 
Section 9(c) of the 1984 Act authorizes the Commission to permit a 
controlled common carrier's rates, charges, classifications, rules or 
regulations to become effective on less than 30 days' notice. The 
Commission may also in its discretion and for good cause shown, permit 
departures from the requirements of this part. The Commission will grant 
such permission only in cases where merit is demonstrated.
    (b) Clerical errors. Typographical and/or clerical errors constitute 
good cause for the exercise of special permission authority but every 
application based

[[Page 209]]

thereon must plainly specify the error and present clear evidence of its 
existence, together with a full statement of the attending 
circumstances, and shall be submitted with reasonable promptness after 
filing the defective tariff material. For correction of clerical errors 
in the essential terms of service contracts, see Sec. 514.7(k)(2).
    (c) Application--(1) By authorized official; filing fee. Application 
for special permission to establish rate increases or decreases on less 
than statutory notice or for waiver of the provisions of this part, 
shall be made by the common carrier, conference or agent that holds 
authorization under Sec. 514.4(d) to file the tariff matter. Every such 
application shall be submitted to BTCL and be accompanied by the filing 
fee provided in Sec. 514.21.
    (2) Transmittal. Application for special permission shall be made 
only by cable, telegram or letter, except that in emergency situations, 
application may be made by telephone if the telephone communication is 
promptly followed by a cable, telex or letter and the filing fee.
    (3) Content. Except as provided in Sec. 514.7(k)(2) for correction 
of essential terms, applications for special permission shall contain 
the following information:
    (i) The organization name, number and d/b/a of the conference or 
carrier under Sec. 514.11(b);
    (ii) The tariff number, title and tariff code under Sec. 514.11(b); 
and
    (iii) The rate, commodity, Tariff Rules, etc. (related to the 
application), and the special circumstances which the applicant believes 
constitute good cause to depart from the requirements of this part or to 
warrant a tariff change upon less than the statutory notice period.
    (d) Implementation. (1) If all conditions are complied with and if 
the authority granted by special permission is used, it shall be used in 
its entirety and in the manner set forth by the Commission, including 
the prompt electronic filing of the material for which permission is 
requested, with the filer using the special case number assigned by the 
Commission for that filing and the special case symbol `` S,'' as 
prescribed in Sec. 514.9(b)(19)(i).
    (2) If Commission-specified conditions are not complied with, or if 
the exact authority granted by the special permission is not used and 
more, less or different authority is desired, a new application 
complying with the requirements of this part in all respects and 
referring to the previous special permission must be filed.

[57 FR 36271, Aug. 12, 1992, as amended at 57 FR 46324, Oct. 8, 1992; 58 
FR 30, Jan. 4, 1993]



Sec. 514.19  Suspension of tariff matter.

    All use of suspended tariff matter shall be deferred for the period 
specified in the Commission's suspension order. In addition to other 
affected places in the tariff, as provided in this section, the fact 
that tariff matter is suspended is also displayed through the ``Status'' 
function in the command line, as described in Sec. 514.8(n)(3).
    (a) Domestic offshore commerce--(1) Suspension; period. The 
Commission may suspend from use any rate, fare, charge, classification, 
Tariff Rule, regulation, or practice of a domestic offshore carrier for 
a period of up to 180 days beyond the time it would otherwise have 
lawfully taken effect.
    (2) Implementation. Upon issuance of an order suspending tariff 
matter in whole or in part, BTCL shall immediately make the appropriate 
entry in the domestic offshore carrier's tariff(s) for each suspended 
item, which entry:
    (i) Specifically identifies the tariff matter suspended and sets 
forth any tariff provisions which may remain effective in lieu of the 
suspended provisions;
    (ii) Bears an effective date coinciding with that in the applicable 
suspension order;
    (iii) Bears a thru date coinciding with the end of the suspension 
period specified in the Commission order; and
    (iv) Reproduces in the ATFI System News and/or the applicable 
commodity description record, TLI notes, Tariff Rule text, etc., those 
portions of the order directed by the Commission to be so published, or, 
in the absence of such direction, reproduces the suspension order in its 
entirety.
    (3) Amendment of suspended tariff matter. (i) Neither suspended 
matter nor matter continued in effect as a result

[[Page 210]]

of a suspension, may be amended, deleted or withdrawn except through use 
of the special case number and symbol procedure under Sec. 514.9(b)(19) 
referred to in the order or special permission issued by the Commission, 
except that a tariff affected by a suspension order may be amended 
during the suspension period if the amendment does not affect the 
suspended materials.
    (ii) If, prior to receiving a suspension order, a carrier files an 
amendment reissuing, deleting, canceling or amending any tariff matter 
named in a subsequent suspension order, the amendment shall be rejected.
    (4) Vacating suspension of tariff matter. Should the Commission 
vacate a suspension order earlier than the date to which the subject 
tariff matter was originally suspended, BTCL shall immediately change 
the thru date to the specified date in the Commission's order vacating 
the suspension order.
    (5) Cancellation of suspended matter. (i) Should the Commission 
subsequently cancel all or any part of previously-suspended tariff 
matter, BTCL shall immediately change the expiration date to the date of 
cancellation set forth in the Commission's order. See Sec. 514.4(e).
    (ii) If suspended tariff matter is not canceled by the Commission 
prior to its thru date, it shall take effect automatically on the thru 
date and any tariff matter which was continued in effect during the 
suspension period shall be automatically superseded by the tariff matter 
that had been suspended but was not canceled.
    (b) Controlled common carriers in foreign commerce.
    (1) Suspension; period. Tariff matter filed by a controlled common 
carrier may be suspended at any time before its effective date. Tariff 
matter already in effect may be suspended upon the Commission's issuance 
of a show cause order on not less than 60 days' notice to the common 
carrier. In either instance, the suspension period shall not exceed 180 
days.
    (2) Implementation. Upon issuance of an order suspending tariff 
matter in whole or in part, the Commission's BTCL shall immediately make 
the appropriate entry into the controlled common carrier's tariff(s) for 
each suspended item, which entry:
    (i) Specifically identifies the tariff material suspended;
    (ii) Bears an effective date coinciding with that of the applicable 
suspension order;
    (iii) Bears a thru date coinciding with the end of the suspension 
period specified in the Commission order; and
    (iv) Reproduces in the ATFI System News and/or the applicable 
commodity description record, TLI notes, Tariff Rule text, etc., those 
portions of the order directed by the Commission to be so published, or, 
in the absence of such direction, reproduces the suspension order in its 
entirety.
    (3) Replacement rates. (i) Controlled common carrier tariff matter 
filed to become effective during a suspension period in lieu of the 
suspended matter:
    (A) May become effective immediately upon filing or upon the 
effective date of the suspension, whichever is later; and
    (B) Shall be filed using the special case symbol and number issued 
by the Commission under Sec. 514.9(b)(19).
    (ii) In determining whether to reject replacement rates, the 
Commission will consider whether such rates result in total charges 
(e.g., rate plus applicable surcharges) that are lower than the lowest 
comparable charges effective for a U.S.-flag or reciprocal-flag common 
carrier serving the same trade.
    (iii) At the same time it files replacement rates, the controlled 
common carrier shall submit to BTCL a letter (in paper format) 
identifying the specific U.S.-flag or reciprocal-flag common carrier's 
rates, charges, classification or Tariff Rules resulting in total 
charges which equal or are lower than its own.
    (c) Other suspension situations. When the Commission, upon good 
cause shown, issues an order to suspend tariff matter not addressed in 
paragraphs (a) or (b) of this section, it will set forth in the order 
the procedures for effectuating the suspension.
    (d) Other filings in suspension situations. In suspension 
situations, when filings, not provided for elsewhere in this section and 
not otherwise permitted by the rules of this part, may

[[Page 211]]

become necessary or desirable, such filings may be directed by the 
Commission and shall use the assigned special case symbol and number 
procedure under Sec. 514.9(b)(19).



Sec. 514.20  Retrieval.

    (a) General. The Commission will not provide to the public tariff 
data in paper format, except pursuant to requests for certification of 
copies for court or government agency use, as provided in 
Sec. 514.8(k)(2).
    (b) User charges. User charges for services under this section are 
provided in Sec. 514.21.
    (c) Interactive retrieval. Interactive retrieval means the process 
by which any member of the public accesses the ATFI system via dial-up 
connection, using telecommunications links, a modem and a terminal (see 
Sec. 514.8(e)), and interacts with the system on a transaction-by-
transaction basis to retrieve tariff matter which has been filed in the 
ATFI database.
    (1) Registration. Every public interactive retriever will be 
required to register in advance with BTCL under Sec. 514.8(f) to obtain 
a USERID and password.
    (2) Automatic logoff. All retrievers will be automatically logged 
off after 10 minutes of inactivity.
    (3) Remote retrieval by modem. A public retriever may access and/or 
obtain (through screen prints) ATFI filed tariff data through modem and 
telecommunications links and procedures authorized by the Commission.
    (4) Tariff Control Center. A public retriever may access and/or 
obtain ATFI filed tariff data through personal operation of one of 
several terminals provided in the Tariff Control Center at the FMC 
headquarters in Washington, D.C.
    (d) Batch retrieval through data base files. Interested parties may 
subscribe to all tariff filings/updates received by the Commission on a 
daily basis. The ATFI System Administrator will create a daily 
subscriber data update file which will be accessible to subscribers. The 
daily updates subscriber will access the ATFI system to on-line download 
the tariff updates received during the previous workday and any 
intervening weekend/holidays, as well as any tariff updates created by 
the Commission (e.g., suspensions, rejections, etc.). Subscribers may 
request that daily updates be forwarded on tape (either 9 track, 6250 
bpi or 8 mm cartridge, Exabyte 8500 compatible) when the file size 
indicates that the on-line download option is not cost-effective. 
Subscriber responsibility and charges for use of this option are 
specified in Sec. 514.21(j)(2). The Commission may also send selected 
daily updates by first class mail (or as directed by subscribers at 
subscriber's expense) or make updates available at the ATFI computer 
center when the magnitude of the file size indicates that downloads 
would degrade ATFI access for other ATFI user functions. The charge 
specified in Sec. 514.21(j)(2) will apply, but subscribers will not be 
required to provide tapes. Subscribers requesting update data on tape 
are responsible for insuring that the Commission has received sufficient 
pre-paid monies before the last business day of the preceding month in 
order to subscribe to the next month's filings. The Commission will 
terminate the download capability of any accounts in arrears.
    (e) Instructional materials--(1) ATFI ``Batch Filing Guide'' and 
user manual. The ATFI user guides applicable to retrieval functions are 
the ``ATFI Fundamentals Guide,'' ``ATFI System Handbook,'' and ``ATFI 
Tariff Retrieval Guide.'' See Sec. 514.8(b). The user of subscriber 
tapes will also need the ATFI transaction set formats and specifications 
detailed in the ``Batch Filing Guide.'' See Sec. 514.8(d)(3). The 
transaction set formats published for batch filers are used for the 
formatting of subscriber tapes.
    (2) Computer based instruction (``CBI''). Computer based instruction 
for ATFI retrieval is a menu option for registered interactive 
retrievers using the ATFI central site system. See Sec. 514.8(h).
    (f) Filers. Properly registered individuals who will have ``write'' 
privileges for editing tariff data may access those tariffs for which 
they have such filing privileges without restriction. Where filing firms 
or employees thereof also register as public retrievers for access to 
all tariff data, the restrictions in paragraph (c)(2) of this section 
shall

[[Page 212]]

apply when they enter ATFI as a retriever.

[57 FR 36271, Aug. 12, 1992, as amended at 58 FR 30715, May 27, 1993; 60 
FR 56123, Nov. 7, 1995]



Sec. 514.21  User charges.

    In accordance with 5 U.S.C. 552 and 31 U.S.C. 9701, the user charges 
in this section are established for services under this part. Unless 
otherwise provided in this part, checks, drafts or money orders shall be 
remitted and made payable to ``Federal Maritime Commission (OBFM),'' 800 
North Capitol Street, NW., Washington, DC 20573. Unless otherwise 
specified, overdue payments will be charged interest in accordance with 
the rate established by the Department of the Treasury for each 30-day 
period or portion thereof that the payment is overdue. In addition to 
any other remedy and penalty provided by law and regulation, if payment 
is overdue for 90 days, ATFI services will be denied:
    (a) Application for exemption (See Secs. 514.3 and 514.8(a)): As 
provided in Sec. 502.69 of this chapter.
    (b) User manual (of ATFI ``Guides'' -- Sec.  514.8(b)).
    (1) In diskette form: $39 for diskette(s) containing all user guides 
in WordPerfect 5.0 format.
    (2) Printed, in paper form (Batch Filing Guide is free of charge and 
is furnished separately):
    (i) Package A: Fundamentals Guide and System Handbook (125 pages) 
are made available jointly and are a prerequisite for use of either of 
the packages in paragraphs (b)(2)(ii) or (b)(2)(iii) of this section: 
$49.00.
    (ii) Package B: Tariff Retrieval Guide: $49.00.
    (iii) Package C: Tariff Filing Guide: $59.00.
    (iv) Package D: All Guides listed in paragraphs (b)(2)(i) through 
(b)(2)(iii) of this section: $99.00.
    (3) Ordering manuals. Requests for user manual package(s) should be 
in writing and addressed to ``BTCL Manuals,'' Federal Maritime 
Commission, Washington, DC 20573. A check for the appropriate amount 
should be made to the ``Federal Maritime Commission.''
    (4) Updates. Updates to the user manual in any format will not be 
furnished automatically and are not included in the user charge. The 
Commission will publicize notice of upgrades when they occur.
    (c) Registration for user (filer and/or retriever ID and password 
(see exhibit 1 to this part and Secs. 514.4(d), 514.8(f) and 514.20)): 
$174 for initial registration for firm and one individual; $148 for 
additions and changes.
    (d) Certification by Commission Secretary of tariff data 
(Sec. 514.8(k)(2)): As provided in Sec. 503.43(c) of this chapter.
    (e) Certification of batch filing capability (by appointment through 
the Office of Information Resources Management) (Sec. 514.8(1)).
    (1) User charge: $496 per certification submission (covers all types 
of tariffs for which the applicant desires to be certified as well as 
recertification required by substantial changes to the ATFI system).
    (2) Certification submissions:
    (i) May be made in one or more scheduled certification periods;
    (ii) May include transaction sets for one of each different tariff 
type listed in Appendix A ( 14) of the ATFI Batch Filing Guide; and
    (iii) May be made to the ATFI central site computer via on-line 
batch or to the ATFI Computer Center via bulk batch (9-track tape), or 
both.
    (f) Application for special permission (Sec. 514.18): $179.
    (g) Remote electronic retrieval (Sec. 514.20(c)(3)). The fee for 
remote electronic access to ATFI electronic data is 33 cents for each 
minute of remote computer access directly to the ATFI database by any 
individual.
    (h) Printing (screen prints) of downloaded tariff matter at 
Commission's Tariff Control Center (Sec. 514.20(c)(4)): as provided in 
part 503, subpart E.
    (i) Tariff filing fee. The fee for tariff filing shall be 20 cents 
per filing object; the fee for filing service contract essential terms 
shall be $1.63 per filing set.
    (j) Daily Subscriber Data (Sec. 514.20(d)).
    (1) Persons requesting download of daily updates must pay 33 cents 
per minute as provided by Sec. 514.21(g).

[[Page 213]]

    (2) Persons requesting daily updates on tape must supply the tapes 
and return postage, and pay $43 per daily update.
    (k) Miscellaneous tapes. The fee for tape data, other than the ATFI 
database described in paragraph (j) of this section, shall be $46 for 
the initial tape plus $25 for each additional tape required.
    (l) Access to ATFI data. Official ATFI tariff data may be directly 
accessed by computer by:
    (1) Retrievers. Any person may, with a proper retrieval USERID and 
password, enter the official ATFI database to obtain computer access of 
tariff matter, as provided in this part, but may download ATFI data only 
through the ``Print Screen'' function, which prints one screen at a time 
on paper. The user fee for this computer access is 33 cents a minute, 
for which the user will be billed at the end of each month.
    (2) Filers. Any person with a proper filer USERID and password may 
enter the official ATFI database to obtain computer access of tariff 
matter as provided in this part, but may download ATFI data only through 
the ``Print Screen'' function, which prints one screen at a time on 
paper, and the filer ATFI-mail-file-transfer function, which prints the 
contents of the filer's ATFI mail on paper.
    (m) Regulated Persons Index. The Regulated Persons Index is a 
database containing the names, addresses, phone/fax numbers and bonding 
information, where applicable, of Commission-regulated entities. The 
database may be purchased for $84 by contacting BTCL, Federal Maritime 
Commission, Washington, DC 20573. Contact information is listed on the 
Commission's website at www.fmc.gov.

[57 FR 36271, Aug. 12, 1992, as amended at 58 FR 30, Jan. 4, 1993; 58 FR 
30715, May 27, 1993; 59 FR 59171, Nov. 16, 1994; 59 FR 63908, Dec. 12, 
1994; 60 FR 56124, Nov. 7, 1995; 63 FR 50536, Sept. 22, 1998]

    Effective Date Note: At 63 FR 50536, Sept. 22, 1998, in Sec. 514.21, 
paragraphs (b)(1), (b)(2)(i) through (iv), (c), (e)(1), (f), (g), (i), 
(j)(1) and (k) were revised; paragraph (l) was removed; paragraph (m) 
was revised and redesignated paragraph (l); and new paragraph (m) was 
added, effective Nov. 2, 1998. For the convenience of the user, the 
superseded text is set forth as follows:

Sec. 514.21  User charges.

                                * * * * *

    (b) User manual (of ATFI ``Guides'' -- Sec. 514.8(b)).
    (1) In diskette form: $15 for diskette(s) containing all user guides 
in WordPerfect 5.0 format.
    (2) * * *
    (i) Package A: Fundamentals Guide and System Handbook (125 pages) 
are made available jointly and are a prerequisite for use of either of 
the packages in paragraphs (b)(2)(ii) or (b)(2)(iii): $18.00.
    (ii) Package B: Tariff Retrieval Guide: $15.00.
    (iii) Package C: Tariff Filing Guide: $27.00.
    (iv) Package D: All Guides listed in paragraphs (b)(2)(i) through 
(b)(2)(iii): $55.00.

                                * * * * *

    (c) Registration for user (filer and/or retriever ID and password 
(see exhibit 1 to this part and Secs. 514.4(d), 514.8(f) and 514.20)): 
$162 for initial registration for firm and one individual; $136 for 
additions and changes.

                                * * * * *

    (e) Certification of batch filing capability (by appointment through 
the Bureau of Administration) (Sec. 514.8(l)).
    (1) User charge: $359 per certification submission (covers all types 
of tariffs for which the applicant desires to be certified as well as 
recertification required by substantial changes to the ATFI system).

                                * * * * *

    (f) Application for special permission (Sec. 514.18): $146.
    (g) Remote electronic retrieval (Sec. 514.20(c)(3)). The fees for 
remote electronic access to ATFI electronic data are:
    (1) A fee of 46 cents for each minute of remote computer access 
directly to the ATFI database by any individual; and
    (2) Through September 30, 1995, for a person operating or 
maintaining information in a database that has multiple tariff or 
service contract information, obtained directly or indirectly from the 
Commission, a fee of 46 cents for each minute that database is 
subsequently accessed by computer by any individual.
    (h) * * *
    (i) Tariff filing fee. The fee for tariff filing in either the 
foreign or domestic offshore commerce of the United States shall be 17 
cents per filing object; the fee for filing service contract essential 
terms shall be $1.65 per filing set.
    (j) Daily Subscriber Data (Sec. 514.20(d)). (1) Persons requesting 
download of daily updates

[[Page 214]]

must pay 46 cents per minute as provided by Sec. 514.21(g)(1).

