[Title 46 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2007 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          46


          Part 500 to End

          Revised as of October 1, 2007


          Shipping
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2007
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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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........................     279
      Alphabetical List of Agencies Appearing in the CFR......     297
      List of CFR Sections Affected...........................     307

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 46 CFR 501.1 refers 
                       to title 46, part 501, 
                       section 1.

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

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                               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, 2007), 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 
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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, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, 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 
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    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.

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appearing in the Code of Federal Regulations.

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or write to the Director, Office of the Federal Register, National 
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mail, gpoaccess@gpo.gov.

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
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site for public law numbers, Federal Register finding aids, and related 
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register. The NARA site also contains links to GPO Access.

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

October 1, 2007.

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                               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, 
DHS. The eighth volume, containing parts 200 to 499, includes chapter 
II--Maritime Administration, DOT and chapter III--Coast Guard (Great 
Lakes Pilotage), DHS. 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, 2007.

    Subject indexes appear in chapter I, subchapters A--I, I-A, J, K, L, 
and Q--W following the subchapters.

    For this volume, Bonnie Fritts and Robert Sheehan were Chief 
Editors. The Code of Federal Regulations publication program is under 
the direction of Michael L. White, assisted by Ann Worley.


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                           TITLE 46--SHIPPING




                  (This book contains part 500 to End)

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

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

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                 CHAPTER IV--FEDERAL MARITIME COMMISSION




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

           SUBCHAPTER A--GENERAL AND ADMINISTRATIVE PROVISIONS
Part                                                                Page
500         [Reserved]

501             The Federal Maritime Commission--General....           5
502             Rules of practice and procedure.............          19
503             Public information..........................          91
504             Procedures for environmental policy analysis         121
505             Administrative offset.......................         126
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.....................         130
508             Employee ethical conduct standards and 
                    financial disclosure regulations........         136
 SUBCHAPTER B--REGULATIONS AFFECTING OCEAN SHIPPING IN FOREIGN COMMERCE
515             Licensing, financial responsibility 
                    requirements, and general duties for 
                    ocean transportation intermediaries.....         137
520             Carrier automated tariffs...................         161
525             Marine terminal operator schedules..........         176
530             Service contracts...........................         180
531             NVOCC Service arrangements..................         191
535             Ocean common carrier and marine terminal 
                    operator agreements subject to the 
                    Shipping Act of 1984....................         202
540             Passenger vessel financial responsibility...         239
545             Interpretations and statements of policy....         256
  SUBCHAPTER C--REGULATIONS AND ACTIONS TO ADDRESS RESTRICTIVE FOREIGN 
                           MARITIME PRACTICES
550             Regulations to adjust or meet conditions 
                    unfavorable to shipping in the foreign 
                    trade of the United States..............         258

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551             Actions to adjust or meet conditions 
                    unfavorable to shipping in the U.S. 
                    foreign trade...........................         263
555             Actions to address adverse conditions 
                    affecting U.S.-flag carriers that do not 
                    exist for foreign carriers in the United 
                    States..................................         263
560             Actions to address conditions unduly 
                    impairing access of U.S.-flag vessels to 
                    ocean trade between foreign ports.......         267
565             Controlled carriers.........................         272
   SUBCHAPTER D--REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED 
                ACTIVITIES IN FOREIGN COMMERCE [RESERVED]

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           SUBCHAPTER A_GENERAL AND ADMINISTRATIVE PROVISIONS



                           PART 500 [RESERVED]



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 the Director, Office of Operations.
501.26 Delegation to and redelegation by the Director, Bureau of 
          Certification and Licensing.
501.27 Delegation to and redelegation by the Director, Bureau of Trade 
          Analysis.
501.28 Delegation to the Director, Bureau of Enforcement.
501.29 Delegation to and redelegation by the Director, Office 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. 876, 1111, and 1701-1720; Reorganization Plan No. 7 of 1961, 26 FR 
7315, August 12, 1961; Pub. L. 89-56, 70 Stat. 195; 5 CFR Part 2638; 
Pub. L. 89-777, 80 Stat. 1356; Pub. L. 104-320, 110 Stat. 3870.