                                * * * * *

    (k) Miscellaneous tapes. The fee for tape data, other than the ATFI 
database described in paragraph (j) of this section, shall be $61 for 
the initial tape plus $25 for each additional tape required.
    (l) Exceptions.
    (1) Marine terminal tariff data are not subject to a secondary user 
charge for access under paragraphs (g)(2) or (m)(2) of this section.
    (2) Subject to the secondary access restrictions and user fees under 
paragraph (m)(2) of this section:
    (i) Filers may, without the necessity of paying a user fee under 
this section, access only those tariffs or parts of tariffs for which 
they have an authorized filer USERID and password.
    (ii) A Federal agency is exempt from paying a fee under paragraphs 
(g) and (j) of this section.
    (m) Enforcement of section 502 of Public Law 102-582 (until 
September 30, 1995). Through September 30, 1995, and in order to comply 
with section 502 of Public Law 102-582 (46 U.S.C. 1707a), official ATFI 
tariff data may be accessed by computer only as described in this 
paragraph:
    (1) Direct access. (i) Retrievers. Any person may, with a proper 
retrieval USERID and password, enter the official ATFI database to 
obtain computer access of tariff matter, as provided in this part, but 
may download ATFI data only through the ``Print Screen'' function, which 
prints one screen at a time on paper. The user fee for this computer 
access is 46 cents a minute, for which the user will be billed at the 
end of each month.
    (ii) Filers. Any person with a proper filer USERID and password may 
enter the official ATFI database to obtain computer access of tariff 
matter as provided in this part, but may download ATFI data only through 
the ``Print Screen'' function, which prints one screen at a time on 
paper, and the filer ATFI-mail-file-transfer function, which prints the 
contents of the filer's ATFI mail on paper.
    (2) Indirect access: purchase and use of database tapes. (i)(A) Any 
person purchasing or subscribing to, or otherwise acquiring, ATFI 
database tapes under Sec. 514.20(d) and this section shall first submit 
for approval to BTCL of the FMC a description and model of the 
accounting or charging system it intends to use to comply with this 
paragraph so that the FMC can determine whether such system is adequate. 
There shall be included in the application for approval detailed 
descriptions of:
    (1) The methodology for, inter alia, monitoring, collecting, 
reporting and payment to the FMC of the secondary access fee for all 
indirect access of data, as prescribed by section 502 of Public Law 102-
582 and this part;
    (2) Features to protect the security of tariff data;
    (3) How the applicant intends to categorize and handle ``mixed'' 
data, i.e., data which is, as well as data which is not, subject to the 
user fee.
    (4) All the records which will be necessary to perform the functions 
set forth in paragraphs (m)(2)(i)(A)(1) through (m)(2)(i)(A)(3) of this 
section, to permit adequate evaluation of the reports submitted and 
computations used, and sufficient to reflect properly the charges to be 
collected and paid under this paragraph, including, specifically, all 
records of access granted, fees charged and collected for each secondary 
retriever, and remittances to FMC. These records, which must be retained 
for possible audit under paragraph (m)(2)(ii) of this section, shall 
include books, records, documents, and other evidence and accounting 
procedures and practices, regardless of form, e.g., machine readable 
media such as disk tape, or type, e.g., data bases, applications 
software, data base management software, utilities.
    (B) Those parts of the charging system which the applicant wishes 
not to be disclosed to the public because they are considered business 
sensitive, e.g., ``trade secrets,'' shall be kept completely separate 
from the balance of the application, along with a full justification of 
their non-disclosability. The Commission will consider any request for 
these records under the Freedom of Information Act.
    (C) The FMC will evaluate the charging system within sixty (60) 
calendar days after submission and approval will be assumed unless the 
FMC otherwise formally notifies the applicant within the sixty-day 
period.
    (D) The database tapes of ATFI may not be made available to any 
person until its charging system is approved by FMC.
    (ii)(A) Every person who is authorized to purchase ATFI database 
tapes under paragraph (m)(2)(i) of this section shall maintain those 
records described in paragraph (m)(2)(i)(A)(4) of this section until 
October 1, 1998.
    (B) The FMC or its representatives shall have the right to examine 
and audit all records described in paragraphs (m)(2)(i)(A)(4) and 
(m)(2)(ii)(A) of this section, for the purpose of evaluating the 
accuracy and completeness of the reports required by this paragraph. The 
right of examination shall extend to all documents and other data, 
regardless of form, necessary to permit adequate evaluation of the 
reports submitted, along with the computations used.
    (iii)(A) Any person having an ATFI database tape may access by 
computer the data contained therein for its own use, and/or

[[Page 215]]

may permit others to access by computer the data, but only if it records 
all such access and pays to the FMC the 46-cents-a-minute user charges 
for all computer access to such data, as prescribed in paragraph 
(g)(1)(ii) of this section under the approved charging system described 
in paragraph (m)(2)(i) of this section.
    (B) The access of data on paper, e.g., that which has been printed 
or written on the paper, is not subject to the indirect (secondary) user 
fee under this paragraph, even if subsequently converted into computer, 
e.g., database, format.
    (iv) No person having an ATFI database tape may allow downloading of 
the data contained therein other than by an effectively-designed and 
functioning ``Print-Screen'' function, which allows printing of one 
screen at a time onto paper.
    (v) Billing and Payment.
    (A) Within ten (10) calendar days after the end of each month, each 
database-tape purchaser under paragraph (m)(2)(i) of this section shall 
transmit to the Office of Budget and Financial Management, Federal 
Maritime Commission, 800 North Capitol Street, NW. Washington, DC 20573-
0001, a report of all computer access to ATFI data listed by user, date 
and minutes accessed. Each such purchaser shall simultaneously transmit 
payment to ``the Federal Maritime Commission'' for such usage at the 
rate of 46 cents per minute.
    (B) If payment is not made when due, the database purchaser under 
paragraph (m)(2)(v)(A) of this section may be assessed interest, 
penalties and administrative costs associated with collection of late 
payments in accordance with the Federal Claims Collection Standards, 4 
CFR 102.13. The FMC intends to utilize the provisions of the Debt 
Collection Act, 5 U.S.C. 5514, including disclosure to consumer 
reporting agencies, to ensure prompt payment.
    (C) The FMC reserves the right to suspend or terminate furnishing 
ATFI data tapes to any person if payment is not timely made.



Sec. 514.91  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    The information collection requirements contained in these 
regulations (46 CFR part 514 and Exhibit 1 to part 514) have been 
approved by the Office of Management and Budget [OMB] in accordance with 
44 U.S.C. chapter 35 and have been assigned OMB control number 3072-
0055.

[[Page 216]]

[GRAPHIC] [TIFF OMITTED] TC03MR91.042


[[Page 217]]


[GRAPHIC] [TIFF OMITTED] TC03MR91.043


[[Page 218]]



                         Exhibit II to Part 514

               Sample Abbreviated Format Service Contract

Service Contract No.: SC 1-95
FMC File No.: 50,000
Essentials Terms No.: ET 1-95
Amendment No.: ______
Service Contract Essential Terms Publication No.: 003
Tariff(s) of General Applicability No.: 001, 002

Carrier/Conference Name: Efficient Liner Transportation, Inc.
Carrier/Conference Address: 1227 Seaway Drive, Washington, DC 20573

and

Shipper Name: ABC Electronics Company
Shipper Address: 7221 Happiness Lane, New York, NY 10001
    This is a service contract pursuant to the Shipping Act of 1984 (46 
U.S.C. app. 1701 et seq.) and FMC rules at 46 CFR Part 514, between 
``CARRIER/CONFERENCE'' and ``SHIPPER'' parties named herein. The 
contract parties certify that the terms set forth herein and the 
essential terms as published in Carrier/Conference Service Contract 
Essential Terms Tariff No. 003, ET No. 1-95, in the Federal Maritime 
Commission's Automated Tariff Filing and Information System, constitute 
the true and complete copy of all aspects of this contract and are 
hereby incorporated by reference.
    Further, shipper party named herein certifies its status and that of 
any affiliate(s)/subsidiary(ies) named herein as (check appropriate 
box(es):

NVOCC ______
Shippers' Association ______
Owner of Cargo ______
Other (Please specify) ______

    Records maintained to support shipments under this service contract 
are: bills of lading, shipping manifests, and other related written 
correspondence between contract parties.
    Contact person for records in the event of a request by the Federal 
Maritime Commission: Efficient Liner Transportation, Inc., Traffic 
Manager, 1227 Seaway Drive, Washington, DC 20573, (202) 523-5856.

_______________________________________________________________________
(Carrier/Conference Signature)

_______________________________________________________________________
Date

Efficient Liner Transportation, Inc.

_______________________________________________________________________
(Shipper Signature)

_______________________________________________________________________
Date

ABC Electronics Company

Affiliate of shipper: Quality Compact Discs, Inc.
Affiliate's address: 7221-A Happiness Lane, New York, NY 10001

[61 FR 5311, Feb. 12, 1996; 61 FR 14979, Apr. 4, 1996]



PART 540--SECURITY FOR THE PROTECTION OF THE PUBLIC--Table of Contents




Subpart A--Proof of Financial Responsibility, Bonding and Certification 
   of Financial Responsibility for Indemnification of Passengers for 
                    Nonperformance of Transportation

Sec.
540.1  Scope.
540.2  Definitions.
540.3  Proof of financial responsibility, when required.
540.4  Procedure for establishing financial responsibility.
540.5  Insurance, guaranties, escrow accounts, and self-insurance.
540.6  Surety bonds.
540.7  Evidence of financial responsibility.
540.8  Denial, revocation, suspension, or modification.
540.9  Miscellaneous.

Form FMC-131
Form FMC-132A
Form FMC-133A
Appendix A to Part 540--Example of Escrow Agreement for Use Under 46 CFR 
          540.5(b)

Subpart B--Proof of Financial Responsibility, Bonding and Certification 
  of Financial Responsibility To Meet Liability Incurred for Death or 
            Injury to Passengers or Other Persons on Voyages

540.20  Scope.
540.21  Definitions.
540.22  Proof of financial responsibility, when required.
540.23  Procedure for establishing financial responsibility.
540.24  Insurance, surety bonds, self-insurance, guaranties, and escrow 
          accounts.
540.25  Evidence of financial responsibility.
540.26  Denial, revocation, suspension, or modification.
540.27  Miscellaneous.

Form FMC-132B
Form FMC-133B

                           Subpart C--General

540.91  OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 5 U.S.C. 552, 553; 31 U.S.C. 9701; secs. 2 and 3, Pub. L. 
89-777, 80 Stat. 1356-1358

[[Page 219]]

(46 U.S.C. app. 817e, 817d); sec. 43 of the Shipping Act, 1916 (46 
U.S.C. app. 841a); sec. 17 of the Shipping Act of 1984 (46 U.S.C. 1716).

    Source: 49 FR 36313, Sept. 14, 1984, unless otherwise noted.



Subpart A--Proof of Financial Responsibility, Bonding and Certification 
   of Financial Responsibility for Indemnification of Passengers for 
                    Nonperformance of Transportation



Sec. 540.1  Scope.

    (a) The regulations contained in this subpart set forth the 
procedures whereby persons in the United States who arrange, offer, 
advertise or provide passage on a vessel having berth or stateroom 
accommodations for 50 or more passengers and embarking passengers at 
U.S. ports shall establish their financial responsibility or, in lieu 
thereof, file a bond or other security for obligations under the terms 
of ticket contracts to indemnify passengers for nonperformance of 
transportation to which they would be entitled. Included also are the 
qualifications required by the Commission for issuance of a Certificate 
(Performance) and the basis for the denial, revocation, modification, or 
suspension of such Certificates.
    (b) Failure to comply with this part may result in denial of an 
application for a certificate. Vessels operating without the proper 
certificate may be denied clearance and their owners may also be subject 
to a civil penalty of not more than $5,000 in addition to a civil 
penalty of $200 for each passage sold, such penalties to be assessed by 
the Federal Maritime Commission (46 U.S.C. app. 91, 817d and 817e).



Sec. 540.2  Definitions.

    As used in this subpart, the following terms shall have the 
following meanings:
    (a) Person includes individuals, corporations, partnerships, 
associations, and other legal entities existing under or authorized by 
the laws of the United States or any State thereof or the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands or any 
territory or possession of the United States, or the laws of any foreign 
country.
    (b) Vessel means any commercial vessel having berth or stateroom 
accommodations for 50 or more passengers and embarking passengers at 
U.S. ports.
    (c) Commission means the Federal Maritime Commission.
    (d) United States includes the Commonwealth of Puerto Rico, the 
Virgin Islands or any territory or possession of the United States.
    (e) Berth or stateroom accommodation or passenger accommodations 
includes all temporary and all permanent passenger sleeping facilities.
    (f) Certificate (Performance) means a Certificate of Financial 
Responsibility for Indemnification of Passengers for Nonperformance of 
Transportation issued pursuant to this subpart.
    (g) Passenger means any person who is to embark on a vessel at any 
U.S. port and who has paid any amount for a ticket contract entitling 
him to water transportation.
    (h) Passenger revenue means those monies wherever paid by passengers 
who are to embark at any U.S. port for water transportation and all 
other accommodations, services and facilities relating thereto.
    (i) Unearned passenger revenue means that passenger revenue received 
for water transportation and all other accommodations, services, and 
facilities relating thereto not yet performed.
    (j) Insurer means any insurance company, underwriter, corporation, 
or association or underwriters, ship owners' protection and indemnity 
association, or other insurer acceptable to the Commission.
    (k) Evidence of insurance means a policy, certificate of insurance, 
cover note, or other evidence of coverage acceptable to the Commission.
    (l) Whole-ship charter means an arrangement between a passenger 
vessel operator and a corporate or institutional entity:
    (1) Which provides for the purchase of all the passenger 
accommodations on a vessel for a particular voyage or series of voyages; 
and

[[Page 220]]

    (2) Whereby the involved corporate or institutional entity provides 
such accommodations to the ultimate passengers free of charge and such 
accommodations are not resold to the public.

[49 FR 36313, Sept. 14, 1984, as amended at 57 FR 41891, Sept. 14, 1992]



Sec. 540.3  Proof of financial responsibility, when required.

    No person in the United States may arrange, offer, advertise or 
provide passage on a vessel unless a Certificate (Performance) has been 
issued to or covers such person.



Sec. 540.4  Procedure for establishing financial responsibility.

    (a) In order to comply with section 3 of Public Law 89-777 (80 Stat. 
1357, 1358) enacted November 6, 1966, there must be filed an application 
on Form FMC-131 for a Certificate of Financial Responsibility for 
Indemnification of Passengers for Nonperformance of Transportation. 
Copies of Form FMC-131 may be obtained from the Secretary, Federal 
Maritime Commission, Washington, DC 20573.
    (b) An application for a Certificate (Performance) shall be filed in 
duplicate with the Secretary, Federal Maritime Commission, by the vessel 
owner or charterer at least 60 days in advance of the arranging, 
offering, advertising, or providing of any water transportation or 
tickets in connection therewith except that any person other than the 
owner or charterer who arranges, offers, advertises, or provides passage 
on a vessel may apply for a Certificate (Performance). Late filing of 
the application will be permitted only for good cause shown. All 
applications and evidence required to be filed with the Commission shall 
be in English, and any monetary terms shall be expressed in terms of 
U.S. currency. The Commission shall have the privilege of verifying any 
statements made or any evidence submitted under the rules of this 
subpart. An application for a Certificate (Performance), excluding an 
application for the addition or substitution of a vessel to the 
applicant's fleet, shall be accompanied by a filing fee remittance of 
$2,152. An application for a Certificate (Performance) for the addition 
or substitution of a vessel to the applicant's fleet shall be 
accompanied by a filing fee remittance of $1,076.
    (c) The application shall be signed by a duly authorized officer or 
representative of the applicant with a copy of evidence of his or her 
authority. In the event of any material change in the facts as reflected 
in the application, an amendment to the application shall be filed no 
later than five (5) days following such change. For the purpose of this 
subpart, a material change shall be one which: (1) Results in a decrease 
in the amount submitted to establish financial responsibility to a level 
below that required to be maintained under the rules of this subpart, or 
(2) requires that the amount to be maintained be increased above the 
amount submitted to establish financial responsibility. Notice of the 
application for, issuance, denial, revocation, suspension, or 
modification of any such Certificate shall be published in the Federal 
Register.

[49 FR 36313, Sept. 14, 1984, as amended at 59 FR 59172, Nov. 16, 1994; 
63 FR 50537, Sept. 22, 1998]

    Effective Date Note: At 63 FR 50537, Sept. 22, 1998, the last 
sentence in Sec. 540.4(a) and the last sentence in Sec. 540.4(b) were 
revised, and another sentence was added to the end of Sec. 540.4(b), 
effective Nov. 2, 1998. For the convenience of the user, the superseded 
text is set forth as follows:

Sec. 540.4  Procedure for establishing financial responsibility.

    (a) * * * Copies of Form FMC-131 may be obtained from the Secretary, 
Federal Maritime Commission, Washington, DC 20573, or at the 
Commission's offices at New York, NY; New Orleans, LA; San Francisco, 
CA; Miami, FL; Los Angeles, CA; Hato Rey, PR; and Chicago, IL.
    (b) * * * An application for a Certificate (Performance) shall be 
accompanied by a filing fee remittance of $1,874.

                                * * * * *



Sec. 540.5  Insurance, guaranties, escrow accounts, and self-insurance.

    Except as provided in Sec. 540.9(j), the amount of coverage required 
under this section and Sec. 540.6(b) shall be in an amount determined by 
the Commission to be no less than 110 percent of the unearned passenger 
revenue of the applicant on the date within the 2 fiscal years 
immediately prior to the filing of

[[Page 221]]

the application which reflects the greatest amount of unearned passenger 
revenue, unless the applicant qualifies for consideration under 
Sec. 540.5(e). The Commission, for good cause shown, may consider a time 
period other than the previous 2-fiscal-year requirement in this section 
or other methods acceptable to the Commission to determine the amount of 
coverage required. Evidence of adequate financial responsibility for the 
purposes of this subpart may be established by one or a combination 
(including Sec. 540.6 Surety Bonds) of the following methods:
    (a) Filing with the Commission evidence of insurance, issued by an 
insurer, providing coverage for indemnification of passengers in the 
event of the nonperformance of water transportation.
    (1) Termination or cancellation of the evidence of insurance, 
whether by the assured or by the insurer, and whether for nonpayment of 
premiums, calls or assessments or for other cause, shall not be 
effected: (i) Until notice in writing has been given to the assured or 
to the insurer and to the Secretary of the Commission at its office, in 
Washington, DC 20573, by certified mail, and (ii) until after 30 days 
expire from the date notice is actually received by the Commission, or 
until after the Commission revokes the Certificate (Performance), 
whichever occurs first. Notice of termination or cancellation to the 
assured or insurer shall be simultaneous to such notice given to the 
Commission. The insurer shall remain liable for claims covered by said 
evidence of insurance arising by virtue of an event which had occurred 
prior to the effective date of said termination or cancellation. No such 
termination or cancellation shall become effective while a voyage is in 
progress.
    (2) The insolvency or bankruptcy of the assured shall not constitute 
a defense to the insurer as to claims included in said evidence of 
insurance and in the event of said insolvency or bankruptcy, the insurer 
agrees to pay any unsatisfied final judgments obtained on such claims.
    (3) No insurance shall be acceptable under these rules which 
restricts the liability of the insurer where privity of the owner or 
charterer has been shown to exist.
    (4) Paragraphs (a)(1) through (a)(3) of this section shall apply to 
the guaranty as specified in paragraph (c) of this section.
    (b) Filing with the Commission evidence of an escrow account, 
acceptable to the Commission, for indemnification of passengers in the 
event of nonperformance of water transportation. Parties filing escrow 
agreements for Commission approval may execute such agreements in the 
form set forth in appendix A of subpart A of this part.
    (c) Filing with the Commission a guaranty on Form FMC-133A, by a 
guarantor acceptable to the Commission, for indemnification of 
passengers in the event of nonperformance of water transportation. The 
requirements of Form FMC-133A, however, may be amended by the Commission 
in a particular case for good cause.
    (d) Filing with the Commission for qualification as a self-insurer 
such evidence acceptable to the Commission as will demonstrate continued 
and stable passenger operations over an extended period of time in the 
foreign or domestic trade of the United States. Such evidence must 
include an affidavit by the operator's Chief Executive Officer or other 
responsible corporate officer of a minimum of five years of operation in 
United States trades, with a satisfactory explanation of any claims for 
nonperformance of transportation. In addition, applicant must 
demonstrate financial responsibility by maintenance of net worth in an 
amount calculated as in the introductory text of this section. The 
Commission will take into consideration all current contractual 
requirements with respect to the maintenance of such net worth to which 
the applicant is bound. Evidence must be submitted that the net worth 
required above is physically located in the United States. This evidence 
of financial responsibility shall be supported by and subject to the 
following which are to be submitted on a continuing basis for each year 
or portion thereof while the Certificate (Performance) is in effect:
    (1) A current quarterly balance sheet, except that the Commission, 
for good

[[Page 222]]

cause shown, may require only an annual balance sheet;
    (2) A current quarterly statement of income and surplus, except that 
the Commission, for good cause shown, may require only an annual 
statement of income and surplus;
    (3) An annual current balance sheet and an annual current statement 
of income and surplus to be certified by appropriate certified public 
accountants;
    (4) Semiannual current statement of the book value or current market 
value of any assets physically located within the United States together 
with a certification as to the existence and amount of any encumbrances 
thereon;
    (5) Semiannual current credit rating report by Dun and Bradstreet or 
any similar concern found acceptable to the Commission;
    (6) A list filed semiannually of all contractual requirements or 
other encumbrances (and to whom the applicant is bound in this regard) 
relating to the maintenance of net worth;
    (7) All financial statements required to be submitted under this 
section shall be due within a reasonable time after the close of each 
pertinent accounting period;
    (8) Such additional evidence of financial responsibility as the 
Commission may deem necessary in appropriate cases.
    (e) The following schedule may be applied to determine the minimum 
coverage required for indemnification of passengers in the event of 
nonperformance of water transportation for those operators who have not 
elected to qualify by self-insurance; and can provide evidence (in the 
form of an affidavit by the operator's Chief Executive Officer or other 
responsible corporate officer) of a minimum of five years of operation 
in United States trades, with a satisfactory explanation of any claims 
for nonperformance of transportation:

------------------------------------------------------------------------
    Unearned passenger revenue (``UPR'')           Required coverage
------------------------------------------------------------------------
$0-$5,000,000...............................  100% of UPR up to
                                               $5,000,000.
$5,000,001-$15,000,000......................  $5,000,000 plus 50% of
                                               excess UPR over
                                               $5,000,000 subject to an
                                               overall maximum of
                                               $5,000,000 per vessel.
$15,000,001-$35,000,000.....................  $10,000,000 plus 25% of
                                               excess of UPR over
                                               $15,000,000 subject to an
                                               overall maximum of
                                               $5,000,000 per vessel and
                                               a $15,000,000 overall
                                               maximum.
Over $35,000,000............................  $15,000,000 overall
                                               maximum.
------------------------------------------------------------------------

    (f) Revenues derived from whole-ship charters, as defined in 
Sec. 540.2(l), may be exempted from consideration as unearned passenger 
revenues, on condition that, in the case of a new operator or within 30 
days of the execution of the whole-ship charter if the operator has a 
Performance Certificate for the vessel in question: (1) A certified true 
copy of the contract or charter is furnished with the application; (2) 
The chartering party attests that it will redistribute the vessel's 
passenger accommodations without charge; and (3) A document executed by 
the chartering party's Chief Executive Officer or other responsible 
corporate officer is submitted by which the chartering party 
specifically acknowledges that its rights to indemnification under 
section 3 of Public Law 89-777 may be affected by the reduction in 
section 3, Public Law 89-777, financial responsibility coverage 
attributable to the exclusion of such funds from the operator's UPR.

[49 FR 36313, Sept. 14, 1984, as amended at 55 FR 1824, Jan. 19, 1990; 
57 FR 41891, Sept. 14, 1992; 57 FR 62480, Dec. 31, 1992]



Sec. 540.6  Surety bonds.

    (a) Where financial responsibility is not established under 
Sec. 540.5, a surety bond shall be filed on Form FMC-132A. Such surety 
bond shall be issued by a bonding company authorized to do business in 
the United States and acceptable to the Commission for indemnification 
of passengers in the event of nonperformance of water transportation. 
The requirements of Form FMC-132A, however, may be amended by the 
Commission in a particular case for good cause.
    (b) In the case of a surety bond which is to cover all passenger 
operations of the applicant subject to these rules,

[[Page 223]]

such bond shall be in an amount calculated as in the introductory text 
of Sec. 540.5.
    (c) In the case of a surety bond which is to cover an individual 
voyage, such bond shall be in an amount determined by the Commission to 
equal the gross passenger revenue for that voyage.
    (d) The liability of the surety under the rules of this subpart to 
any passenger shall not exceed the amount paid by any such passenger, 
except that, no such bond shall be terminated while a voyage is in 
progress.

[49 FR 36313, Sept. 14, 1984, as amended at 55 FR 1824, Jan. 19, 1990]



Sec. 540.7  Evidence of financial responsibility.

    Where satisfactory proof of financial responsibility has been given 
or a satisfactory bond has been provided, a Certificate (Performance) 
covering specified vessels shall be issued evidencing the Commission's 
finding of adequate financial responsibility to indemnify passengers for 
nonperformance of water transportation. The period covered by the 
Certificate (Performance) shall be indeterminate, unless a termination 
date has been specified thereon.



Sec. 540.8  Denial, revocation, suspension, or modification.

    (a) Prior to the denial, revocation, suspension, or modification of 
a Certificate (Performance), the Commission shall advise the applicant 
of its intention to deny, revoke, suspend, or modify and shall state the 
reasons therefor. If the applicant, within 20 days after the receipt of 
such advice, requests a hearing to show that the evidence of financial 
responsibility filed with the Commission does meet the rules of this 
subpart, such hearing shall be granted by the Commission, except that a 
Certificate (Performance) shall become null and void upon cancellation 
or termination of the surety bond, evidence of insurance, guaranty, or 
escrow account.
    (b) A Certificate (Performance) may be denied, revoked, suspended, 
or modified for any of the following reasons:
    (1) Making any willfully false statement to the Commission in 
connection with an application for a Certificate (Performance);
    (2) Circumstances whereby the party does not qualify as financially 
responsible in accordance with the requirements of the Commission;
    (3) Failure to comply with or respond to lawful inquiries, rules, 
regulations or orders of the Commission pursuant to the rules of this 
subpart.
    (c) If the applicant, within 20 days after notice of the proposed 
denial, revocation, suspension, or modification under paragraph (b) of 
this section, requests a hearing to show that such denial, revocation, 
suspension, or modification should not take place, such hearing shall be 
granted by the Commission.



Sec. 540.9  Miscellaneous.

    (a) If any evidence filed with the application does not comply with 
the requirements of this subpart, or for any reason fails to provide 
adequate or satisfactory protection to the public, the Commission will 
notify the applicant stating the deficiencies thereof.
    (b) Any financial evidence submitted to the Commission under the 
rules of this subpart shall be written in the full and correct name of 
the person to whom the Certificate (Performance) is to be issued, and in 
case of a partnership, all partners shall be named.
    (c) The Commission's bond (Form FMC-132A), guaranty (Form FMC-133A), 
and application (Form FMC-131) forms are hereby incorporated as a part 
of the rules of this subpart. Any such forms filed with the Commission 
under this subpart must be in duplicate.
    (d) Any securities or assets accepted by the Commission (from 
applicants, insurers, guarantors, escrow agents, or others) under the 
rules of this subpart must be physically located in the United States.
    (e) Each applicant, insurer, escrow agent and guarantor shall 
furnish a written designation of a person in the United States as legal 
agent for service of process for the purposes of the rules of this 
subpart. Such designation must be acknowledged, in writing, by the 
designee. In any instance in which the designated agent cannot be served 
because of its death, disability, or unavailability, the Secretary, 
Federal Maritime Commission, will be deemed to be the agent for service 
of process. A

[[Page 224]]

party serving the Secretary in accordance with the above provision must 
also serve the Certificant, insurer, escrow agent, or guarantor, as the 
case may be, by registered mail at its last known address on file with 
the Commission.
    (f) [Reserved]
    (g) Financial data filed in connection with the rules of this 
subpart shall be confidential except in instances where information 
becomes relevant in connection with hearings which may be requested by 
applicant pursuant to Sec. 540.8 (a) or (b).
    (h) Every person who has been issued a Certificate (Performance) 
must submit to the Commission a semiannual statement of any changes that 
have taken place with respect to the information contained in the 
application or documents submitted in support thereof. Negative 
statements are required to indicate no change. Such statements must 
cover every 6-month period of the fiscal year immediately subsequent to 
the date of the issuance of the Certificate (Performance), and include a 
statement of the highest unearned passenger vessel revenue accrued for 
each month in the 6-month reporting period. In addition, the statements 
will be due within 30 days after the close of every such 6-month period.
    (i) [Reserved]
    (j) The amount of: (1) Insurance as specified in Sec. 540.5(a), (2) 
the escrow account as specified in Sec. 540.5(b), (3) the guaranty as 
specified in Sec. 540.5(c), or (4) the surety bond as specified in 
Sec. 540.6, shall not be required to exceed 15 million dollars (U.S.).
    (k) Every person in whose name a Certificate (Performance) has been 
issued shall be deemed to be responsible for any unearned passage money 
or deposits in the hands of its agents or of any other person or 
organization authorized by the certificant to sell the certificant's 
tickets. Certificants shall promptly notify the Commission of any 
arrangements, including charters and subcharters, made by it or its 
agent with any person pursuant to which the certificant does not assume 
responsibility for all passenger fares and deposits collected by such 
person or organization and held by such person or organization as 
deposits or payment for services to be performed by the certificant. If 
responsibility is not assumed by the certificant, the certificant also 
must inform such person or organization of the certification 
requirements of Public Law 89-777 and not permit use of its name or 
tickets in any manner unless and until such person or organization has 
obtained the requisite Certificate (Performance) from the Commission.

[49 FR 36313, Sept. 14, 1984, as amended at 55 FR 34568, Aug. 23, 1990]

                              Form FMC-131

                       FEDERAL MARITIME COMMISSION

                          Washington, DC 20573

         Application for Certificate of Financial Responsibility

    In compliance with the provisions of Public Law 89-777 and 46 CFR 
part 540, application is hereby made for a Certificate of Financial 
Responsibility (check one or both as applicable):
    [  ] for indemnification of passengers for nonperformance. [  ] 
Initial application [  ] Certificate has previously been applied for (if 
so, give date of application and action taken thereon).
    [  ] to meet liability incurred for death or injury to passengers or 
other persons. [  ] Initial application [  ] Certificate has previously 
been applied for (if so, give date of application and action taken 
thereon).

                              Instructions

    Submit two (2) typed copies of the application to the Secretary, 
Federal Maritime Commission, Washington, DC 20573. The application is in 
four parts: Part I--General; Part II--Performance; Part III--Casualty 
and Part IV--Declaration. Applicants must answer all questions in part I 
and part IV, then parts II and/or part III as appropriate. Instructions 
relating to part II and part III are contained at the beginning of the 
respective part. If the information required to be submitted under 46 
CFR part 540 has been previously submitted under other rules and 
regulations of the Commission, state when and for what reason such 
information was submitted. If previously submitted, it is not necessary 
to resubmit. If additional space is required, supplementary sheets may 
be attached.

                             Part I--General

                          Answer All Questions

    1. (a) Legal business name:

[[Page 225]]

    (b) English equivalent of legal name if customarily written in 
language other than English:
    (c) Trade name or names used:
    2. (a) State applicant's legal form of organization, i.e., whether 
operating as an individual, corporation, partnership, association, joint 
stock company, business trust, or other organized group of persons 
(whether incorporated or not), or as a receiver, trustee, or other 
liquidating agent, and describe current business activities and length 
of time engaged therein.
    (b) If a corporation, association, joint stock company, business 
trust, or other organization, give:
    Name of State or country in which incorporated or organized.
    Date of the incorporation or organization.
    (c) If a partnership, give name and address of each partner:
    3. Give following information regarding any person or company 
controlling, controlled by, or under common control with you (answer 
only if applying as a self-insurer under part II or part III).

------------------------------------------------------------------------
                                                         Business and
              Name                      Address         relationship to
                                                              you
------------------------------------------------------------------------
                                  ..................  ..................
                                  ..................  ..................
------------------------------------------------------------------------

    4. In relation to the passenger transportation engaged in by you to 
or from U.S. ports:
    Do you own all the vessels? [  ] Yes [  ] No (If ``No'' indicate the 
nature of the arrangements under which those not owned by you are 
available to you (e.g., bareboat, time, voyage, or other charter, or 
arrangement).)
    5. Name of each passenger vessel having accommodations for 50 or 
more passengers and embarking passengers at U.S. ports:

----------------------------------------------------------------------------------------------------------------
                                                                                         Maximum number of berth
                 Name                    Country of registry        Registration No.           or stateroom
                                                                                              accommodations
----------------------------------------------------------------------------------------------------------------
                                       .......................  .......................  .......................
                                       .......................  .......................  .......................
----------------------------------------------------------------------------------------------------------------

    6. Submit a copy of passenger ticket or other contract evidencing 
the sale of passenger transportation.
    7. Name and address of applicant's U.S. agent or other person 
authorized to accept legal service in the United States.

                          Part II--Performance

    Answer items 8-15 if applying for Certificate of Financial 
Responsibility for Indemnification of Passengers for Nonperformance. If 
you are filing evidence of insurance, escrow account, guaranty or surety 
bond under subpart A of 46 CFR part 540 and providing at least fifteen 
(15) million dollars (U.S.) of coverage, you need not answer questions 
10-15.
    8. If you are providing at least fifteen (15) million dollars (U.S.) 
of coverage, state type of evidence and name and address of applicant's 
insurer, escrow agent, guarantor or surety (as appropriate).
    9.* A Certificate (Performance) is desired for the following 
proposed passenger voyage or voyages: (Give itinerary and indicate 
whether the Certificate is for a single voyage, multiple voyages or all 
voyages scheduled annually.)
---------------------------------------------------------------------------

    * The filing of sailing schedules will be acceptable in answers to 
this question.

------------------------------------------------------------------------
             Vessel                   Voyage date      Voyage itinerary
------------------------------------------------------------------------
                                  ..................  ..................
                                  ..................  ..................
------------------------------------------------------------------------

    10. Items 11-15 are optional methods; answer only the one item which 
is applicable to this application. Check the appropriate box below:
    [  ] Insurance (item 11).
    [  ] Escrow (item 12).
    [  ] Surety bond (item 13).
    [  ] Guaranty (item 14).
    [  ] Self-insurer (item 15).
    11. (a) Total amount of performance insurance which is to be 
computed in accordance with 46 CFR 540.5. (Evidence of insurance must be 
filed with the Federal Maritime Commission before a Certificate 
(Performance) may be issued.)
    (b) Method by which insurance amount is determined (attach data 
substantiating that amount is not less than that prescribed in 46 CFR 
540.5).
    (c) Name and address of applicant's insurer for performance policy.
    12. (a) Name and address of applicant's escrow agent. (Applicant may 
pledge cash or U.S. Government securities, in lieu of a surety bond, to 
fulfill the indemnification provisions of Pub. L. 89-777.)
    (b) Total escrow deposit which is to be computed in accordance with 
46 CFR 540.5. (Escrow agreement must be filed with the Federal Maritime 
Commission before a Certificate (Performance) will be issued.) Cash $--
----. U.S. Government Securities $------.
    (c) Method by which escrow amount is determined (attach data 
substantiating that amount is not less than that prescribed by 46 CFR 
540.5).
    13. (a) Total amount of surety bond in accordance with 46 CFR 540.6. 
(The bond must be filed with the Federal Maritime Commission before a 
Certificate (Performance) may be issued.)
    (b) Method by which bond amount is determined (attach data 
substantiating that amount is not less than that prescribed in 46 CFR 
540.6).

[[Page 226]]

    (c) Name and address of applicant's surety on performance bond.
    14. (a) Total amount of guaranty which is to be computed in 
accordance with 46 CFR 540.5. (Guaranty must be filed with the Federal 
Maritime Commission before a Certificate (Performance) may be issued.)
    (b) Method by which guaranty amount is determined (attach data 
substantiating that amount is not less than that prescribed in 46 CFR 
540.5).
    (c) Name and address of applicant's guarantor.
    15. If applicant intends to qualify as a self-insurer for a 
Certificate (Performance) under 46 CFR 540.5, attach all data, 
statements, and documentation required therein.

                           Part III--Casualty

      Answer Items 16-22 if Applying for Certificate of Financial 
    Responsibility to Meet Liability Incurred for Death or Injury to 
                       Passengers or Other Persons

    16. (a) Name of passenger vessel subject to section 2 of Public Law 
89-777 operated by you to or from U.S. ports which has largest number of 
berth or stateroom accommodations.
    (b) State the maximum number of berth or stateroom accommodations.
    17. Amount of death or injury liability coverage based on number of 
accommodations aboard vessel named in item 16 above, calculated in 
accordance with 46 CFR 540.24.

  Items 18-22 Are Optional Methods: Answer Only the One Item Which is 
                     Applicable to This Application

    18. (a) Total amount of applicant's insurance. (Evidence of the 
insurance must be filed with the Federal Maritime Commission before a 
Certificate (Casualty) will be issued.)
    (b) Name and address of applicant's insurer.
    19. (a) Total amount of surety bond. (Bond must be filed with the 
Federal Maritime Commission before a Certificate (Casualty) will be 
issued.)
    (b) Name and address of applicant's surety for death or injury bond.
    20. (a) Total amount of escrow deposit. (Escrow agreement must be 
filed with the Federal Maritime Commission before a Certificate 
(Casualty) will be issued.)
    (b) Name and address of applicant's escrow agent.
    21. (a) Total amount of guaranty. (Guaranty must be filed with the 
Federal Maritime Commission before a Certificate (Casualty) will be 
issued.)
    (b) Name and address of applicant's guarantor.
    22. If applicant intends to qualify as a self-insurer for a 
Certificate (Casualty) under 46 CFR 540.24(c), attach all data, 
statements and documentation required therein.

                          Part IV--Declaration

    This application is submitted by or on behalf of
    (a) Name.
    (b) Name and title of official.
    (c) Home office-- Street and number.
    (d) City.
    (e) State or country.
    (f) ZIP Code.
    (g) Principal office in the United States--Street and number.
    (h) City.
    (i) State.
    I declare that I have examined this application, including 
accompanying schedules and statements, and to the best of my knowledge 
and belief, it is true, correct and complete.

By_____________________________________________________________________
          (Signature of official)

_______________________________________________________________________
                    (Date)
Comments:

[49 FR 36313, Sept. 14, 1984, as amended at 55 FR 34568, Aug. 23, 1990]

                              Form FMC-132A

                       FEDERAL MARITIME COMMISSION

Surety Co. Bond No. --------
FMC Certificate No. --------

             Passenger Vessel Surety Bond (46 CFR Part 540)

    Know all men by these presents, that we ------------ (Name of 
applicant), of ------------ (City), ------------ (State and country), as 
Principal (hereinafter called Principal), and ------------ (Name of 
surety), a company created and existing under the laws of ------------ 
(State and country) and authorized to do business in the United States 
as Surety (hereinafter called Surety) are held and firmly bound unto the 
United States of America in the penal sum of ------------, for which 
payment, well and truly to be made, we bind ourselves and our heirs, 
executors, administrators, successors, and assigns, jointly and 
severally, firmly by these presents.
    Whereas the Principal intends to become a holder of a Certificate 
(Performance) pursuant to the provisions of subpart A of part 540 of 
title 46, Code of Federal Regulations and has elected to file with the 
Federal Maritime Commission such a bond to insure financial 
responsibility and the supplying transportation and other services 
subject to subpart A of part 540 of title 46, Code of Federal 
Regulations, in accordance with the ticket contract between the 
Principal and the passenger, and

[[Page 227]]

    Whereas this bond is written to assure compliance by the Principal 
as an authorized holder of a Certificate (Performance) pursuant to 
subpart A of part 540 of title 46, Code of Federal Regulations, and 
shall inure to the benefit of any and all passengers to whom the 
Principal may be held legally liable for any of the damages herein 
described.
    Now, therefore, the condition of this obligation is such that if the 
Principal shall pay or cause to be paid to passengers any sum or sums 
for which the Principal may be held legally liable by reason of the 
Principal's failure faithfully to provide such transportation and other 
accommodations and services in accordance with the ticket contract made 
by the Principal and the passenger while this bond is in effect for the 
supplying of transportation and other services pursuant to and in 
accordance with the provisions of subpart A of part 540 of title 46, 
Code of Federal Regulations, then this obligation shall be void, 
otherwise, to remain in full force and effect.
    The liability of the Surety with respect to any passenger shall not 
exceed the passage price paid by or on behalf of such passenger.
    The liability of the Surety shall not be discharged by any payment 
or succession of payments hereunder, unless and until such payment or 
payments shall amount in the aggregate to the penalty of the bond, but 
in no event shall the Surety's obligation hereunder exceed the amount of 
said penalty. The Surety agrees to furnish written notice to the Federal 
Maritime Commission forthwith of all suits filed, judgments rendered, 
and payments made by said Surety under this bond.
    This bond is effective the ---- day of --------, 19--, 12:01 a.m., 
standard time at the address of the Principal as stated herein and shall 
continue in force until terminated as hereinafter provided. The 
Principal or the Surety may at any time terminate this bond by written 
notice sent by certified mail to the other and to the Federal Maritime 
Commission at its office in Washington, D.C., such termination to become 
effective thirty (30) days after actual receipt of said notice by the 
Commission, except that no such termination shall become effective while 
a voyage is in progress. The Surety shall not be liable hereunder for 
any refunds due under ticket contracts made by the Principal for the 
supplying of transportation and other services after the termination of 
this bond as herein provided, but such termination shall not affect the 
liability of the Surety hereunder for refunds arising from ticket 
contracts made by the Principal for the supplying of transportation and 
other services prior to the date such termination becomes effective.
    In witness whereof, the said Principal and Surety have executed this 
instrument on ---- day of --------, 19--.