    Source: 70 FR 7659, Feb. 15, 2005, 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 oceanborne foreign commerce of 
the United States under provisions of the Shipping Act of 1984, as 
amended by the Ocean Shipping Reform Act of 1998 (46 U.S.C. app. 
sections 1701-1720); section 19 of the Merchant Marine Act, 1920 (46 
U.S.C. app. section 876); the Foreign Shipping Practices Act of 1988 (46 
U.S.C. app. section 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. sections 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 than three 
Commissioners may be appointed from the same political party. The 
President designates one of the Commissioners to serve as the Chairman 
of the Commission (``Chairman'').
    (c) Terms and vacancies. The term of each member of the Commission 
is five 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

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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 or vacancies in the Commission shall not 
impair the power of the Commission to execute its functions. The 
affirmative vote of a majority of the members of the Commission is 
required to dispose of any matter 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. Proxy votes of absent members shall be permitted.
    (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, 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.
    (c) Office of the Secretary. (FOIA and Privacy Act Officer, Federal 
Register Liaison.)
    (1) Office of Consumer Affairs and Dispute Resolution Services.
    (2) [Reserved]
    (d) Office of the General Counsel. (Ethics Official; Chair, 
Permanent Task Force on International Affairs; Legislative Counsel.)
    (e) Office of Administrative Law Judges.
    (f) Office of Equal Employment Opportunity.
    (g) Office of the Inspector General.
    (h) Office of Operations.
    (1) Bureau of Certification and Licensing.
    (i) Office of Passenger Vessels & Information Processing.
    (ii) Office of Ocean Transportation Intermediaries.
    (2) Bureau of Trade Analysis.
    (i) Office of Agreements.
    (ii) Office of Economics & Competition Analysis.
    (iii) Office of Service Contracts & Tariffs.
    (3) Bureau of Enforcement.
    (4) Area Representatives.
    (i) Office of Administration. (Chief Acquisition Officer, Audit 
Followup and Management Controls Official, Chief Information Officer, 
Chief Financial Officer.)
    (1) Office of Budget and Financial Management.
    (2) Office of Human Resources.
    (3) Office of Information Technology. (Senior IT Officer, Forms 
Control Officer, Network Security Officer, Records Management Officer.)
    (4) Office of Management Services. (Physical Security, FMC 
Contracting Officer.)
    (j) Boards and Committees.
    (1) Executive Resources Board.
    (2) Performance Review Board.



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 Operations, the Office of Administration, and officials performing 
the functions of Information Security Officer and Designated Agency 
Ethics Official, report to the Chairman of the Commission.
    (b) Office of Operations. The Bureau of Certification and Licensing, 
Bureau of Enforcement, Bureau of Trade Analysis, and Area 
Representatives report to the Office of Operations.

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    (c) Office of Administration. The Office of Budget and Financial 
Management, Office of Human Resources, Office of Information Technology, 
and Office of Management Services report to the Office of 
Administration. The Office of Equal Employment Opportunity and the 
Office of the Inspector General receive administrative assistance from 
the Director of Administration. All other units of the Commission 
receive administrative guidance from the Director of Administration.
    (d) Office of the Secretary. The Office of Consumer Affairs and 
Dispute Resolution Services reports to the Office of the Secretary.



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 ensures 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, Operations, and Administration 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 the Freedom of Information Act, the 
Privacy Act, and the Federal Activities Inventory Reform Act of 1998. 
The Chairman appoints the heads of major administrative units after 
consultation with the 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 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's programs. Additionally, the Director provides 
leadership and advice to managers and supervisors in carrying out their 
respective responsibilities in equal employment opportunity. The EEO 
Office administers and implements these program responsibilities in 
accordance with Equal Employment Opportunity 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.