                                PRINCIPAL

Name___________________________________________________________________
  By___________________________________________________________________
          (Signature and title)

Witness________________________________________________________________

                                 SURETY

  [SEAL] Name__________________________________________________________
By_____________________________________________________________________
          (Signature and title)

Witness________________________________________________________________
    Only corporations or associations of individual insurers may qualify 
to act as surety, and they must establish to the satisfaction of the 
Federal Maritime Commission legal authority to assume the obligations of 
surety and financial ability to discharge them.

                              Form FMC-133A

                       FEDERAL MARITIME COMMISSION

Guaranty No. --------
FMC Certificate No. --------

 Guaranty in Respect of Liability for Nonperformance, Section 3 of the 
                                   Act

    1. Whereas ------------ (Name of applicant) (Hereinafter referred to 
as the ``Applicant'') is the Owner or Charterer of the passenger 
Vessel(s) specified in the annexed Schedule (``the Vessels''), which are 
or may become engaged in voyages to or from United States ports, and the 
Applicant desires to establish its financial responsibility in 
accordance with section 3 of Pub. L. 89-777, 89th Congress, approved 
November 6, 1966 (``the Act'') then, provided that the Federal Maritime 
Commission (``FMC'') shall have accepted, as sufficient for that 
purpose, the Applicant's application, supported by this Guaranty, and 
provided that FMC shall issue to the Applicant a Certificate 
(Performance) (``Certificate''), the undersigned Guarantor hereby 
guarantees to discharge the Applicant's legal liability to indemnify the 
passengers of the Vessels for nonperformance of transportation within 
the meaning of section 3 of the Act, in the event that such legal 
liability has not been discharged by the Applicant within 21 days after 
any such passenger has obtained a final judgment (after appeal, if any) 
against the Applicant from a United States Federal or State Court of 
competent jurisdiction, or has become entitled to payment of a specified 
sum by virtue of a compromise settlement agreement made with the 
Applicant, with the approval of the Guarantor, whereby, upon payment of 
the agreed sum, the Applicant is to be fully, irrevocably and 
unconditionally discharged from all further liability to such passenger 
for such nonperformance.
    2. The Guarantor's liability under this Guaranty in respect to any 
passenger shall

[[Page 228]]

not exceed the amount paid by such passenger; and the aggregate amount 
of the Guarantor's liability under this Guaranty shall not exceed $----
--.
    3. The Guarantor's liability under this Guaranty shall attach only 
in respect of events giving rise to a cause of action against the 
Applicant, in respect of any of the Vessels, for nonperformance of 
transportation within the meaning of Section 3 of the Act, occurring 
after the Certificate has been granted to the Applicant, and before the 
expiration date of this Guaranty, which shall be the earlier of the 
following dates:
    (a) The date whereon the Certificate is withdrawn, or for any reason 
becomes invalid or ineffective; or
    (b) The date 30 days after the date of receipt by FMC of notice in 
writing (including telex or cable) that the Guarantor has elected to 
terminate this Guaranty except that:
    (i) If, on the date which would otherwise have been the expiration 
date under the foregoing provisions (a) or (b) of this Clause 3, any of 
the Vessels is on a voyage whereon passengers have been embarked at a 
United States port, then the expiration date of this Guaranty shall, in 
respect of such Vessel, be postponed to the date on which the last 
passenger on such voyage shall have finally disembarked; and
    (ii) Such termination shall not affect the liability of the 
Guarantor for refunds arising from ticket contracts made by the 
Applicant for the supplying of transportation and other services prior 
to the date such termination becomes effective.
    4. If, during the currency of this Guaranty, the Applicant requests 
that a vessel owned or operated by the Applicant, and not specified in 
the annexed Schedule, should become subject to this Guaranty, and if the 
Guarantor accedes to such request and so notifies FMC in writing 
(including telex or cable), then, provided that within 30 days of 
receipt of such notice, FMC shall have granted a Certificate, such 
Vessel shall thereupon be deemed to be one of the Vessels included in 
the said Schedule and subject to this Guaranty.
    5. The Guarantor hereby designates ------------, with offices at --
----------, as the Guarantor's legal agent for service of process for 
the purposes of the Rules of the Federal Maritime Commission, subpart A 
of part 540 of title 46, Code of Federal Regulations, issued under 
Section 3 of Pub. L. 89-777 (80 Stat. 1357, 1358), entitled ``Security 
for the Protection of the Public.''

_______________________________________________________________________

          (Place and Date of Execution)

_______________________________________________________________________

          (Type Name of Guarantor)

_______________________________________________________________________

          (Type Address of Guarantor)

By_____________________________________________________________________

          (Signature and Title)

               Schedule of Vessels Referred to in Clause 1

       Vessels Added to This Schedule in Accordance With Clause 4

  Appendix A--Example of Escrow Agreement for Use Under 46 CFR 540.5(b)

                            Escrow Agreement

    1. Legal name(s), state(s) of incorporation, description of 
business(es), trade name(s) if any, and domicile(s) of each party.
    2. Whereas, [name of the passenger vessel operator] (``Operator'') 
and/or [name of the issuer of the passenger ticket] (``Ticket Issuer'') 
wish(es) to establish an escrow account to provide for the 
indemnification of certain of its passengers utilizing [name vessel(s)] 
in the event of nonperformance of transportation to which such 
passengers would be entitled, and to establish the Operator's and/or 
Ticket Issuer's financial responsibility therefor; and
    3. Whereas, [name of escrow agent] (``the Escrow Agent'') wishes to 
act as the escrow agent of the escrow account established hereunder.
    4. The Operator and/or Ticket Issuer will determine, as of the day 
prior to the opening date, the total amounts of U.S. unearned passenger 
revenues (``UPR'') which it had in its possession. Unearned passenger 
revenues are defined as [incorporate the elements of 46 CFR 540.2(i)].
    5. The Operator and/or Ticket Issuer shall on the opening date 
deposit an amount equal to UPR as determined above, plus a cash amount 
equal to [amount equal to no less than 10% of the Operator's and/or 
Ticket Issuer's UPR on the date within the 2 fiscal years immediately 
prior to the filing of the escrow agreement which reflects the greatest 
amount of UPR, except that the Commission, for good cause shown, may 
consider a time period other than the previous 2-fiscal-year requirement 
or other methods acceptable to the Commission to determine the amount of 
coverage required] (``initial deposit'').
    6. The Operator and/or Ticket Issuer may at any time deposit 
additional funds into the account.
    7. The Operator and/or Ticket Issuer shall, at the end of each 
business week, recompute UPR by first computing:
    A. the amount by which UPR has decreased due to: (1) Refunds due to 
cancellations; (2) amount of cancellation fees assessed in connection 
with (1) above; and (3) the amount earned from completed cruises; and

[[Page 229]]

    B. the amount by which UPR has increased due to receipts from 
passengers for future water transportation and all other related 
accommodations and services not yet performed.
    The difference between the above amounts is the amount by which UPR 
has increased or decreased (``new UPR''). If the new UPR plus the amount 
of the initial deposit exceeds the amount in the escrow account, the 
Operator and/or Ticket Issuer shall deposit the funds necessary to make 
the account balance equal to UPR plus the initial deposit. If the 
account balance exceeds new UPR plus the initial deposit, the balance 
shall be available to the Operator and/or Ticket Issuer. The information 
computed in paragraph 7 shall be furnished to the Commission and the 
Escrow Agent in the form of a recomputation certificate signed and 
certified by a competent officer of the Operator and/or Ticket Issuer. 
Copies sent to the Commission are to be addressed to the Director, 
Bureau of Tariffs, Certification and Licensing, Federal Maritime 
Commission, Washington, D.C. 20573.
    8. A monthly report shall be prepared by the Escrow Agent and 
provided to the Operator and/or Ticket Issuer and the Commission within 
15 days of the end of each month and shall list the investment assets of 
the account, their original cost, their current market value, and the 
beginning and ending balance of the account.
    9. The Operator's and/or Ticket Issuer's independent auditors shall 
prepare quarterly reports, such reports to be furnished to the Escrow 
Agent and the Commission, and any shortfall is to be covered within one 
business day.
    10. The Escrow Agent shall invest the funds of the account in 
qualified investments as directed by the Operator and/or Ticket Issuer. 
Some examples of qualified investments are, to the extent permitted by 
law:
    (a) Government obligations of the United States or its agencies;
    (b) Certificates of deposit, time deposits or acceptances of any 
bank, savings institution or trust company whose debt obligations are in 
the two highest categories rated by Standard and Poor's or Moody's, or 
which is itself rated in the two highest categories by Keefe, Bryette 
and Woods;
    (c) Commercial paper similarly rated;
    (d) Certificates or time deposits issued by any bank, savings 
institution or trust company when fully insured by the FDIC or the 
FSLIC;
    (e) Money market funds utilizing securities of the same quality as 
above; and/or
    (f) Corporate bonds of the three highest categories, as rated by 
Standard and Poor's or Moody's.
    11. Income derived from the investments shall be credited to the 
escrow account.
    12. The purpose of the escrow agreement is to establish the 
financial responsibility of the Operator and/or Ticket Issuer pursuant 
to section 3 of Public Law 89-777, approved November 5, 1966, and the 
account is to be utilized to discharge the Operator's and/or Ticket 
Issuer's legal liability to indemnify passengers for nonperformance of 
transportation via the [name of vessel(s)]. The Escrow Agent is to make 
such payments on instructions from the Operator and/or Ticket Issuer, 
or, in the absence of such instructions, 21 says after final judgment 
against the Operator and/or Ticket Issuer in a U.S. Federal or State 
court having jurisdiction. The Operator and/or Ticket Issuer will pledge 
to each passenger holding a ticket for future passage on the Operator's/
Ticket Issuer's vessel(s) an interest in the Escrow Account equal to the 
Fares amount shown on the face of such ticket. The Escrow Agent agrees 
to act as nominee for each passenger until transportation is performed 
or until passenger has been compensated.
    13. Escrow Agent shall waive right to offset.
    14. The Operator and/or Ticket Issuer will indemnify and hold Escrow 
Agent harmless.
    15. Statement of the parties' agreement concerning warranty of bona 
fides by the Operator and/or Ticket Issuer and Escrow Agent.
    16. Statement of the parties' agreement concerning fees to be paid 
by the Operator and/or Ticket Issuer to Escrow Agent, reimbursable 
expenses to be paid by the Operator and/or Ticket Issuer to Escrow 
Agent. A statement that fees for subsequent terms of agreement are to be 
negotiated.
    17. Statement of the parties' agreement concerning the term of 
agreement and renewal/termination procedures.
    18. Statement of the parties' agreement concerning procedures for 
appointment of successor Escrow Agent.
    19. Statement that disposition of funds on termination shall be to 
the Operator and/or Ticket Issuer, if evidence of the Commission's 
acceptance of alternative evidence of financial responsibility is 
furnished; otherwise, all passage fares held for uncompleted voyages are 
to be returned to the passengers. The Operator and/or Ticket Issuer 
shall pay all fees previously earned to the Escrow Agent.
    20. The agreement may be enforced by the passengers, the Escrow 
Agent, the Operator and/or Ticket Issuer or by the Federal Maritime 
Commission.
    21. All assets maintained under the escrow agreement shall be 
physically located in the United Sates and may not be transferred, sold, 
assigned, encumbered, etc., except as provided in the agreement.
    22. The Commission has the right to examine the books and records of 
the Operator and/or Ticket Issuer and the Escrow Agent,

[[Page 230]]

as related to the escrow account, and the agreement may not be modified 
unless agreed in writing by the Operator and/or Ticket Issuer and Escrow 
Agent and approved in writing by the Commission.

[57 FR 41891, Sept. 14, 1992]



Subpart B--Proof of Financial Responsibility, Bonding and Certification 
  of Financial Responsibility to Meet Liability Incurred for Death or 
            Injury to Passengers or Other Persons on Voyages



Sec. 540.20  Scope.

    The regulations contained in this subpart set forth the procedures 
whereby owners or charterers of vessels having berth or stateroom 
accommodations for 50 or more passengers and embarking passengers at 
U.S. ports shall establish their financial responsibility to meet any 
liability which may be incurred for death or injury to passengers or 
other persons on voyages to or from U.S. ports. Included also are the 
qualifications required by the Commission for issuance of a Certificate 
(Casualty) and the basis for the denial, revocation, suspension, or 
modification of such Certificates.



Sec. 540.21  Definitions.

    As used in this subpart, the following terms shall have the 
following meanings:
    (a) Person includes individuals, corporations, partnerships, 
associations, and other legal entities existing under or authorized by 
the laws of the United States or any state thereof or the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands or any 
territory or possession of the United States, or the laws of any foreign 
country.
    (b) Vessel means any commercial vessel having berth or stateroom 
accommodations for 50 or more passengers and embarking passengers at 
U.S. ports.
    (c) Commission means the Federal Maritime Commission.
    (d) United States includes the Commonwealth of Puerto Rico, the 
Virgin Islands or any territory or possession of the United States.
    (e) Berth or stateroom accommodations or passenger accommodations 
includes all temporary and all permanent passenger sleeping facilities.
    (f) Certificate (Casualty) means a Certificate of Financial 
Responsibility to Meet Liability Incurred for Death or Injury to 
Passengers or Other Persons on Voyages issued pursuant to this subpart.
    (g) Voyage means voyage of a vessel to or from U.S. ports.
    (h) Insurer means any insurance company, underwriter, corporation or 
association of underwriters, ship owners' protection and indemnity 
association, or other insurer acceptable to the Commission.
    (i) Evidence of insurance means a policy, certificate of insurance, 
cover note, or other evidence of coverage acceptable to the Commission.
    (j) For the purpose of determining compliance with Sec. 540.22, 
passengers embarking at United States ports means any persons, not 
necessary to the business, operation, or navigation of a vessel, whether 
holding a ticket or not, who board a vessel at a port or place in the 
United States and are carried by the vessel on a voyage from that port 
or place.



Sec. 540.22  Proof of financial responsibility, when required.

    No vessel shall embark passengers at U.S. ports unless a Certificate 
(Casualty) has been issued to or covers the owner or charterer of such 
vessel.



Sec. 540.23  Procedure for establishing financial responsibility.

    (a) In order to comply with section 2 of Pub. L. 89-777 (80 Stat. 
1357, 1358) enacted November 6, 1966, there must be filed an Application 
on Form FMC-131 for a Certificate of Financial Responsibility to Meet 
Liability Incurred for Death or Injury to Passengers or Other Persons on 
Voyages. Copies of Form FMC-131 may be obtained from the Secretary, 
Federal Maritime Commission, Washington, DC 20573.
    (b) An application for a Certificate (Casualty) shall be filed in 
duplicate with the Secretary, Federal Maritime Commission, by the vessel 
owner or charterer at least 60 days in advance of

[[Page 231]]

the sailing. Late filing of the application will be permitted only for 
good cause shown. All applications and evidence required to be filed 
with the Commission shall be in English, and any monetary terms shall be 
expressed in terms of U.S. currency. The Commission shall have the 
privilege of verifying any statements made or any evidence submitted 
under the rules of this subpart. An application for a Certificate 
(Casualty), excluding an application for the addition or substitution of 
a vessel to the applicant's fleet, shall be accompanied by a filing fee 
remittance of $938. An application for a Certificate (Casualty) for the 
addition or substitution of a vessel to the applicant's fleet shall be 
accompanied by a filing fee remittance of $469.
    (c) The application shall be signed by a duly authorized officer or 
represenative of the applicant with a copy of evidence of his authority. 
In the event of any material change in the facts as reflected in the 
application, an amendment to the application shall be filed no later 
than five (5) days following such change. For the purpose of this 
subpart, a material change shall be one which: (1) Results in a decrease 
in the amount submitted to establish financial responsibility to a level 
below that required to be maintained under the rules of this subpart, or 
(2) requires that the amount to be maintained be increased above the 
amount submitted to establish financial responsibility. Notice of the 
application for, issuance, denial, revocation, suspension, or 
modification of any such Certificate shall be published in the Federal 
Register.

[49 FR 36313, Sept. 14, 1984, as amended at 59 FR 59172, Nov. 16, 1994; 
63 FR 50537, Sept. 22, 1998]

    Effective Date Note:  At 63 FR 50537, Sept. 22, 1998, the last 
sentence in Sec. 540.23(a) and the last sentence in Sec. 540.23(b) were 
revised, and another sentence was added to the end of Sec. 540.23(b), 
effective Nov. 2, 1998. For the convenience of the user, the superseded 
text is set forth as follows:

Sec. 540.23  Procedure for establishing financial responsibility.

    (a) * * * Copies of Form FMC-131 may be obtained from the Secretary, 
Federal Maritime Commission, Washington, DC 20573, or at the 
Commission's offices at New York, NY; New Orleans, LA; San Francisco, 
CA; Miami, FL; Los Angeles, CA; Hato Rey, PR; and Chicago, IL.
    (b) * * * An application for a Certificate (Casualty) shall be 
accompanied by a filing fee remittance of $830.

                                * * * * *



Sec. 540.24  Insurance, surety bonds, self-insurance, guaranties, and escrow accounts.

    Evidence of adequate financial responsibility for the purposes of 
this subpart may be established by one of the following methods:
    (a) Filing with the Commission evidence of insurance issued by an 
insurer providing coverage for liability which may be incurred for death 
or injury to passengers or other persons on voyages in an amount based 
upon the number of passenger accommodations aboard the vessel, 
calculated as follows:

Twenty thousand dollars for each passenger accommodation up to and 
including 500; plus
Fifteen thousand dollars for each additional passenger accommodation 
between 501 and 1,000; plus
Ten thousand dollars for each additional passenger accommodation between 
1,001 and 1,500; plus
Five thousand dollars for each passenger accommodation in excess of 
1,500;



Except that, if the applicant is operating more than one vessel subject 
to this subpart, the amount prescribed by this paragraph shall be based 
upon the number of passenger accommodations on the vessel being so 
operated which has the largest number of passenger accommodations.
    (1) Termination or cancellation of the evidence of insurance, 
whether by the assured or by the insurer, and whether for nonpayment of 
premiums, calls or assessments, or for other cause, shall not be 
effected: (i) Until notice in writing has been given to the assured or 
to the insurer and to the Secretary of the Commission at its office in 
Washington, DC 20573, by certified mail, and (ii) until after 30 days 
expire from the date notice is actually received by the Commissioner, or 
until after the Commission revokes the Certificate (Casualty), whichever 
occurs

[[Page 232]]

first. Notice of termination or cancellation to the assured or insurer 
shall be simultaneous to such notice given to the Commission. The 
insurer shall remain liable for claims covered by said evidence of 
insurance arising by virtue of an event which had occurred prior to the 
effective date of said termination or cancellation. No such termination 
or cancellation shall become effective while a voyage is in progress.
    (2) The insolvency or bankruptcy of the assured shall not constitute 
a defense to the insurer as to claims included in said evidence of 
insurance and in the event of said insolvency or bankruptcy, the insurer 
agrees to pay any unsatisfied final judgments obtained on such claims.
    (3) No insurance shall be acceptable under these rules which 
restricts the liability of the insurer where privity of the owner or 
charterer has been shown to exist.
    (4) Paragraphs (a)(1) through (a)(3) of this section shall apply to 
the guaranty as specified in paragraph (d) of this section.
    (b) Filing with the Commission a surety bond on Form FMC-132B issued 
by a bonding company authorized to do business in the United States and 
acceptable to the Commission. Such surety bond shall evidence coverage 
for liability which may be incurred for death or injury to passengers or 
other persons on voyages in an amount calculated as in paragraph (a) of 
this section, and shall not be terminated while a voyage is in progress. 
The requirements of Form FMC-132B, however, may be amended by the 
Commission in a particular case for good cause.
    (c) Filing with the Commission for qualification as a self-insurer 
such evidence acceptable to the Commission as will demonstrate continued 
and stable passenger operations over an extended period of time in the 
foreign or domestic trade of the United States. In addition, applicant 
must demonstrate financial responsibility by maintenance of working 
capital and net worth, each in an amount calculated as in paragraph (a) 
of this section. The Commission will take into consideration all current 
contractual requirements with respect to the maintenance of working 
capital and/or net worth to which the applicant is bound. Evidence must 
be submitted that the working capital and net worth required above are 
physically located in the United States. This evidence of financial 
responsibility shall be supported by and subject to the following which 
are to be submitted on a continuing basis for each year or portion 
thereof while the Certificate (Casualty) is in effect:
    (1) A current quarterly balance sheet, except that the Commission, 
for good cause shown, may require only an annual balance sheet;
    (2) A current quarterly statement of income and surplus except that 
the Commission, for good cause shown, may require only an annual 
statement of income and surplus;
    (3) An annual current balance sheet and an annual current statement 
of income and surplus to be certified by appropriate certified public 
accountants;
    (4) An annual current statement of the book value or current market 
value of any assets physically located within the United States together 
with a certification as to the existence and amount of any encumbrances 
thereon;
    (5) An annual current credit rating report by Dun and Bradstreet or 
any similar concern found acceptable to the Commission;
    (6) A list of all contractual requirements or other encumbrances 
(and to whom the applicant is bound in this regard) relating to the 
maintenance of working capital and net worth;
    (7) All financial statements required to be submitted under this 
section shall be due within a reasonable time after the close of each 
pertinent accounting period;
    (8) Such additional evidence of financial responsibility as the 
Commission may deem necessary in appropriate cases.
    (d) Filing with the Commission a guaranty on Form FMC-133B by a 
guarantor acceptable to the Commission. Any such guaranty shall be in an 
amount calculated as in paragraph (a) of this section. The requirements 
of Form FMC-133B, however, may be amended by the Commission in a 
particular case for good cause.
    (e) Filing with the Commission evidence of an escrow account, 
acceptable to the Commission, the amount of such

[[Page 233]]

account to be calculated as in paragraph (a) of this section.
    (f) The Commission will, for good cause shown, consider any 
combination of the alternatives described in paragraphs (a) through (e) 
of this section for the purpose of establishing financial 
responsibility.

[49 FR 36313, Sept. 14, 1984, as amended at 55 FR 1824, Jan. 19, 1990]



Sec. 540.25  Evidence of financial responsibility.

    Where satisfactory proof of financial responsibility has been 
established, a Certificate (Casualty) covering specified vessels shall 
be issued evidencing the Commission's finding of adequate financial 
responsibility to meet any liability which may be incurred for death or 
injury to passengers or other persons on voyages. The period covered by 
the certificate shall be indeterminate unless a termination date has 
been specified therein.



Sec. 540.26  Denial, revocation, suspension, or modification.

    (a) Prior to the denial, revocation, suspension, or modification of 
a Certificate (Casualty), the Commission shall advise the applicant of 
its intention to deny, revoke, suspend, or modify, and shall state the 
reasons therefor. If the applicant, within 20 days after the receipt of 
such advice, requests a hearing to show that the evidence of financial 
responsibility filed with the Commission does meet the rules of this 
subpart, such hearing shall be granted by the Commission, except that a 
Certificate (Casualty) shall become null and void upon cancellation or 
termination of evidence of insurance, surety bond, guaranty, or escrow 
account.
    (b) A Certificate (Casualty) may be denied, revoked, suspended, or 
modified for any of the following reasons:
    (1) Making any willfully false statement to the Commission in 
connection with an application for a Certificate (Casualty);
    (2) Circumstances whereby the party does not qualify as financially 
responsible in accordance with the requirements of the Commission;
    (3) Failure to comply with or respond to lawful inquiries, rules, 
regulations, or orders of the Commission pursuant to the rules of this 
subpart.
    (c) If the applicant, within 20 days after notice of the proposed 
denial, revocation, suspension, or modification under paragraph (b) of 
this section, requests a hearing to show that such denial, revocation, 
suspension, or modification should not take place, such hearing shall be 
granted by the Commission.



Sec. 540.27  Miscellaneous.

    (a) If any evidence filed with the application does not comply with 
the requirements of this subpart, or for any reason, fails to provide 
adequate or satisfactory protection to the public, the Commission will 
notify the applicant stating the deficiencies thereof.
    (b) Any financial evidence submitted to the Commission under the 
rules of this subpart shall be written in the full and correct name of 
the person to whom the Certificate (Casualty) is to be issued, and in 
case of a partnership, all partners shall be named.
    (c) The Commission's bond (Form FMC-132B), guaranty (Form FMC-133B), 
and application (Form FMC-131 as set forth in subpart A of this part) 
forms are hereby incorporated as a part of the rules of this subpart. 
Any such forms filed with the Commission under this subpart must be in 
duplicate.
    (d) Any securities or assets accepted by the Commission (from 
applicants, insurers, guarantors, escrow agents, or others) under the 
rules of this subpart must be physically located in the United States.
    (e) Each applicant, insurer, escrow agent, and guarantor shall 
furnish a written designation of a person in the United States as legal 
agent for service of process for the purposes of the rules of this 
subpart. Such designation must be acknowledged, in writing, by the 
designee. In any instance in which the designated agent cannot be served 
because of death, disability, or unavailability, the Secretary, Federal 
Maritime Commission, will be deemed to be the agent for service of 
process. A party serving the Secretary in accordance with the above 
provision must also serve the certificant, insurer, escrow agent, or 
guarantor, as the case may be, by registered mail, at its last

[[Page 234]]

known address on file with the Commission.
    (f) In the case of any charter arrangements involving a vessel 
subject to the regulations of this subpart, the vessel owner (in the 
event of a subcharter, the charterer shall file) must within 10 days 
file with the Secretary of the Commission evidence of any such 
arrangement.
    (g) Financial data filed in connection with the rules of this 
subpart shall be confidential except in instances where information 
becomes relevant in connection with hearings which may be requested by 
applicant pursuant to Sec. 540.26(a) or Sec. 540.26(b).
    (h) Every person who has been issued a Certificate (Casualty) must 
submit to the Commission a semiannual statement of any changes that have 
taken place with respect to the information contained in the application 
or documents submitted in support thereof. Negative statements are 
required to indicate no change. Such statements must cover every such 6-
month period commencing with the first 6-month period of the fiscal year 
immediately subsequent to the date of the issuance of the Certificate 
(Casualty). In addition, the statements will be due within 30 days after 
the close of every 6-month period.

                              Form FMC-132B

(5-67)

                       FEDERAL MARITIME COMMISSION

Surety Co. Bond No. ------------
FMC Certificate No. ------------

             Passenger Vessel Surety Bond (46 CFR Part 540)

    Know all men by these presents, that We ------------ (Name of 
applicant), of ---------- (City), ------------ (State and country), as 
Principal (hereinafter called Principal), and ------------ (Name of 
surety), a company created and existing under the laws of ------------ 
(State and country) and authorized to do business in the United States, 
as Surety (hereinafter called Surety) are held and firmly bound unto the 
United States of America in the penal sum of ------------, for which 
payment, well and truly to be made, we bind ourselves and our heirs, 
executors, administrators, successors, and assigns, jointly and 
severally, firmly by these presents.
    Whereas, the Principal intends to become a holder of a Certificate 
(Casualty) pursuant to the provisions of subpart B of part 540 of title 
46, Code of Federal Regulations, and has elected to file with the 
Federal Maritime Commission such a bond to insure financial 
responsibility to meet any liability it may incur for death or injury to 
passengers or other persons on voyages to or from U.S. ports, and
    Whereas, this bond is written to assure compliance by the Principal 
as an authorized holder of a Certificate (Casualty) pursuant to subpart 
B of part 540 of title 46, Code of Federal Regulations, and shall inure 
to the benefit of any and all passengers or other persons to whom the 
Principal may be held legally liable for any of the damages herein 
described.
    Now, therefore, the condition of this obligation is such that if the 
Principal shall pay or cause to be paid to passengers or other persons 
any sum or sums for which the Principal may be held legally liable by 
reason of the Principal's failure faithfully to meet any liability the 
Principal may incur for death or injury to passengers or other persons 
on voyages to or from U.S. ports, while this bond is in effect pursuant 
to and in accordance with the provisions of subpart B of part 540 of 
title 46, Code of Federal Regulations, then this obligation shall be 
void, otherwise, to remain in full force and effect.
    The liability of the Surety with respect to any passenger or other 
persons shall in no event exceed the amount of the Principal's legal 
liability under any final judgment or settlement agreement, except that, 
if the aggregate amount of such judgments and settlements exceeds an 
amount computed in accordance with the formula contained in section 2(a) 
of Pub. L. 89-777, then the Surety's total liability under this surety 
bond shall be limited to an amount computed in accordance with such 
formula.
    The Surety agrees to furnish written notice to the Federal Maritime 
Commission forthwith of all suits filed, judgments rendered, and 
payments made by said Surety under this bond.
    This bond is effective the ---- day of --------, 19--, 12:01 a.m., 
standard time, at the address of the Principal as stated herein and 
shall continue in force until terminated as hereinafter provided. The 
Principal or the Surety may at any time terminate this bond by written 
notice sent by certified mail to the other and to the Federal Maritime 
Commission at its Office in Washington, D.C., such termination to become 
effective thirty (30) days after actual receipt of said notice by the 
Commission, except that no such termination shall become effective while 
a voyage is in progress. The Surety shall not be liable hereunder for 
any liability incurred for death or injury to passengers or other 
persons on voyages to or from U.S. ports after the termination of this 
bond as herein

[[Page 235]]

provided, but such termination shall not affect the liability of the 
Surety hereunder for such liability incurred for death or injury to 
passengers or other persons on voyages to or from U.S. ports prior to 
the date such termination becomes effective.
    In witness whereof, the said Principal and Surety have executed this 
instrument on the ---- day of --------, 19--.

                                PRINCIPAL

Name___________________________________________________________________
By_____________________________________________________________________

          (Signature and title)

Witness________________________________________________________________

                                 SURETY

Name___________________________________________________________________
By [SEAL]______________________________________________________________

          (Signature and title)

Witness________________________________________________________________

    Only corporations or associations of individual insurers may qualify 
to act as Surety, and they must establish to the satisfaction of the 
Federal Maritime Commission legal authority to assume the obligations of 
surety and financial ability to discharge them.

                              Form FMC-133B

(5-67)

                       FEDERAL MARITIME COMMISSION

Guaranty No.___________________________________________________________
FMC Certificate No.____________________________________________________

 Guaranty in Respect of Liability for Death or Injury, Section 2 of the 
                                   Act

    1. Whereas ------------ (Name of Applicant) (Hereinafter referred to 
as the ``Applicant'') is the Owner or Charterer of the passenger 
Vessel(s) specified in the annexed Schedule (``the Vessels''), which are 
or may become engaged in voyages to or from U.S. ports, and the 
Applicant desires to establish its financial responsibility in 
accordance with section 2 of Public Law 89-777, 89th Congress, approved 
November 6, 1966 (``the Act'') then, provided that the Federal Maritime 
Commission (``FMC'') shall have accepted, as sufficient for that 
purpose, the Applicant's application, supported by this Guaranty, and 
provided that FMC shall issue to the Applicant a Certificate (Casualty) 
(``Certificate''), the undersigned Guarantor hereby guarantees to 
discharge the applicant's legal liability in respect of claims for 
damages for death or injury to passengers or other persons on voyages of 
the Vessels to or from U.S. ports, in the event that such legal 
liability has not been discharged by the Applicant within 21 days after 
any such passenger or other person, or, in the event of death, his or 
her personal representative, has obtained a final judgment (after 
appeal, if any) against the Applicant from a U.S. Federal or State Court 
of competent jurisdiction, or has become entitled to payment of a 
specified sum by virtue of a compromise settlement agreement made with 
the Applicant, with the approval of the Guarantor, whereby, upon payment 
of the agreed sum, the Applicant is to be fully, irrevocably and 
unconditionally discharged from all further liability to such passenger 
or other person, or to such personal representative, with respect to 
such claim.
    2. The Guarantor's liability under this Guaranty shall in no event 
exceed the amount of the Applicant's legal liability under any such 
judgment or settlement agreement, except that, if the aggregate amount 
of such judgments and settlements exceeds an amount computed in 
accordance with the formula contained in section 2(a) of the Act, then 
the Guarantor's total liability under this Guaranty shall be limited to 
an amount computed in accordance with such formula.
    3. The Guarantor's liability under this Guaranty shall attach only 
in respect of events giving rise to causes of action against the 
Applicant in respect of any of the Vessels for damages for death or 
injury within the meaning of section 2 of the Act, occurring after the 
Certificate has been granted to the Applicant and before the expiration 
date of this Guaranty, which shall be the earlier of the following 
dates:
    (a) The date whereon the Certificate is withdrawn, or for any reason 
becomes invalid or ineffective; or
    (b) The date 30 days after the date of receipt by FMC of notice in 
writing (including telex or cable) that the Guarantor has elected to 
terminate this Guaranty, except that if, on the date which would 
otherwise have been the expiration date of this Guaranty under the 
foregoing provisions of this Clause 3, any of the Vessels is on a voyage 
in respect of which such Vessel would not have received clearance in 
accordance with section 2(e) of the Act without the Certificate, then 
the expiration date of this Guaranty shall, in respect of such Vessel, 
be postponed to the date on which the last passenger on such voyage 
shall have fully disembarked.
    4. If, during the currency of this Guaranty, the Applicant requests 
that a vessel owned or operated by the Applicant, and not specified in 
the annexed Schedule, should become subject to this Guaranty, and if the 
Guarantor accedes to such request and so notifies FMC in writing 
(including telex or cable), then provided that, within 30 days of 
receipt of such notice FMC shall have granted a Certificate, such vessel 
shall thereupon be deemed to be one of the Vessels included in the said 
Schedule and subject to this Guaranty.
    5. The Guarantor hereby designates ------------, with offices at --
----------, as

[[Page 236]]

the Guarantor's legal agent for Service of process for the purposes of 
the Rules of the Federal Maritime Commission, subpart B of part 540 of 
title 46, Code of Federal Regulations, issued under section 2 of the 
Pub. L 89-777 (80 Stat. 1357, 1358), entitled ``Security for the 
Protection of the Public.''

_______________________________________________________________________

        (Place and Date of Execution)

_______________________________________________________________________

          (Name and Guarantor)

_______________________________________________________________________

          (Address of Guarantor)

By_____________________________________________________________________

          (Name and Title)

               Schedule of Vessels Referred to in Clause 1

       Vessels Added to This Schedule in Accordance With Clause 4



                           Subpart C--General



Sec. 540.91  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    This section displays the control numbers assigned to information 
collection requirements of the Commission in this part by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act of 1980, 
Public Law 96-511. The Commission intends that this section comply with 
the requirements of section 3507(f) of the Paperwork Reduction Act, 
which requires that agencies display a current control number assigned 
by the Director of the Office of Management and Budget (OMB) for each 
agency information collection requirement:

------------------------------------------------------------------------
                                                            Current OMB
                         Section                            Control No.
------------------------------------------------------------------------
540.4 (Form FMC-131)....................................       3072-0012
540.5...................................................       3072-0011
540.6...................................................       3072-0011
540.8...................................................       3072-0011
540.9...................................................       3072-0011
540.23 (Form FMC-131)...................................       3072-0012
540.24..................................................       3072-0011
540.26..................................................       3072-0011
540.27..................................................       3072-0011
------------------------------------------------------------------------


[[Page 237]]



   SUBCHAPTER C--REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED 
           ACTIVITIES IN DOMESTIC OFFSHORE COMMERCE [RESERVED]


   SUBCHAPTER D--REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED 
                     ACTIVITIES IN FOREIGN COMMERCE


PART 571--INTERPRETATIONS AND STATEMENTS OF POLICY--Table of Contents




Sec.
571.1  Interpretation of Shipping Act of 1984--Refusal to negotiate with 
          shippers' associations.
571.2  Interpretation of Shipping Act of 1984--Unpaid ocean freight 
          charges.

    Authority: 5 U.S.C. 553, 46 U.S.C. app. 1706, 1707, 1709, and 1716.



Sec. 571.1  Interpretation of Shipping Act of 1984--Refusal to negotiate with shippers' associations.

    (a) Section 8(c) of the Shipping Act of 1984 (1984 Act) authorizes 
ocean common carriers and conferences to enter into a service contract 
with a shippers' association, subject to the requirements of the 1984 
Act. Section 10(b)(13) of the 1984 Act prohibits carriers from refusing 
to negotiate with a shippers' association. Section 7(a)(2) of the 1984 
Act exempts from the antitrust laws any activity within the scope of 
that Act, undertaken with a reasonable basis to conclude that it is 
pursuant to a filed and effective agreement.
    (b) The Federal Maritime Commission interprets these provisions to 
establish that a common carrier or conference may not require a 
shippers' association to obtain or apply for a Business Review Letter 
from the Department of Justice prior to or as part of a service contract 
negotiation process.

[53 FR 43698, Oct. 28, 1988]



Sec. 571.2  Interpretation of Shipping Act of 1984--Unpaid ocean freight charges.

    Section 10(a)(1) of the Shipping Act of 1984 states that it is 
unlawful for any person to obtain or attempt to obtain transportation 
for property at less than the properly applicable rates, by any ``unjust 
or unfair device or means.'' An essential element of the offense is use 
of an ``unjust or unfair device or means.'' In the absence of evidence 
of bad faith or deceit, the Federal Maritime Commission will not infer 
an ``unjust or unfair device or means'' from the failure of a shipper to 
pay ocean freight. An ``unjust or unfair device or means'' could be 
inferred where a shipper, in bad faith, induced the carrier to 
relinquish its possessory lien on the cargo and to transport the cargo 
without prepayment by the shipper of the applicable freight charges.

[58 FR 7194, Feb. 5, 1993]



PART 572--AGREEMENTS BY OCEAN COMMON CARRIERS AND OTHER PERSONS SUBJECT TO THE SHIPPING ACT OF 1984--Table of Contents




                      Subpart A--General Provisions

Sec.
572.101  Authority.
572.102  Purpose.
572.103  Policies.
572.104  Definitions.

                            Subpart B--Scope

572.201  Subject agreements.
572.202  Non-subject agreements.

                          Subpart C--Exemptions

572.301  Exemption procedures.
572.302  Non-substantive agreements and non-substantive modifications to 
          existing agreements--exemption.
572.303  Husbanding agreements--exemption.
572.304  Agency agreements--exemption.
572.305  Equipment interchange agreements--exemption.
572.306  Non-exclusive transshipment agreements--exemption.
572.307  Marine terminal agreements--exemption.
572.308  Agreements between or among wholly-owned subsidiaries and/or 
          their parent--exemption.
572.309  Miscellaneous modifications to agreements--exemptions.
572.310  Marine terminal services agreements--exemption.