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    (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 Orders 12958 and 12968.
    (4) The Designated Agency Ethics Official and Alternate are 
appropriate agency employees formally designated under 5 CFR 2638.202 
and Sec. 508.101 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, and 
serving as the Commission's designee(s) to the Office of Government 
Ethics 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, 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.
    (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.
    (F) Oversees the content and organization of the Commission's Web 
site and authorizes the publication of documents thereon.
    (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. Sec. 2903(b).
    (3) Manages the Commission's library and related services.
    (4) Through the Office of Consumer Affairs and Dispute Resolution 
Services, has responsibility for developing and implementing the 
Alternative Dispute Resolution Program, responds to consumer inquiries 
and complaints, and coordinates the Commission's efforts to resolve 
disputes within the shipping industry. The Director of the Office of 
Consumer Affairs and Dispute Resolution Services is designated as the 
agency Dispute Resolution Specialist pursuant to section 3 of the 
Administrative Dispute Resolution Act of 1996, Public Law 104-320.
    (d) General Counsel. Under the direction and management of the 
General Counsel, the Office of the General Counsel:

[[Page 9]]

    (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 Sec. Sec. 
501.27(e) and 501.27(g).
    (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 that may impact the programs and activities of the 
Commission; 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) Serves as the Chair of the Permanent Task Force on 
International Affairs or designates a person to serve as the Chair.
    (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 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) Office of Operations. (1) The Director of Operations:
    (i) As senior staff official, is responsible to the Chairman for the 
management and coordination of the Commission's Bureaus of Certification 
and Licensing; Trade Analysis; Enforcement; and the Commission's Area 
Representatives, as more fully described below, and thereby implements 
the regulatory policies of the Commission and directives of the 
Chairman;
    (ii) 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.
    (2) [Reserved]
    (g) Under the direction and management of the Bureau Director, the 
Bureau of Certification and Licensing:
    (1) Through the Office of Transportation Intermediaries, has 
responsibility for reviewing applications for Ocean Transportation 
Intermediary (``OTI'') licenses, and maintaining records about 
licensees.
    (2) Through the Office of Passenger Vessels and Information 
Processing, has responsibility for reviewing applications for 
certificates of financial responsibility with respect to passenger

[[Page 10]]

vessels, managing all activities with respect to evidence of financial 
responsibility for OTIs and passenger vessel owner/operators, and for 
developing and maintaining all Bureau databases and records of OTI 
applicants and licensees.
    (h) Under the direction and management of the Bureau Director, the 
Bureau of Trade Analysis, through its Office of Agreements; Office of 
Economics and Competition Analysis; and Office of Service Contracts and 
Tariffs, reviews agreements and monitors the concerted activities of 
common carriers by water, reviews and analyzes service contracts, 
monitors rates of government controlled carriers, reviews carrier 
published tariff systems under the accessibility and accuracy standards 
of the Shipping Act of 1984, responds to inquiries or issues that arise 
concerning service contracts or tariffs, and is responsible for 
competition oversight and market analysis.
    (i) 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 and Sec. 502.604 of this chapter, 
and represents the Commission in proceedings and circumstances as 
designated;
    (3) Acts as staff counsel to the Director of Operations 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;
    (5) Conducts investigations leading to enforcement action, advises 
the Commission of evolving competitive practices in international 
oceanborne commerce, and assesses the practical repercussions of 
Commission regulations.
    (j) Area Representatives. Maintain a presence in locations other 
than Washington, DC, with activities including the following:
    (1) Representing the Commission within their respective geographic 
areas;
    (2) 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;
    (3) Furnishing to interested persons information, advice, and access 
to Commission public documents;
    (4) Receiving and resolving informal complaints, in coordination 
with the Director, Office of Consumer Affairs and Dispute Resolution 
Services;
    (5) Investigating potential violations of the shipping statutes and 
the Commission's regulations;
    (6) Conducting shipping industry surveillance programs to ensure 
compliance with the shipping statutes and the Commission's regulations. 
Such programs include common carrier audits, service contract audits and 
compliance checks of OTIs;
    (7) Upon request of the Bureau of 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, and assisting in the background surveys of OTI 
applicants;
    (8) Conducting special surveys and studies, and recommending 
policies to strengthen enforcement of the shipping laws;
    (9) Maintaining liaison with Federal and State agencies with respect 
to areas of mutual concern; and
    (10) Providing assistance to the various bureaus and offices of the 
Commission, as appropriate and when requested.
    (k) Office of Administration. (1) The Director of Administration:
    (i) Provides administrative guidance to all units of the Commission, 
except the Offices of Equal Employment Opportunity and the Inspector 
General, which are provided administrative assistance;
    (ii) Is the agency's Chief Acquisition Officer under the Services 
Acquisition Reform Act of 2003, Public Law 108-136, 117 Stat. 1663 and 
Commission Order No. 112;