[[Page 238]]

572.311  Marine terminal facilities agreement--exemption.

                     Subpart D--Filing of Agreements

572.401  General requirements.
572.402  Form of agreements.
572.403  Agreement provisions--organization.
572.404  Organization of conference and interconference agreements.
572.405  Modifications of agreements.
572.406  Application for waiver.
572.407  Complete and definite agreements.

                Subpart E--Information Form Requirements

572.501  General requirements.
572.502  Subject agreements.
572.503  Information form for Class A/B agreements.
572.504  Information form for Class C agreements.
572.505  Application for waiver.

                     Subpart F--Action on Agreements

572.601  Preliminary review--rejection of agreements.
572.602  Federal Register notice.
572.603  Comment.
572.604  Waiting period.
572.605  Requests for expedited approval.
572.606  Requests for additional information.
572.607  Failure to comply with requests for additional information.
572.608  Confidentiality of submitted material.
572.609  Negotiations.

         Subpart G--Reporting and Record Retention Requirements

572.701  General requirements.
572.702  Agreements subject to Monitoring Report requirements.
572.703  Monitoring report for Class A agreements.
572.704  Monitoring report for Class B agreements.
572.705  Monitoring report for Class C agreements.
572.706  Filing of minutes--including shippers' requests and complaints, 
          and consultations.
572.707  Other documents.
572.708  Retention of records.
572.709  Application for waiver.

                    Subpart H--Conference Agreements

572.801  Independent action.
572.802  Service contracts.

                          Subpart I--Penalties

572.901  Failure to file.
572.902  Falsification of reports.

                     Subpart J--Paperwork Reduction

572.991  OMB control numbers assigned pursuant to the Paperwork 
          Reduction Act.

Appendix A to Part 572--Information Form for Class A/B Agreements and 
          Instructions
Appendix B to Part 572--Information Form for Class C Agreements and 
          Instructions
Appendix C to Part 572--Monitoring Report for Class A Agreements and 
          Instructions
Appendix D to Part 572--Monitoring Report for Class B Agreements and 
          Instructions
Appendix E to Part 572--Monitoring Report for Class C Agreements and 
          Instructions

    Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 46 U.S.C. app. 1701-1707, 
1709-1710, 1712 and 1714-1717.

    Source: 49 FR 45351, Nov. 15, 1984, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 572.101  Authority.

    The rules in this part are issued pursuant to the authority of 
section 4 of the Administrative Procedure Act (5 U.S.C. 553), and 
sections 2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 15, 16, 17 and 18 of the 
Shipping Act of 1984 (the Act).

[49 FR 45351, Nov. 15, 1984; 49 FR 48927, Dec. 17, 1984]



Sec. 572.102  Purpose.

    This part implements those provisions of the Act which govern 
agreements by or among ocean common carriers and agreements (to the 
extent the agreements involve ocean transportation in the foreign 
commerce of the United States) among marine terminal operators and among 
one or more marine terminal operators and one or more ocean common 
carriers. This part also sets forth more specifically certain procedures 
provided for in the Act.



Sec. 572.103  Policies.

    (a) The Act requires that agreements be processed and reviewed, upon 
their initial filing, according to strict statutory deadlines. This part 
is intended to establish procedures for the orderly and expeditious 
review of filed agreements in accordance with the statutory 
requirements.

[[Page 239]]

    (b) The Act requires that agreements be reviewed, upon their initial 
filing, to ensure compliance with all applicable provisions of the Act 
and empowers the Commission to obtain information to conduct that 
review. This part identifies those classes of agreements which must be 
accompanied by information submissions when they are first filed, and 
sets forth the kind of information for each class of agreement which the 
Commission believes relevant to that review. Only that information which 
is relevant to such a review is requested. It is the policy of the 
Commission to keep the costs of regulation to a minimum and at the same 
time obtain information needed to fulfill its statutory responsibility.
    (c) In order to further the goal of expedited processing and review 
of agreements upon their initial filing, agreements are required to meet 
certain minimum requirements as to form. These requirements are intended 
to ensure expedited review and should assist parties in preparing 
agreements. These requirements as to form do not affect the substance of 
an agreement and are intended to allow parties the freedom to develop 
innovative commerical relationships and provide efficient and economic 
transportation systems.
    (d) The Act itself excludes certain agreements from filing 
requirements and authorizes the Commission to exempt other classes of 
agreements from any requirement of the Act or this part. In order to 
minimize delay in implementation of routine agreements and to avoid the 
private and public cost of unnecessary regulation, the Commission is 
exempting certain classes of agreements from the filing requirements of 
this part.
    (e) Under the new regulatory framework established by the Act, the 
role of the Commission as a monitoring and surveillance agency has been 
enhanced. The Act favors greater freedom in allowing parties to form 
their commercial arrangements. This, however, requires greater 
monitoring of agreements after they have become effective, to assure 
continued compliance with all applicable provisions of the Act. The Act 
empowers the Commission to impose certain recordkeeping and reporting 
requirements. This part identifies those classes of agreements which 
require specific record retention and reporting to the Commission and 
prescribes the applicable period of record retention, the form and 
content of such reporting, and the applicable time periods for filing 
with the Commission. Only that information which is necessary to assure 
that Commission monitoring responsibilities will be fulfilled is 
requested. It is the policy of the Commission to keep the costs of 
regulations to a minimum and at the same time obtain information needed 
to fulfill its statutory responsibility.
    (f) The Act requires that conference agreements must contain certain 
mandatory provisions. Each such agreement must: (1) state its purpose; 
(2) provide reasonable and equal terms and conditions for admission and 
readmission to membership; (3) allow for withdrawal from membership upon 
reasonable notice without penalty; (4) require an independent neutral 
body to police the conference, if requested by a member; (5) prohibit 
conduct specified in sections 10(c)(1) or 10(c)(3) of the Act; (6) 
provide for a consultation process; (7) establish procedures for 
considering shippers' requests and complaints; and (8) provide for 
independent action. Parties to conference agreements are free to develop 
their own mandatory provisions in accordance with the requirements of 
section 5(b) of the Act.
    (g) An agreement filed under the Act must be clear and definite in 
its terms, must embody the complete understanding of the parties, and 
must set forth the specific authorities and conditions under which the 
parties to the agreement will conduct their present operations and 
regulate the relationships among the agreement members.

[49 FR 45351, Nov. 15, 1984, as amended at 61 FR 11573, Mar. 21, 1996]



Sec. 572.104  Definitions.

    When used in this part:
    (a) Agreement means an understanding, arrangement or association, 
written or oral (including any modification, cancellation or appendix) 
entered into by or among ocean common carriers and/or marine terminal 
operators, but does not include a maritime labor agreement.

[[Page 240]]

    (b) Antitrust laws means the Act of July 2, 1890 (ch. 647, 26 Stat. 
209), 15 U.S.C. 1, as amended; the Act of October 15, 1914 (ch. 323, 38 
Stat. 730), 15 U.S.C. 12, as amended; the Federal Trade Commission Act 
(38 Stat. 717), 15 U.S.C. 41, as amended; sections 73 and 74 of the Act 
of August 27, 1894 (28 Stat. 570), 15 U.S.C. 8, 9, as amended; the Act 
of June 19, 1936 (ch. 592, 49 Stat. 1526), 15 U.S.C. 13, as amended; the 
Antitrust Civil Process Act (76 Stat. 548), 15 U.S.C. 1311, note as 
amended; and amendments and Acts supplementary thereto.
    (c) Appendix means a document containing additional material of 
limited application and appended to an agreement, distinctly 
differentiated from the main body of the basic agreement.
    (d) Assessment agreement means an agreement, whether part of a 
collective bargaining agreement or negotiated separately, to the extent 
that it provides for the collectively bargained fringe benefit 
obligations on other than a uniform man-hour basis regardless of the 
cargo handled or type of vessel or equipment utilized.
    (e) Capacity management or capacity regulation agreement means an 
agreement between two or more ocean common carriers which authorizes 
withholding some part of the capacity of the parties' vessels from a 
specified transportation market, without reducing the real capacity of 
those vessels. The term does not include sailing agreements or space 
charter agreements.
    (f) Common carrier means a person holding itself out to the general 
public to provide transportation by water of passengers or cargo between 
the United States and a foreign country for compensation that: (1) 
Assumes responsibility for the transportation from the port or point of 
receipt to the port or point of destination; and (2) utilizes, for all 
or part of that transportation, a vessel operating on the high seas or 
the Great Lakes between a port in the United States and a port in a 
foreign country.
    (g) Conference agreement means an agreement between or among two or 
more ocean common carriers or between or among two or more marine 
terminal operators for the conduct or facilitation of ocean common 
carriage and which provides for: (1) The fixing of and adherence to 
uniform rates, charges, practices and conditions of service relating to 
the receipt, carriage, handling and/or delivery of passengers or cargo 
for all members; (2) the conduct of the collective administrative 
affairs of the group; and (3) may include the filing of a common tariff 
in the name of the group and in which all the members participate, or, 
in the event of multiple tariffs, each member must participate in at 
least one such tariff. The term does not include joint service, pooling, 
sailing, space charter, or transshipment agreements.
    (h) Consultation means a process whereby a conference and a shipper 
confer for the purpose of promoting the commercial resolution of 
disputes and/or the prevention and elimination of the occurrence of 
malpractices.
    (i) Cooperative working agreement means an agreement which 
establishes exclusive, preferential, or cooperative working 
relationships which are subject to the Shipping Act of 1984, but which 
do not fall precisely within the arrangements of any specifically 
defined agreement.
    (j) Effective agreement means an agreement approved pursuant to the 
Shipping Act, 1916, or effective pursuant to an exemption under that 
act, or effective under the Act.
    (k) Equal access agreement means an agreement between ocean common 
carriers of different nationalities, as determined by the incorporation 
or domicile of the carriers' operating companies, whereby such common 
carriers associate for the purpose of gaining reciprocal access to cargo 
which is otherwise reserved by national decree, legislation, statute or 
regulation to carriage by the merchant marine of the carriers' 
respective nations.
    (l) Independent neutral body means a disinterested third party, 
authorized by a conference and its members to review, examine and 
investigate alleged breaches or violations by any member of the 
conference agreement and/or the agreement's properly promulgated 
tariffs, rules or regulations.
    (m) Information form means the form containing economic information

[[Page 241]]

which must accompany the filing of certain kinds of agreements.
    (n) Interconference agreement means an agreement between 
conferences.
    (o) Joint service agreement means an agreement between ocean common 
carriers operating as a joint venture whereby a separate service is 
established which: (1) Holds itself out in its own distinct operating 
name; (2) independently fixes its own rates, charges, practices and 
conditions of service or chooses to participate in its operating name in 
another agreement which is duly authorized to determine and implement 
such activities; (3) independently publishes its own tariff or chooses 
to participate in its operating name in an otherwise established tariff; 
(4) issues its own bills of lading; and (5) acts generally as a single 
carrier. The common use of facilities may occur and there is no 
competition between members for traffic in the agreement trade; but they 
otherwise maintain their separate identities.
    (p) Marine terminal facilities means one or more structures (and 
services connected therewith) comprising a terminal unit, including, but 
not limited to docks, berths, piers, aprons, wharves, warehouses, 
covered and/or open storage space, cold storage plants, 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 or the interchange of same between land and 
ocean common carriers or between two ocean common carriers. This term is 
not limited to waterfront or port facilities and includes so-called off-
dock container freight stations at inland locations and any other 
facility from which inbound waterborne cargo may be tendered to the 
consignee or outbound cargo may be received from shippers for vessel or 
container loading.
    (q) Marine terminal operator means a person engaged in the United 
States in the business of furnishing wharfage, dock, warehouse, or other 
terminal facilities in connection with a common carrier. This term does 
not include shippers or consignees who exclusively furnish marine 
terminal facilities or services in connection with tendering or 
receiving proprietary cargo from a common carrier by water.
    (r) Maritime labor agreement means a collective-bargaining agreement 
between an employer subject to the Act or group of such employers, and a 
labor organization representing employees in the maritime or stevedoring 
industry, or an agreement preparatory to such a collective-bargaining 
agreement among members of a multiemployer bargaining group, or an 
agreement specifically implementing provisions of such a collective-
bargaining agreement or providing for the formation, financing or 
administration of a multiemployer bargaining group; but the term does 
not include an assessment agreement.
    (s) Modification means any change, alteration, correction, addition, 
deletion, or revision of an existing effective agreement or to any 
appendix to such an agreement.
    (t) Monitoring report means the report containing economic 
information which must be filed at defined intervals with regard to 
certain kinds of agreements that are effective under the Act.
    (u) Non-vessel-operating common carrier means a common carrier that 
does not operate the vessels by which the ocean transportation portion 
is provided and is a shipper in its relationship with an ocean common 
carrier.
    (v) Ocean common carrier means a vessel-operating common carrier, 
but the term does not include one engaged in ocean transportation by 
ferry boat or an ocean tramp.
    (w) Ocean freight forwarder means a person in the United States that 
(1) dispatches shipments from the United States via common carriers and 
books or otherwise arranges space for those shipments on behalf of 
shippers, and (2) processes the documentation or performs related 
activities incident to those shipments.
    (x) Person means individuals, corporations, partnerships and 
associations existing under or authorized by the laws of the United 
States or of a foreign country.
    (y) Pooling agreement means an agreement between ocean common 
carriers which provides for the division of cargo carryings, earnings, 
or revenue and/or

[[Page 242]]

losses between the members in accordance with an established formula or 
scheme.
    (z) Port means the place at which an ocean common carrier originates 
or terminates (and/or transships) its actual ocean carriage of cargo or 
passengers as to any particular transportation movement.
    (aa) Rate, for purposes of this part, includes both the basic price 
paid by a shipper to an ocean common carrier for a specified level of 
transportation service for a stated quantity of a particular commodity, 
from origin to destination, on or after a stated effective date or 
within a defined time frame, and also any accessorial charges or 
allowances that increase or decrease the total transportation cost to 
the shipper.
    (bb) Rate agreement means an agreement between ocean common carriers 
which authorizes agreement upon, on either a binding basis under a 
common tariff or on a non-binding basis, or discussion of, any kind of 
rate.
    (cc) Sailing agreement means an agreement between ocean common 
carriers which provides for the rationalization of service by 
establishing a schedule of ports which each carrier will serve, the 
frequency of each carrier's calls at those ports, and/or the size and 
capacity of the vessels to be deployed by the parties. The term does not 
include joint service agreements, or capacity management or capacity 
regulation agreements.
    (dd) Service contract means a contract between a shipper or 
shippers' association and an ocean common carrier or conference in which 
the shipper or shippers' association makes a commitment to provide a 
certain minimum quantity of cargo over a fixed time period, and the 
ocean common carrier or conference commits to a certain rate or rate 
schedule as well as a defined service level--such as assured space, 
transit time, port rotation, or similar service features. The contract 
may also specify provisions in the event of nonperformance on the part 
of either party.
    (ee) Shipper means an owner or other person for whose account the 
ocean transportation of cargo is provided or the person to whom delivery 
is to be made.
    (ff) Shippers' association means a group of shippers that 
consolidates or distributes freight on a nonprofit basis for the members 
of the group in order to secure carload, truckload, or other volume 
rates or service contracts.
    (gg) Shippers' requests and complaints means a communication from a 
shipper to a conference requesting a change in tariff rates, rules, 
regulations, or service; protesting or objecting to existing rates, 
rules, regulations or service; objecting to rate increases or other 
tariff changes; protesting allegedly erroneous service contract or 
tariff implementation or application, and/or requesting to enter into a 
service contract. Routine information requests are not included in the 
term.
    (hh) Space charter agreement means an agreement between ocean common 
carriers whereby a carrier (or carriers) agrees to provide vessel 
capacity for the use of another carrier (or carriers) in exchange for 
compensation or services. The arrangement may include arrangements for 
equipment interchange and receipt/delivery of cargo, but may not include 
capacity management or capacity regulation as used in this subpart.
    (ii) Through transportation means continuous transportation between 
origin and destination for which a through rate is assessed and which is 
offered or performed by one or more carriers, at least one of which is 
an ocean common carrier, between a United States point or port and a 
foreign point or port.
    (jj) Transshipment agreement means an agreement between an ocean 
common carrier serving a port or point of origin and another such 
carrier serving a port or point of destination, whereby cargo is 
transferred from one carrier to another carrier at an intermediate port 
served by direct vessel call of both such carriers in the conduct of 
through transportation. Such an agreement does not provide for the 
concerted discussion, publication or otherwise fixing of rates for the 
account of the cargo interests, conditions of service or other tariff 
matters other than the tariff description of the transshipment service 
offered, the port of transshipment and the participation of the 
nonpublishing carrier. An agreement which involves the movement of cargo 
in a domestic

[[Page 243]]

offshore trade as part of a through movement of cargo via transshipment 
involving the foreign commerce of the United States shall be considered 
to be in the foreign commerce of the United States and, therefore, 
subject to the Shipping Act of 1984 and the rules of this part.
    (kk) Vessel-operating costs means any of the following expenses 
incurred by an ocean common carrier: Salaries and wages of officers and 
unlicensed crew, including relief crews and others regularly employed 
aboard the vessel; fringe benefits; expenses associated with consumable 
stores, supplies and equipment; vessel fuel and incidental costs; vessel 
maintenance and repair expense; hull and machinery insurance costs; 
protection and indemnity insurance costs; costs for other marine risk 
insurance not properly chargeable to hull and machinery insurance or to 
protection and indemnity insurance accounts; and charter hire expenses.

[49 FR 45351, Nov. 15, 1984; 49 FR 48927, Dec. 17, 1984, as amended at 
50 FR 6944, Feb. 19, 1985; 61 FR 11574, Mar. 21, 1996]



                            Subpart B--Scope



Sec. 572.201  Subject agreements.

    (a) Ocean common carrier agreements. This part applies to agreements 
by or among ocean common carriers to:
    (1) Discuss, fix, or regulate transportation rates, including 
through rates, cargo space accommodations, and other conditions of 
service;
    (2) Pool or apportion traffic, revenues, earnings, or losses;
    (3) Allot ports or restrict or otherwise regulate the number and 
character of sailings between ports;
    (4) Limit or regulate the volume or character of cargo or passenger 
traffic to be carried;
    (5) Engage in exlcusive, preferential, or cooperative working 
arrangements among themselves or with one or more marine terminal 
operators or non-vessel-operating common carriers;
    (6) Control, regulate, or prevent competition in international ocean 
transportation; and
    (7) Regulate or prohibit their use of service contracts.
    (b) Marine terminal operator agreements involving foreign commerce. 
This part applies to agreements (to the extent the agreements involve 
ocean transportation in the foreign commerce of the United States) among 
marine terminal operators and among one or more marine terminal 
operators and one or more ocean common carriers to:
    (1) Discuss, fix, or regulate rates or other conditions of service; 
and
    (2) Engage in exclusive, preferential, or cooperative working 
arrangements.

[49 FR 45351, Nov. 15, 1984; 49 FR 48927, Dec. 17, 1984]



Sec. 572.202  Non-subject agreements.

    This part does not apply to the following agreements:
    (a) Any acquisition by any person, directly or indirectly, of any 
voting security or assets of any other person;
    (b) Any maritime labor agreement;
    (c) Any agreement related to transportation to be performed within 
or between foreign countries;
    (d) Any agreement among common carriers to establish, operate, or 
maintain a marine terminal in the United States;
    (e) Any agreement among marine terminal operators which exclusively 
and solely involves transportation in the interstate commerce of the 
United States;
    (f) Any agreement exclusively and solely among non-vessel-operating 
common carriers;
    (g) Any agreement exclusively and solely among ocean freight 
forwarders.



                          Subpart C--Exemptions



Sec. 572.301  Exemption procedures.