[[Page 11]]

    (iii) Is the Audit Follow-up and Management (Internal) Controls 
Official for the Commission under Commission Orders 103 and 106;
    (iv) Is the agency's Chief Financial Officer;
    (v) Serves as the agency's lead executive for strategic planning, 
implementation and compliance with the Government Performance and 
Results Act of 1993, Public Law 103-62, 107 Stat. 285;
    (2) The Deputy Director of Administration is the Commission's Chief 
Information Officer.
    (3) The Office of Administration ensures the periodic review and 
updating of Commission orders. Under the direction and management of the 
Director of Administration, the Office of Administration is responsible 
for the management and coordination of the Offices of: Budget and 
Financial Management, Human Resources, Information Technology, and 
Management Services. The Office of Administration provides 
administrative support to the program operations of the Commission. The 
Director of Administration interprets governmental policies and programs 
and administers these in a manner consistent with Federal guidelines, 
including those involving financial management, human resources, 
information technology, and procurement. 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 activities. The Director 
of Administration is responsible for directing and administering the 
Commission's training and development function. The Director of 
Administration also acts as the Commission's representative to the Small 
Agency Council. Other programs are carried out by its Offices, as 
follows:
    (i) 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, ensures accountability for official passports; and assists in 
the development of proper levels of user fees.
    (ii) The Office of Human Resources, 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.
    (iii) Office of Information Technology, under the direction and 
management of the Office Director, administers the Commission's 
information technology (``IT'') program under the Paperwork Reduction 
Act of 1995, as amended, as well as other applicable laws that prescribe 
responsibility for operating the IT program. The Office provides 
administrative support with respect to information technology to the 
program operations of the Commission. The Office interprets governmental 
policies and programs for information technology and administers these 
policies and programs 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 functions include: conducting IT 
management studies and surveys; managing data telecommunications; 
developing and managing databases and applications; coordinating records 
management activities; administering IT contracts; and developing 
Paperwork Reduction Act clearances for submission to the Office of 
Management and Budget. The Office is also responsible for managing the 
computer security and the records and forms programs. The Director of 
the Office serves as Senior IT Officer,

[[Page 12]]

Forms Control Officer, Computer Security Officer, and Records Management 
Officer.
    (iv) Office of Management Services, under the direction and 
management of the Office Director, directs and administers a 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 voice telecommunications; 
acquisition of all goods and services used by the Commission; building 
security and emergency preparedness; real and personal property 
management; printing and copying; mail services; graphic design; 
equipment maintenance; and transportation. The Office Director is the 
agency's liaison with the Small Agency Council's Procurement and 
Administrative Services Committees and with the General Services 
Administration (``GSA'') and the Department of Homeland Security 
(``DHS'') on building security Committee.
    (l) Boards and Committees. The following boards and committees are 
established by separate Commission orders to address matters relating to 
the overall operations of the Commission:
    (1) The Executive Resources Board (``ERB'') is composed of all 
Senior Executive Service members. The Chairman shall designate an ERB 
chair on a rotational basis beginning October 1 of each year. 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 Human Resources, who also serves as the Board's 
secretary. [Commission Order No. 95.]
    (2) The Performance Review Board (``PRB'') 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. [Commission 
Order No. 115.] Every three years, the PRB considers supervisors' 
recommendations as to whether Senior Executives of the Commission should 
be recertified under the Ethics Reform Act of 1989, and makes 
appropriate recommendations to the Commission's Chairman. [Commission 
Order No. 118.]



                         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 13]]

[GRAPHIC] [TIFF OMITTED] TR15FE05.000



          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 
Sec. Sec. 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:
    (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,

[[Page 14]]

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 within the meaning of section 
3(8) of the Shipping Act of 1984, except where a carrier submits a 
rebuttal statement pursuant to Sec. 565.3(b) of this chapter.



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) Authority, in the absence or preoccupation of the Director of 
Administration, to sign travel orders, nondocketed recommendations to 
the Commission, and other routine documents for the Director of 
Administration, consistent with the programs, policies, and precedents 
established by the Commission or the Director of Administration.



Sec. 501.25  Delegation to the Director, Office of Operations.

    The authorities listed in this section are delegated to the Director 
of Operations.
    (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. Sec. 3721.
    (b) Authority to approve administrative leave for Area 
Representatives.



Sec. 501.26  Delegation to and redelegation by the Director, Bureau of Certification and Licensing.

    Except where specifically redelgated in this section, the 
authorities listed in this section are delegated to the Director, Bureau 
of Certification and Licensing.
    (a) Authority to:
    (1) Approve or disapprove applications for OTI licenses; issue or 
reissue or transfer such licenses; and approve extensions of time in 
which to furnish the name(s) and ocean transportation intermediary 
experience of the managing partner(s) or officer(s) who will replace the 
qualifying partner or officer upon whose qualifications the original 
licensing was approved;
    (2) Issue a letter stating that the Commission intends to deny an 
OTI 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

[[Page 15]]

notice period; and rescind, or grant extensions of, the time specified 
in such letters;
    (3) Revoke the license of an OTI upon the request of the licensee;
    (4) Upon receipt of notice of cancellation of any instrument 
evidencing financial responsibility, notify the licensee in writing that 
its license will automatically be suspended or revoked, effective on the 
cancellation date of such instrument, unless new or reinstated evidence 
of financial responsibility is submitted and approved prior to such 
date, and subsequently order such suspension or revocation for failure 
to maintain proof of financial responsibility;
    (5) Revoke the ocean transportation intermediary license of a non-
vessel-operating common carrier not in the United States for failure to 
designate and maintain a person in the United States as legal agent for 
the receipt of judicial and administrative process;
    (6) Approve changes in an existing licensee's organization; and
    (7) 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.
    (8) The authorities contained in paragraphs (a)(3) and (a)(4) of 
this section are redelegated to the Director, Office of Transportation 
Intermediaries, in the Bureau of Certification and Licensing.
    (b) Authority to:
    (1) Approve applications for Certificates (Performance) and 
Certificates (Casualty) for passenger vessels, evidenced by a surety 
bond, guaranty or insurance policy, or combination thereof; 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 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 Sec. Sec. 
540.8(a) and 540.26(a) of this chapter.
    (c) Authority to approve amendments to escrow agreements filed under 
Sec. 540.5(b) of this Chapter when such amendments are for the purpose 
of changing names of principals, changing the vessels covered by the 
escrow agreement, changing the escrow agent, and changing the amount of 
funds held in escrow, provided that the changes in amount of funds 
result in an amount of coverage that complies with the requirements in 
the introductory text of Sec. 540.5 of this Chapter.

[70 FR 7659, Feb. 15, 2005, as amended at 70 FR 44866, Aug. 4, 2005]



Sec. 501.27  Delegation to and redelegation by the Director, Bureau of Trade Analysis.

    Except where specifically redelegated in this section, the 
authorities listed in this section are delegated to the Director, Bureau 
of Trade Analysis.
    (a) 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.