    (a) Authority. The Commission, upon application or on its own 
motion, may by order or rule exempt for the future any class of 
agreements between persons subject to the Act from any requirement of 
the Act if it finds that the exemption will not substantially impair 
effective regulation by the Commission, be unjustly discriminatory, 
result in substantial reduction in competition, or be detrimental to 
commerce.
    (b) Optional filing. Notwithstanding any exemption from filing, or 
other requirements of the Act and this part, any party to an exempt 
agreement may

[[Page 244]]

file such an agreement with the Commission.
    (c) Application for exemption. Any person may apply for an exemption 
or revocation of an exemption of any class of agreements or an 
individual agreement pursuant to section 16 of the Act and this subpart. 
An application for exemption shall state the particular requirement of 
the Act for which exemption is sought. The application shall also 
include a statement of the reasons why an exemption should be granted or 
revoked and shall provide information relevant to any finding required 
by the Act. Where an application for exemption of an individual 
agreement is made, the application shall include a copy of the 
agreement.
    (d) Participation by interested persons. No order or rule of 
exemption or revocation of exemption may be issued unless opportunity 
for hearing has been afforded interested persons and departments and 
agencies of the United States.
    (e) Federal Register notice. Notice of any proposed exemption or 
revocation of exemption, whether upon application or upon the 
Commission's own motion, shall be published in the Federal Register. The 
notice shall include:
    (1) A short title for the proposed exemption or the title of the 
existing exemption;
    (2) The identity of the party proposing the exemption or seeking 
revocation;
    (3) A concise summary of the agreement or class of agreements for 
which exemption is sought, or the exemption which is to be revoked;
    (4) A statement that the application and any accompanying 
information are available for inspection in the Commission's offices in 
Washington, D.C.; and
    (5) The final date for filing comments regarding the application.
    (f) Retention of agreement by parties. Any agreement which has been 
exempted by the Commission pursuant to section 16 of the Act shall be 
retained by the parties and shall be available upon request by the 
Bureau of Economics and Agreement Analysis for inspection during the 
term of the agreement and for a period of three years after its 
termination.

[49 FR 45351, Nov. 15, 1984, as amended at 59 FR 67230, Dec. 29, 1994; 
61 FR 11574, Mar. 21, 1996]



Sec. 572.302  Non-substantive agreements and non-substantive modifications to existing agreements--exemption.

    (a) A non-substantive agreement or a non-substantive modification to 
an existing agreement is an agreement between ocean common carriers and/
or marine terminal operators, acting individually or through approved 
agreements, which:
    (1) Concerns the procurement, maintenance, or sharing of office 
facilities, furnishings, equipment and supplies, the allocation and 
assessment of the costs thereof, or the provisions for the 
administration and management of such agreements by duly appointed 
individuals.
    (2) Reflects changes in the name of any geographic locality stated 
therein; the name of the agreement or the name of a party to the 
agreement; the names and/or numbers of any other section 4 agreement or 
designated provisions thereof referred to in an agreement; the table of 
contents of an agreement; the date or amendment number through which 
agreements state they have been reprinted to incorporate prior revisions 
thereto or which corrects typographical and grammatical errors in the 
text of the agreement; or renumbers or reletters articles or subarticles 
of agreements and references thereto in the text.
    (3) Reflects changes in the titles or persons or committees 
designated therein or transfers the functions of such persons or 
committees to other designated persons or committees or which merely 
establishes a committee.
    (b) A copy of the non-substantive agreement or modification shall be 
submitted for information purposes in the proper format but is otherwise 
exempt from the notice and waiting period requirements of the Act, and 
of this part.
    (c) Parties to agreements may seek a determination from the 
Director, Bureau of Economics and Agreement Analysis as to whether a 
particular modification is non-substantive.

[[Page 245]]

    (d) The filing fee for such agreements is described in 
Sec. 572.401(f).

[49 FR 45351, Nov. 15, 1984, as amended at 50 FR 6944, Feb. 19, 1985; 59 
FR 63908, Dec. 12, 1994; 59 FR 67230, Dec. 29, 1994; 61 FR 11574, Mar. 
21, 1996]



Sec. 572.303  Husbanding agreements--exemption.

    (a) A husbanding agreement is an agreement between a principal and 
an agent both of which are subject to the Act and which provides for the 
agent's handling of routine vessel operating activities in port, such as 
notifying port officials of vessel arrivals and departures; ordering 
pilots, tugs, and linehandlers; delivering mail; transmitting reports 
and requests from the Master to the owner/operator; dealing with 
passenger and crew matters; and providing similar services related to 
the above activities. The term does not include an agreement which 
provides for the solicitation or booking of cargoes, signing contracts 
or bills of lading and other related matters, nor does it include an 
agreement that prohibits the agent from entering into similar agreements 
with other carriers.
    (b) A husbanding agreement is exempt from the filing requirements of 
the Act and of this part.
    (c) The filing fee for such agreements is described in 
Sec. 572.401(f).

[49 FR 45351, Nov. 15, 1984 as amended at 49 FR 48927, Dec. 17, 1984; 59 
FR 63908, Dec. 12, 1994; 61 FR 11574, Mar. 21, 1996]



Sec. 572.304  Agency agreements--exemption.

    (a) An agency agreement is an agreement between a principal and an 
agent both of which are subject to the Act, which provides for the 
agent's solicitation and booking of cargoes and signing contracts of 
affreightment and bills of lading on behalf of an ocean common carrier. 
Such an agreement may or may not also include husbanding service 
functions and other functions incidental to the performance of duties by 
agents, including processing of claims, maintenance of a container 
equipment inventory control system, collection and remittance of freight 
and reporting functions.
    (b) An agency agreement between persons subject to the Act is exempt 
from the filing requirements of the Act and of this part, except those: 
(1) Where a common carrier is to be the agent for a competing carrier in 
the same trade; or (2) which permit an agent to enter into similar 
agreements with more than one carrier in a trade.
    (c) The filing fee for such agreements is described in 
Sec. 572.401(f).

[49 FR 45351, Nov. 15, 1984 as amended at 59 FR 63908, Dec. 12, 1994; 61 
FR 11574, Mar. 21, 1996]



Sec. 572.305  Equipment interchange agreements--exemption.

    (a) An equipment interchange agreement is an agreement between two 
or more ocean common carriers for (1) the exchange of empty containers, 
chassis, empty LASH/SEABEE barges, and related equipment; and (2) the 
transportation of the equipment as required, payment therefor, 
management of the logistics of transferring, handling and positioning 
equipment, its use by the receiving carrier, its repair and maintenance, 
damages thereto, and liability incidental to the interchange of 
equipment.
    (b) An equipment interchange agreement is exempt from the filing 
requirements of the Act and of this part.
    (c) The filing fee for such agreements is described in 
Sec. 572.401(f).

[49 FR 45351, Nov. 15, 1984 as amended at 59 FR 63908, Dec. 12, 1994; 61 
FR 11574, Mar. 21, 1996]



Sec. 572.306  Non-exclusive transshipment agreements--exemption.

    (a) A nonexclusive transshipment agreement is an agreement by which 
one ocean common carrier serving a port of origin by direct vessel call 
and another such carrier serving a port of destination by direct vessel 
call provide transportation between such ports via an intermediate port 
served by direct vessel call of both such carriers and at which cargo 
will be transferred from one to the other and which agreement does not: 
(1) Prohibit either carrier from entering into similar agreements with 
other carriers; (2) guarantee any particular volume of traffic or 
available capacity; or (3) provide for the discussion or fixing of rates 
for the account of the cargo interests, conditions of service or other 
tariff matters

[[Page 246]]

other than the tariff description of the service offered as being by 
means of transshipment, the port of transshipment and the participation 
of the nonpublishing carrier.
    (b) A non-exclusive transshipment agreement is exempt from the 
filing requirements of the Act and of this part, provided that the 
tariff provisions set forth in paragraph (c) of this section and the 
content requirements of paragraph (d) of this section are met.
    (c) The applicable tariff or tariffs shall provide:
    (1) The through rate;
    (2) The routings (origin, transshipment and destination ports); 
additional charges, if any (i.e. port arbitrary and/or additional 
transshipment charges); and participating carriers; and
    (3) A tariff provision substantially as follows:

    The rules, regulations, and rates in this tariff apply to all 
transshipment arrangements between the publishing carrier or carriers 
and the participating, connecting or feeder carrier. Every participating 
connecting or feeder carrier which is a party to transshipment 
arrangements has agreed to observe the rules, regulations, rates, and 
routings established herein as evidenced by a connecting carrier 
agreement between the parties.

    (d) Nonexclusive transshipment agreements must contain the entire 
arrangement between the parties, must contain a declaration of the 
nonexclusive character of the arrangement and may provide for:
    (1) The identification of the parties and the specification of their 
respective roles in the arrangement;
    (2) A specification of the governed cargo;
    (3) The specification of responsibility for the issuance of bills of 
lading (and the assumption of common carriage-associated liabilities) to 
the cargo interests;
    (4) The specification of the origin, transshipment and destination 
ports;
    (5) The specification of the governing tariff(s) and provision for 
their succession;
    (6) The specification of the particulars of the nonpublishing 
carrier's concurrence/participation in the tariff of the publishing 
carrier;
    (7) The division of revenues earned as a consequence of the 
described carriage;
    (8) The division of expenses incurred as a consequence of the 
described carriage;
    (9) Termination and/or duration of the agreement;
    (10) Intercarrier indemnification or provision for intercarrier 
liabilities consequential to the contemplated carriage and such 
documentation as may be necessary to evidence the involved obligations;
    (11) The care, handling and liabilities for the interchange of such 
carrier equipment as may be consequential to the involved carriage;
    (12) Such rationalization of services as may be necessary to ensure 
the cost effective performance of the contemplated carriage; and
    (13) Such agency relationships as may be necessary to provide for 
the pickup and/or delivery of the cargo.
    (e) No subject other than as listed in paragraph (d) of this section 
may be included in exempted nonexclusive transshipment agreements.
    (f) The filing fee for such agreements is described in 
Sec. 572.401(f).

[49 FR 45351, Nov. 15, 1984 as amended at 49 FR 48927, Dec. 17, 1984; 59 
FR 63908, Dec. 12, 1994; 61 FR 11574, Mar. 21, 1996]



Sec. 572.307  Marine terminal agreements--exemption.

    (a) Marine terminal agreement means an agreement, understanding, or 
association written or oral (including any modification, cancellation or 
appendix) that applies to future, prospective activities between or 
among the parties and which relates solely to marine terminal facilities 
and/or services among marine terminal operators and among one or more 
marine terminal operators and one or more ocean common carriers that 
completely sets forth the applicable rates, charges, terms and 
conditions agreed to by the parties for the facilities and/or services 
provided for under the agreement. The term does not include a joint 
venture arrangement among marine terminal operators to establish a 
separate, distinct entity that fixes its own rates and publishes its own 
tariff.

[[Page 247]]

    (b) Marine terminal conference agreement means an agreement between 
or among two or more marine terminal operators and/or ocean common 
carriers for the conduct or facilitation of marine terminal operations 
in connection with waterborne common carriage in the foreign commerce of 
the United States and which:
    (1)(i) Provides for the fixing of and adherence to uniform marine 
terminal rates, charges, practices and conditions of service relating to 
the receipt, handling and/or delivery of passengers or cargo for all 
members; and/or
    (ii) Provides for the conduct of the collective administrative 
affairs of the group; and
    (2) May include the filing of a common marine terminal tariff in the 
name of the group and in which all the members participate, or, in the 
event of multiple tariffs, each member participates in at least one such 
tariff.
    (c) Marine terminal discussion agreement means an agreement between 
or among two or more marine terminal operators and/or marine terminal 
conferences and/or ocean common carriers solely for the discussion of 
subjects including marine terminal rates, charges, practices and 
conditions of service relating to the receipt, handling and/or delivery 
of passengers or cargo.
    (d) Marine terminal interconference agreement means an agreement 
between or among two or more marine terminal conference and/or marine 
terminal discussion agreements.
    (e) All marine terminal agreements, as defined in Sec. 572.307(a), 
with the exception of marine terminal conference, marine terminal 
interconference and marine terminal discussion agreements as defined in 
Sec. 572.307 (b), (c) and (d) are exempt from the waiting period 
requirements of section 6 of the Shipping Act of 1984 and part 572 of 
this chapter on the condition that they be filed in the form and manner 
presently required by part 572 of this chapter.
    (f) Agreements filed for and entitled to exemption under this 
paragraph will be exempted from the waiting period requirements 
effective on the date of their filing with the Commission.
    (g) The filing fee for such agreements is described in 
Sec. 572.401(f).

[52 FR 18697, May 19, 1987, as amended at 59 FR 63908, Dec. 12, 1994]



Sec. 572.308  Agreements between or among wholly-owned subsidiaries and/or their parent--exemption.

    (a) An agreement between or among wholly-owned subsidiaries and/or 
their parent means an agreement under section 4 of the 1984 Act between 
or among an ocean common carrier or marine terminal operator subject to 
the 1984 Act and any one or more ocean common carriers or marine 
terminal operators which are ultimately owned 100 percent by that ocean 
common carrier or marine terminal operator, or an agreement between or 
among such wholly-owned carriers or terminal operators.
    (b) All agreements between or among wholly-owned subsidiaries and/or 
their parent are exempt from the filing requirements of the 1984 Act and 
of this part.
    (c) Common carriers are exempt from section 10(c) of the 1984 Act to 
the extent that the concerted activities proscribed by that section 
result solely from agreements between or among wholly-owned subsidiaries 
and/or their parent.
    (d) All agreements between or among wholly-owned subsidiaries and/or 
their parent are exempt from the requirements of Sec. 572.301(f) of this 
part.
    (e) The filing fee for such agreements is described in 
Sec. 572.401(f).

[53 FR 11073, Apr. 5, 1988, as amended at 59 FR 63908, Dec. 12, 1994; 61 
FR 11574, Mar. 21, 1996]



Sec. 572.309  Miscellaneous modifications to agreements--exemptions.

    (a) Each of the following types of modifications to agreements is 
exempt from the notice and waiting period requirements of the Act and of 
this part provided that such modifications are filed for informational 
purposes in the proper format:
    (1) Any modification which cancels an effective agreement.
    (2) Any modification to the following designated agreement articles:

[[Page 248]]

    (i) Article 3-- Parties to the agreement (limited to conference 
agreements, voluntary ratemaking agreements having no other 
anticompetitive authority (e.g., pooling authority or capacity reduction 
authority), and discussion agreements among passenger vessel operating 
common carriers which are open to all ocean common carriers operating 
passenger vessels of a class defined in the agreements and which do not 
contain ratemaking, pooling, joint service, sailing or space chartering 
authority).
    (ii) Article 6--Officials of the agreement and delegations of 
authority.
    (iii) Article 10--Neutral body policing (limited to the description 
of neutral body authority and procedures related thereto).
    (b) Any modification exempt under paragraph (a) is effective upon 
filing.
    (c) The filing fee for such agreements is described in 
Sec. 572.401(f).

[50 FR 16703, Apr. 29, 1985. Redesignated at 52 FR 18697, May 19, 1987 
and 53 FR 11073, Apr. 5, 1988; 54 FR 53322, Dec. 28, 1989; 57 FR 40619, 
Sept. 4, 1992; 59 FR 63908, Dec. 12, 1994; 61 FR 11574, Mar. 21, 1996]



Sec. 572.310  Marine terminal services agreements--exemption.

    (a) Marine terminal services agreement means an agreement, contract, 
understanding, arrangement or association, written or oral (including 
any modification, cancellation or appendix) between a marine terminal 
operator and an ocean common carrier that applies to marine terminal 
services as defined in 46 CFR 514.2 (including any marine terminal 
facilities, as defined in 46 CFR 514.2, which may be provided 
incidentally to such marine terminal services) that are provided to and 
paid for by an ocean common carrier. The term ``marine terminal services 
agreement'' does not include:
    (1) Any agreement which conveys to the involved carrier any rights 
to operate any marine terminal facility by means of a lease, license, 
permit, assignment, land rental, or similar other arrangement for the 
use of marine terminal facilities or property; or
    (2) Any agreement (or any modification to any agreement) previously 
filed with the Commission pursuant to the Shipping Act of 1984, unless 
said agreement, together with all previously-filed modifications, have 
been formally withdrawn.
    (b) All marine terminal services agreements as defined in 
Sec. 572.310(a) are exempt from the filing and waiting period 
requirements of sections 5 and 6 of the Shipping Act of 1984 and Part 
572 of this chapter on condition that:
    (1) They do not include rates, charges, rules and regulations which 
are determined through a marine terminal conference agreement, as 
defined in 46 CFR 572.307(b); and
    (2) No antitrust immunity is conferred pursuant to section 7 of the 
Shipping Act of 1984, 46 U.S.C. app. 1706, with regard to terminal 
services provided to a common carrier by water under a marine terminal 
services agreement which is not filed with the Commission pursuant to 
the exemption provided by Sec. 572.310(b).
    (c) The filing fee for such agreements is described in 
Sec. 572.401(f).

[57 FR 4583, Feb. 6, 1992, as amended at 59 FR 63908, Dec. 12, 1994; 60 
FR 27230, May 23, 1995]



Sec. 572.311  Marine terminal facilities agreement--exemption.

    (a) Marine terminal facilities agreement means any agreement between 
or among two or more marine terminal operators, or between one or more 
marine terminal operators and one or more ocean common carriers, to the 
extent that the agreement involves ocean transportation in the foreign 
commerce of the United States, which conveys to any of the involved 
parties any rights to operate any marine terminal facility by means of 
lease, license, permit, assignment, land rental, or other similar 
arrangement for the use of marine terminal facilities or property.
    (b) All marine terminal facilities agreements as defined in 
Sec. 572.311(a) are exempt from the filing and waiting period 
requirements of sections 5 and 6 of the Shipping Act of 1984 and this 
part 572.
    (c) Copies of any and all marine terminal facilities agreements 
currently in effect shall be provided, by parties to such agreements, to 
any requesting party for a reasonable copying and mailing fee.

[[Page 249]]

    (d) The filing fee for such agreements is described in 
Sec. 572.401(f).

[58 FR 5631, Jan. 22, 1993, as amended at 59 FR 63908, Dec. 12, 1994]



                     Subpart D--Filing of Agreements



Sec. 572.401  General requirements.

    (a) All agreements (including oral agreements reduced to writing in 
accordance with the Act) subject to this part and filed with the 
Commission for review and disposition pursuant to section 6 of the Act, 
shall be submitted during regular business hours to the Secretary, 
Federal Maritime Commission, Washington, D.C. 20573. Such filing shall 
consist of:
    (1) A true copy and 7 additional copies of the filed agreement;
    (2) Where required by this part, an original and five copies of the 
completed Information Form Referenced at subpart E of this part; and
    (3) A letter of transmittal as described in paragraph (b) of this 
section.
    (b)(1) A filed agreement, to include such supporting documents as 
are submitted, shall be forwarded to the Commission via a letter of 
transmittal.
    (2) The letter of transmittal shall: (i) Identify all of the 
documents being transmitted including, in the instance of a modification 
to an effective agreement, the full name of the effective agreement, the 
Commission-assigned agreement number of the effective agreement and the 
revision, page and/or appendix number of the modification being filed; 
(ii) provide a concise, succinct summary of the filed agreement or 
modification separate and apart from any narrative intended to provide 
support for the acceptability of the agreement or modification; (iii) 
clearly provide the typewritten or otherwise imprinted name, position, 
business address and telephone number of the forwarding party; and, (iv) 
be signed in the original by the forwarding party or on the forwarding 
party's behalf by an authorized employee or agent of the forwarding 
party.
    (3) To facilitate the timely and accurate publication of the Federal 
Register Notice, the letter of transmittal shall also provide a current 
list of the agreement's participants where such information is not 
provided elsewhere in the transmitted documents.
    (c) Any agreement which does not meet the filing requirements of 
this section, including any applicable Information Form requirements, 
shall be rejected in accordance with Sec. 572.601.
    (d) Assessment agreements shall be filed and shall be effective upon 
filing.
    (e) Parties to agreements with expiration dates shall file any 
modification seeking renewal for a specific term or elimination of a 
termination date in sufficient time to accommodate the waiting period 
required under the Act.
    (f) Agreement filings for Commission action requiring an Information 
Form and review by the Commission shall be accompanied by remittance of 
a $1,666 filing fee; agreement filings for Commission action not 
requiring an Information Form, but requiring review by the Commission, 
shall be accompanied by remittance of a $841 filing fee; agreement 
filings reviewed under delegated authority shall be accompanied by 
remittance of a $391 filing fee; and agreement filings for terminal and 
carrier exempt agreements shall be accompanied by remittance of a $131 
filing fee.