[[Page 16]]

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 535 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.
    (b) Authority to grant or deny applications filed under Sec. 
535.406 of this chapter for waiver of the form, organization and content 
requirements of Sec. Sec. 535.401, 535.402, 535.403, 535.404 and 
535.405 of this chapter.
    (c) Authority to grant or deny applications filed under Sec. 
535.504 of this chapter for waiver of the Information Form requirements 
in subpart E of part 535.
    (d) Authority to grant or deny applications filed under Sec. 
535.705 of this chapter for waiver of the reporting requirements in 
subpart G of part 535 of this chapter.
    (e) 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).
    (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 equal access agreements.
    (f) Authority to grant or deny shortened review pursuant to Sec. 
535.605 of this chapter for agreements for which authority is delegated 
in paragraph (e) of this section.
    (g) Subject to review by the General Counsel, authority to deny, but 
not approve, requests filed pursuant to Sec. 535.605 of this chapter 
for a shortened review period for agreements for which authority is not 
delegated under paragraph (e) of this section.
    (h) 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.
    (i) 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.
    (j) Authority to request controlled carriers to file justifications 
for existing or proposed rates, charges, classifications, rules or 
regulations, and to 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.
    (k) 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.
    (l)(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 of 1984, for relief from statutory and/or Commission tariff 
requirements.

[[Page 17]]

    (2) The authority under this paragraph is redelegated to the 
Director, Office of Service Contracts and Tariffs, in the Bureau of 
Trade Analysis.
    (m)(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 
Director, Office of Service Contracts and Tariffs, in the Bureau of 
Trade Analysis.
    (n) Authority contained in Part 530 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.
    (o) Authority to require Monitoring Reports from, or prescribe 
alternative periodic reporting requirements for, parties to agreements 
under Sec. Sec. 535.702(c) and (d) of this chapter.
    (p) Authority to require parties to agreements subject to the 
Monitoring Report requirements in Sec. 535.702(a)(2) of this chapter to 
report their agreement commodity data on a sub-trade basis pursuant to 
Sec. 535.703(d) of this chapter.

[70 FR 7659, Feb. 15, 2005; 72 FR 15613, Apr. 2, 2007]



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

    The authorities listed in this section are delegated to the 
Director, Bureau of Enforcement.
    (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 
transportation intermediary licenses.
    (b) [Reserved]



Sec. 501.29  Delegation to and redelegation by the Director, Office of Administration.

    Except where specifically redelegated in this section, the 
authorities listed in this section are delegated to the Director of 
Administration.
    (a) 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.
    (b)(1) Authority to approve, certify, or otherwise authorize those 
actions dealing with appropriations of funds made available to the 
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 paragraph (b) of this section is redelegated 
to the Director, Office of Budget and Financial Management.
    (c)(1) Authority to classify all positions GS-1 through GS-15 and 
wage grade positions.
    (2) The authority under paragraph (c) of this section is redelegated 
to the Director, Office of Human Resources.



                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.

[[Page 18]]

    (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 Secretary;
    (i) Office of Consumer Affairs and Dispute Resolution Services;
    (ii) [Reserved]
    (2) Office of the General Counsel;
    (3) Office of Administrative Law Judges;
    (4) Office of Equal Employment Opportunity;
    (5) Office of the Inspector General;
    (6) Office of Operations;
    (i) Bureau of Certification and Licensing;
    (ii) Bureau of Trade Analysis;
    (iii) Bureau of Enforcement;
    (iv) 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 at http://www.fmc.gov.

                               Los Angeles

Los Angeles Area Representative, P.O. Box 230, 839 South Beacon Street, 
Room 320, San Pedro, CA 90733-0230.

                              South Florida

South Florida Area Representative, P.O. Box 813609, Hollywood, FL 33081-
3609.

                               New Orleans

New Orleans Area Representative, U.S. Customs House, 423 Canal Street, 
Room 309B, New Orleans, LA 70130.

                                New York

New York Area Representative, Building No. 75, Room 205B, JFK 
International Airport, Jamaica, NY 11430.

                                 Seattle

Seattle Area Representative, c/o U.S. Customs, 7 South Nevada Street, 
Suite 100, Seattle, WA 98134.

    (7) Office of Administration;
    (i) Office of Budget and Financial Management;
    (ii) Office of Human Resources;
    (iii) Office of Information Technology; and
    (iv) Office of Management Services.
    (d) Submissions to bureaus and offices. 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.

[[Page 19]]

 Appendix A to Part 501--Federal Maritime Commission Organization Chart
[GRAPHIC] [TIFF OMITTED] TR15FE05.001



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 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; substitution and withdrawal of 
          representative.
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 [Sec. Sec. 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 Initiation of procedure to issue, amend, or repeal a 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.

[[Page 20]]

           Subpart E_Proceedings; Pleadings; Motions; Replies

502.61 Proceedings.
502.62 Complaints and fee.
502.63 Statute of limitations for reparations.
502.64 Answer to complaint; counter-complaint.
502.65 Replies to answers not permitted.
502.66 Order to show cause.
502.67 Exemption procedures--General.
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 [Reserved]
502.94 Prehearing conference.
502.95 Prehearing statements.

Exhibit No. 1 to Subpart F [Sec. 502.92] [Reserved]

                             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 Verification of documents.
502.113 Service by the Commission.
502.114 Service by parties of pleadings and other documents.
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.

                           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; postponement 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.

[[Page 21]]

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--Commission.
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

                Subpart P_Reconsideration of Proceedings

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

              Subpart Q_Refund or Waiver of Freight Charges

502.271 Special docket application for permission to refund or waive 
          freight charges.

Exhibit No. 1 to Subpart Q [Sec. 502.271(d)--Application for Refund or 
          Waiver of Freight Charges Due to Tariff on Quoting Error

                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.

[[Page 22]]

502.320 Service.
502.321 Applicability of other rules of this part.

                Subpart U_Alternative Dispute Resolution

502.401 Policy.
502.402 Definitions.
502.403 General authority.
502.404 Neutrals.
502.405 Confidentiality.
502.406 Arbitration.
502.407 Authority of the arbitrator.
502.408 Conduct of arbitration proceedings.
502.409 Arbitration awards.
502.410 Representation of parties.
502.411 Mediation and other alternative means of dispute resolution.

     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; 5 U.S.C. 571-584; 12 U.S.C. 1141j(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. 817d, 817e, 
1114(b), 1705, 1707-1711, 1713-1716; E.O. 11222 of May 8, 1965, 30 FR 
6469, 3 CFR, 1964-1965 Comp. P. 306; 21 U.S.C. 853a; Pub. L. 105-258, 
112 Stat. 1902.

    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 
Merchant Marine Act, 1920, Merchant Marine Act, 1936, Shipping Act of 
1984, as amended by the Ocean Shipping Reform Act of 1998, 
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 
proceeding. 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. [Rule 1.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 
FR 7807, Feb. 17, 1999]



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

[[Page 23]]

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. 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.)
    (e) 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. [Rule 2.]

[52 FR 27002, July 17, 1987, as amended at 53 FR 13270, Apr. 22, 1988; 
64 FR 7807, Feb. 17, 1999]



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.]



Sec. Sec. 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 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 Sec. Sec. 502.11 and 
502.153, may be waived by the Commission or the presiding officer in any 
particular case to prevent undue hardship, manifest injustice, or if the 
expeditious conduct of business so requires. [Rule 10.]



Sec. 502.11  Ex parte communications.