[49 FR 45351, Nov. 15, 1984, as amended at 57 FR 40619, Sept. 4, 1992; 
59 FR 63908, Dec. 12, 1994; 61 FR 11574, Mar. 21, 1996; 63 FR 50537, 
Sept. 22, 1998]

    Effective Date Note: At 63 FR 50537, Sept. 22, 1998, Sec. 572.401(f) 
was revised, effective Nov. 2, 1998. For the convenience of the user, 
the superseded text is set forth as follows:

Sec. 572.401  General requirements.

                                * * * * *

    (f) Agreement filings for Commission action requiring an Information 
Form and review by the Commission shall be accompanied by remittance of 
a $1,402 filing fee; agreement filings for Commission action not 
requiring an Information Form, but requiring review by the Commission, 
shall be accompanied by remittance of a $695 filing fee; agreement 
filings reviewed under delegated authority shall be accompanied by 
remittance of a $353 filing fee; and agreement filings for terminal and 
carrier exempt agreements shall be accompanied by remittance of a $120 
filing fee.

[[Page 250]]



Sec. 572.402  Form of agreements.

    The requirements of this section apply to all agreements except for 
cancellations, marine terminal agreements, and assessment agreements.
    (a) Agreements shall be clearly and legibly typewritten on one side 
only of 8\1/2\ inch by 11 inch durable white loose-leaf paper, providing 
a margin of not less than three-quarters of an inch on all edges.
    (b) The first page of every agreement or appendix shall be the Title 
Page and shall include:
    (1) The name in which the agreement holds out service, or, in the 
absence of such a holding out, the full name of the agreement;
    (2) Once assigned, the Commission-assigned agreement number;
    (3) The generic classification of the agreement in conformity with 
the definitions in Sec. 572.104;
    (4) The date on which the entire agreement was last republished in 
accordance with Sec. 572.403(g); and
    (5) If applicable, the currently effective expiration date of the 
agreement and/or any specific provision thereof.
    (c) Each agreement page (including modifications and appendices) 
shall be identified by printing the agreement name (as shown on the 
agreement Title Page) and, once assigned, the applicable Commission-
assigned agreement number at the top of each page.
    (d) Each agreement and/or modification filed will be accompanied by 
a separate signature page, appended as the last page of the item, which 
is signed in the original by each of the parties personally or by an 
authorized representative, indicating immediately below each signature, 
the typewritten full name of the signing party and his or her position, 
including organizational affiliation.
    (e) The body of the agreement shall contain:
    (1) Immediately following the Title Page, a Table of Contents 
providing for the location of all agreement provisions.
    (2) Following the Table of Contents, the body of the agreement 
setting forth the operative provisions of the agreement in the order 
prescribed by Secs. 572.403 and 572.404. Any additional material/
provisions shall be set forth as consecutively numbered articles.
    (f) Any nonsubstantive provisions, as defined in Sec. 572.302, may 
be separated from the main body of the agreement text by the inclusion 
of an appendix to the agreement. Additional provisions which are 
permitted to be included in an appendix are referred to in 
Secs. 572.403(b)(3), 572.403(b)(6) and 572.404(a)(1). Such appendices 
must comply with the format requirements of paragraphs (a) and (c) of 
this section. Such appendices are to be serialized alphabetically with 
the first such appendix being designated on its first page as appendix 
A.
    (g) All pages subsequent to the Title Page shall be numbered in the 
upper right-hand corner. At the option of the parties, the numbering of 
the pages may start with the first page following the Title Page as Page 
No. 1 and continue consecutively thereafter; or, in the alternative, the 
pages containing the Table of Contents may be discretely numbered using 
consecutive Roman numerals with all pages subsequent to the Table of 
Contents being consecutively numbered beginning with Page No. 1. In 
either event, the first edition of any one page shall be designated in 
the upper right-hand corner as Original Page No. ----.

[49 FR 45351, Nov. 15, 1984; 49 FR 48928, Dec. 17, 1984; 57 FR 40619, 
Sept. 4, 1992; 61 FR 11575, Mar. 21, 1996]



Sec. 572.403  Agreement provisions--organization.

    (a) All agreements, except for cancellations, marine terminal 
agreements, and assessment agreements, shall be organized and shall 
include the content as provided by this section. The article numbers 
hereinafter enumerated are reserved for their particular respective 
provision or authority as indicated in this section and Sec. 572.404 and 
may not be used for any other subject or purpose nor may the specified 
subject matter appear elsewhere in the agreement except as herein 
provided. In the instance of a legitimately inapplicable provision, the 
article number and title are to be included in the text followed by the 
word, ``None''.
    (b) All agreements shall organize and number the following articles 
in the

[[Page 251]]

following order and shall observe the guidelines as to content as 
provided in this section. Additional articles required to definitively 
express the complete understanding between the parties to the agreement 
and not otherwise incorporated in appendices to the agreement shall 
immediately follow the articles enumerated in this subpart (and, where 
applicable, in Sec. 572.404) and shall be numbered consecutively, 
commencing with Article 14.
    (1) Article 1--Full name of the agreement.
    (2) Article 2--Purpose of the agreement.
    (3) Article 3--Parties to the agreement. List the current parties to 
the agreement to include for each participant: (i) the full legal name 
of the party to include any FMC-assigned agreement number associated 
with that name; and (ii) the address of its principal office (to the 
exclusion of the address of any agent or representative not an employee 
of the participating carrier or association). In the alternative to 
publishing the membership of the agreement in Article 3, the membership 
may be published in a designated appendix to the agreement and the 
designated appendix indicated by cross reference in Article 3.
    (4) Article 4--Geographic scope of the agreement. State the ports or 
port ranges to which the agreement applies and any inland points or 
areas to which it also applies with respect to the exercise of the 
collective activities contemplated and authorized in the agreement.
    (5) Article 5--Overview of agreement authority. State the 
authorities, as set forth in Sec. 572.201 of this part, intended to be 
collectively exercised under the auspices of the agreement. To the 
extent that the summary provided does not represent the full arrangement 
between the parties, additional articles or appendices of the parties' 
own designation and subsequent to these enumerated articles will be 
required to provide the specification of the authority to be exercised 
and the mechanics of that exercise. Article 5 is not necessarily 
definitive of the authority that the parties may collectively exercise 
pursuant to the agreement and parties may rely on the contents of the 
entire agreement as authority for their activities.
    (6) Article 6--Officials of the agreement and delegations of 
authority. Specify, by organizational title, the administrative and 
executive officials determined by the parties to the agreement to be 
responsible for designated affairs of the agreement and the respective 
duties and authorities delegated to those officials. At a minimum, 
specify: (i) The officials with authority to file agreements and 
agreement modifications and to submit associated supporting materials or 
with authority to delegate such authority; and, (ii) a statement as to 
any designated U.S. representative of the agreement required by this 
chapter. Where convenient, the contents of this article may be published 
in a designated appendix to the agreement and the designated appendix 
indicated by cross reference in Article 6.
    (7) Article 7--Membership, withdrawal, readmission and expulsion. 
Specify the terms and conditions for admission, withdrawal, readmission 
and expulsion to or from membership in the agreement, including 
membership fees, refundable deposits and other fees or charges 
associated with membership. Two-party agreements which do not involve 
any form of rate, charge or tariff determination or publication 
authority and which do not otherwise have any conditions of agreement 
participation other than the commitment of the physical resources of the 
respective parties are relieved of the requirements of this 
subparagraph. In such a case, the article number and name shall be 
designated as provided in paragraphs (a) and (b)(1) of this section.
    (8) Article 8--Voting. Specify the procedures, including quorum 
requirements, by which the agreement membership exercises its collective 
authority to choose, endorse, decide the disposition of, defeat, or 
authorize any particular matter, issue or activity.
    (9) Article 9--Duration and termination of the agreement. Specify, 
where applicable, the date on which the agreement terminates and 
describe the procedures to be followed to terminate the agreement.

[49 FR 45351, Nov. 15, 1984; 49 FR 48928, Dec. 17, 1984. Redesignated 
and amended at 61 FR 11575, Mar. 21, 1996]

[[Page 252]]



Sec. 572.404  Organization of conference and interconference agreements.

    (a) Each conference agreement in addition to Articles 1 through 9 
contained in Sec. 572.403, and such other matters as may be necessary to 
express the full understanding of the parties, shall include the 
following articles organized and including the content as provided in 
this section:
    (1) Article 10--Neutral body policing. State that, at the request of 
any member, the conference shall engage the services of an independent 
neutral body to fully police the obligations of the conference and its 
members. Include a description of any such neutral body authority and 
procedures related thereto. In the alternative to publishing the neutral 
body and procedures description in Article 10, the description may be 
published in a designated appendix to the agreement and the designated 
appendix indicated by cross reference in Article 10.
    (2) Article 11--Prohibited acts. State affirmatively that the 
conference shall not engage in conduct prohibited by section 10(c)(1) or 
10(c)(3) of the Act.
    (3) Article 12--Consultation: Shippers' requests and complaints. 
Specify the procedures for consultation with shippers and for handling 
shippers' requests and complaints.
    (4) Article 13--Independent action.
    The regulations for independent action are contained in section 
572.801.
    (5) Article 14--Service contracts.
    The regulations for service contracts are contained in section 
572.802.
    (b)(1) Each interconference agreement, in addition to Articles 1 
through 9 contained in Sec. 572.403, and Articles 10, 11, and 12 
contained in paragraph (a) of this section, shall include the following 
article: Article 13--Independent Action which specifies the independent 
action procedures of the agreement.
    (2) Each agreement between carriers not members of the same 
conference must provide the right of independent action for each 
carrier.
    (3) Each agreement between conferences must provide the right of 
independent action for each conference.

[49 FR 45351, Nov. 15, 1984, as amended at 53 FR 7528, Mar. 9, 1988; 57 
FR 54531, Nov. 19, 1992. Redesignated and amended at 61 FR 11575, Mar. 
21, 1996]



Sec. 572.405  Modifications of agreements.

    The requirements of this section apply to all agreements except for 
marine terminal agreements and assessment agreements.
    (a) Agreement modifications shall be: filed in accordance with the 
provisions of 572.401 and in the format specified in 572.402; with the 
content and organization specified in 572.403 and 572.404 and in 
accordance with this section.
    (b) Agreement modifications shall be made by reprinting the entire 
page on which the matter being changed is published. Such modified pages 
shall be designated as revised pages and shall publish in the upper 
right-hand corner of the new page the consecutive denomination of the 
revision, e.g., 1st Revised Page 5.
    (c) If a modification exceeds the page being modified and the 
parties do not wish to modify the entire agreement, the additional 
material may be published on an original page, designated with the same 
number as the page being modified and with an alphabetical suffix, i.e. 
Original Page 5a.
    (d) The language being modified shall be indicated on the page filed 
as follows:
    (1) Language being deleted or superseded shall be struck through; 
and,
    (2) New and initial or replacement language shall immediately follow 
the language being superseded and be underlined.
    (3) As an alternative to publishing such indications of change on 
the filed page, the filed page may be submitted devoid of such 
indications if the filing is accompanied by a page, submitted for 
information/illustration only, setting forth the proposed modifications 
in accordance with the format prescribed in paragraphs (d) (1) and (2) 
of this section.
    (e) When a revised or new page is revised, or the entire agreement 
is reissued, the change indications in paragraphs (d)(1) and (d)(2) of 
this section are to be deleted from the republished pages.
    (f) If a modification requires the relocation of the provisions of 
the agreement, such modification shall be accompanied by a revised Table 
of Contents page which shall report the new location of the agreement's 
provisions.

[[Page 253]]

    (g)(1) In the instance of an agreement which publishes the 
indications of modifications, specified in paragraph (d) of this section 
on the filed agreement page itself, then, not later than two years after 
the last modification to the agreement, the entire agreement shall be 
republished incorporating such modifications as have been made and shall 
supersede the previous edition of the agreement.
    (2) Such republished agreement will be filed with the Commission in 
accordance with the filing (except as provided in paragraph (g)(3) of 
this section), format and content requirements of this part and shall 
contain nothing other than the previously effective language and such 
nonsubstantive modifications as are necessary to accomplish the 
republication.
    (3) The filing of a republished agreement, as described in paragraph 
(g)(2) of this section, may be accomplished by filing only an executed 
original true copy. No Information Form requirements apply to the filing 
of a republished agreement.

[49 FR 45351, Nov. 15, 1984. Redesignated and amended at 61 FR 11575, 
Mar. 21, 1996]



Sec. 572.406  Application for waiver.

    (a) Upon showing of good cause, the Commission may waive the 
requirements of Secs. 572.401, 572.402, 572.403, 572.404 and 572.405.
    (b) Requests for such a waiver shall be submitted in advance of the 
filing of the agreement to which the requested waiver would apply and 
shall state:
    (1) The specific provisions from which relief is sought;
    (2) The special circumstances requiring the requested relief; and
    (3) Why granting the requested waiver will not substantially impair 
effective regulation of the agreement.

[61 FR 11575, Mar. 21, 1996]



Sec. 572.407  Complete and definite agreements.

    (a) Any agreement required to be filed by the Act and this part 
shall be the complete agreement among the parties and shall specify in 
detail the substance of the understanding of the parties.
    (b) Except as provided in paragraph (c) of this section, agreement 
clauses which contemplate a further agreement or give the parties 
authority to discuss and/or negotiate a further agreement, the terms of 
which are not fully set forth in the enabling agreement, will be 
permitted only if the enabling agreement indicates that any such further 
agreement cannot go into effect unless filed and effective under the 
Act.
    (c) Further specific agreements or understandings which are 
established pursuant to express enabling authority in an agreement are 
considered interstitial implementation and are permitted without further 
filing under section 5 of the Act only if the further agreement concerns 
routine operational or administrative matters, including the 
establishment of tariff rates, rules, and regulations.

[49 FR 45351, Nov. 15, 1984. Redesignated at 61 FR 11575, Mar. 21, 1996]



                Subpart E--Information Form Requirements

    Source: 61 FR 11575, Mar. 21, 1996, unless otherwise noted.



Sec. 572.501  General requirements.

    (a) Certain agreements must be accompanied, upon their initial 
filing, with an Information Form setting forth information and data on 
the filing parties' prior cargo carryings, revenue results and port 
service patterns.
    (b) The filing parties to an agreement subject to this subpart shall 
complete and submit an original and five copies of the applicable 
Information Form at the time the agreement is filed. Copies of the 
applicable Form may be obtained at the Office of the Secretary or by 
writing to the Secretary of the Commission.
    (c) A complete response in accordance with the instructions on the 
Information Form shall be supplied to each item. Whenever the party 
answering a particular part is unable to supply a complete response, 
that party shall provide either estimated data (with an explanation of 
why precise data are not available) or a detailed

[[Page 254]]

statement of reasons for noncompliance and the efforts made to obtain 
the required information.
    (d) The Information Form for a particular agreement may be 
supplemented with any other information or documentary material.
    (e) The Information Form and any additional information submitted in 
conjunction with the filing of a particular agreement shall not be 
disclosed except as provided in Sec. 572.608.



Sec. 572.502  Subject agreements.

    Agreements subject to this subpart are divided into two classes, 
Class A/B and Class C. When used in this subpart:
    (a) Class A/B agreement means an agreement that is one or more of 
the following:
    (1) A rate agreement as defined in Sec. 572.104(aa) and 
Sec. 572.104(bb);
    (2) A joint service agreement as defined in Sec. 572.104(o);
    (3) A pooling agreement as defined in Sec. 572.104(y);
    (4) An agreement authorizing discussion or exchange of data on 
vessel-operating costs as defined in Sec. 572.104(kk); or
    (5) An agreement authorizing regulation or discussion of service 
contracts as defined in Sec. 572.104(dd).
    (b) Class C agreement means an agreement that is one or more of the 
following:
    (1) A sailing agreement as defined in Sec. 572.104(cc); or
    (2) A space charter agreement as defined in Sec. 572.104(hh).



Sec. 572.503  Information form for Class A/B agreements.

    The Information Form for Class A/B agreements, with accompanying 
instructions that are intended to facilitate the completion of the Form, 
is set forth in appendix A of this part.
    The instructions should be read in conjunction with the Shipping Act 
of 1984 and with this part 572.



Sec. 572.504  Information form for Class C agreements.

    The Information Form for Class C agreements, with accompanying 
instructions that are intended to facilitate the completion of the Form, 
is set forth in appendix B of this part. The explanation and 
instructions should be read in conjunction with the Shipping Act of 1984 
and 46 CFR part 572.



Sec. 572.505  Application for waiver.

    (a) Upon a showing of good cause, the Commission may waive any part 
of the information form requirements of Sec. 572.503 or Sec. 572.504.
    (b) A request for such a waiver must be approved in advance of the 
filing of the information form to which the requested waiver would 
apply. The Commission will take into account the presence or absence of 
shipper complaints in considering an application for a waiver. Requests 
for a waiver shall state:
    (1) The specific requirements from which relief is sought;
    (2) The special circumstances requiring the requested relief; and
    (3) Why granting the requested waiver will not substantially impair 
effective regulation of the agreement, either during pre-implementation 
review or during post-implementation monitoring.



                     Subpart F--Action on Agreements



Sec. 572.601  Preliminary review--rejection of agreements.

    (a) The Commission shall make a preliminary review of each filed 
agreement to determine whether the agreement is in compliance with the 
filing requirements of the Act and this part and, where applicable, 
whether the accompanying Information Form is complete or, where not 
complete, whether the deficiency is adequately explained or is excused 
by a waiver granted by the Commission under Sec. 572.505.
    (b)(1) The Commission shall reject any agreement that otherwise 
fails to comply with the filing and Information Form requirements of the 
Act and this part. The Commission shall notify in writing the person 
filing the agreement of the reason for rejection of the agreement. The 
entire filing, including the agreement, the Information Form and any 
other information or documents submitted, shall be returned to the 
filing party.

[[Page 255]]

    (2) Should the agreement be refiled, the full waiting period must be 
observed.

[49 FR 45351, Nov. 15, 1984, as amended at 61 FR 11576, Mar. 21, 1996]



Sec. 572.602  Federal Register notice.

    (a) With the exception of marine terminal facilities agreements, as 
defined in Sec. 572.311(a), a notice of any filed agreement which is not 
rejected pursuant to Sec. 572.601 will be transmitted to the Federal 
Register within seven days of the date of filing.
    (b) The notice will include:
    (1) A short title for the agreement;
    (2) The identity of the parties to the agreement and the filing 
party;
    (3) The Federal Maritime Commission agreement number;
    (4) A concise summary of the agreement's contents;
    (5) A statement that the agreement is available for inspection at 
the Commission's offices; and
    (6) The final date for filing comments regarding the agreement.

[49 FR 45351, Nov. 15, 1984, as amended at 58 FR 5631, Jan. 22, 1993]



Sec. 572.603  Comment.

    (a) Persons may file with the Secretary written comments regarding a 
filed agreement. Such comments will be submitted in an original and ten 
(10) copies and are not subject to any limitations except the time 
limits provided in the Federal Register notice. Late-filed comments will 
be received only by leave of the Commission and only upon a showing of 
good cause. If requested, comments and any accompanying material shall 
be accorded confidential treatment to the fullest extent permitted by 
law. Such requests must include a statement of legal basis for 
confidential treatment including the citation of appropriate statutory 
authority. Where a determination is made to disclose all or a portion of 
a comment, notwithstanding a request for confidentiality, the party 
requesting confidentiality will be notified prior to disclosure.
    (b) The filing of a comment does not entitle a person to: (1) reply 
to the comment by the Commission; (2) the institution of any Commission 
or court proceeding; (3) discussion of the comment in any Commission or 
court proceeding concerning the filed agreement; or (4) participation in 
any proceeding which may be instituted.

[49 FR 45351, Nov. 15, 1984, as amended at 57 FR 40619, Sept. 4, 1992]



Sec. 572.604  Waiting period.

    (a) The waiting period before an agreement becomes effective shall 
commence on the date that an agreement is filed with the Commission.
    (b) Unless suspended by a request for additional information or 
extended by court order, the waiting period terminates and an agreement 
becomes effective on the latter of the 45th day after the filing of the 
agreement with the Commission or on the 30th day after publication of 
notice of the filing in the Federal Register.
    (c) The waiting period is suspended on the date when the Commission, 
either orally or in writing, requests additional information or 
documentary materials pursuant to sectio