    (a) 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

[[Page 24]]

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;
    (b) 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 (e), (f) and (g) of this section;
    (c) ``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;
    (d) 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:
    (1) All such written communications;
    (2) Memoranda stating the substance of all such oral communications; 
and
    (3) All written responses and memoranda stating the substance of all 
oral responses to the materials described in paragraphs (d)(1) and 
(d)(2) of this section;
    (e) The Secretary shall place the materials described in paragraph 
(d) 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;
    (f) 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;
    (g) 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, as amended at 64 
FR 7807, Feb. 17, 1999; 64 FR 23551, May 3, 1999; 64 FR 33762, June 24, 
1999]



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. [Rule 12.]

[58 FR 27210, May 7, 1993, as amended at 64 FR 7807, Feb. 17, 1999]



         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

[[Page 25]]

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 appearance. 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.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7807, Feb. 17, 1999]



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; substitution and withdrawal of representative.

    (a) Upon filing of a complaint instituting proceedings or filing of 
an answer to an order or complaint, the party filing 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. Such notice shall 
indicate whether the representative wishes to be notified of decisions 
by telephone, facsimile transmission, or electronic mail. 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.
    (b) A Notice of Appearance should follow the form set forth in 
Exhibit No. 1 to this subpart.
    (c) 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 party to the Commission.
    (d) If an attorney wishes to withdraw from representing a party, 
such attorney shall file an appropriate motion seeking permission to 
withdraw and provide appropriate reasons for making the motion. Such 
motion will be decided in consideration of the factors and standards set 
forth in Rule 1.16 of the American Bar Association's Model Rules of 
Professional Conduct and by the courts.

[64 FR 7807, Feb. 17, 1999]



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

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7807, Feb. 17, 1999]



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.]

[[Page 26]]



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 must represent in 
writing, filed with the Secretary, that he is admitted to practice and 
in good standing. An attorney practicing before the Commission is 
expected to conform to the standards of conduct set forth in the 
American Bar Association's Model Rules of Professional Conduct in 
addition to the specific requirements of this chapter. [Rule 26.]

[64 FR 7807, Feb. 17, 1999]



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(g) 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 Sec. Sec. 
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; 64 FR 7807, Feb. 17, 
1999]



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.]



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:

[[Page 27]]

    (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.
    (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

[[Page 28]]

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), (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

[[Page 29]]

    (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 [Sec. Sec. 502.23, 502.26, 502.27] of Part 
                        502--Notice of Appearance

                       Federal Maritime Commission

    Docket No. ----------:
    Please enter my appearance in this proceeding as counsel for ------
----.
    I request to be informed of service of the administrative law 
judge's initial or recommended decision and of the Commission's decision 
in this proceeding by:
[ ] telephone (In the event that I am not available when you call, 
appropriate advice left with my office will suffice.)
[ ] facsimile transmission
[ ] electronic mail

________________________________________________________________________
[Name]

________________________________________________________________________
[Address]

________________________________________________________________________
[Telephone No.]

________________________________________________________________________
[Fax No.]

________________________________________________________________________
[E-mail address]

________________________________________________________________________
[Signature]

[64 FR 7807, Feb. 17, 1999]



                            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

[[Page 30]]

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, in rulemaking 
proceedings and in proceedings considering petitions the Director may 
become a party by designation if the Commission determines that the 
circumstances of the proceeding warrant such participation, and the 
Director will not ordinarily be a party to small claims proceedings 
under Sec. 502.304 and special docket proceedings under Sec. 502.271. 
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.]

[64 FR 7807, Feb. 17, 1999]



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 5(a) of the Shipping Act of 1984, the parties to the agreement 
shall be made respondents. (Rule 44).

[49 FR 44369, Nov. 6, 1984, as amended at 65 FR 81759, Dec. 27, 2000]



                          Subpart D_Rulemaking



Sec. 502.51  Initiation of procedure to issue, amend, or repeal a rule.

    (a) By petition. 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 $241 filing fee. Replies to such petition shall 
conform to the requirements of Sec. 502.74.
    (b) By the Commission. The Commission on its own initiative may 
initiate the issuance, amendment, or repeal of a rule through notice of 
proposed rulemaking or advanced notice of proposed rulemaking. [Rule 
51.]

[64 FR 7808, Feb. 17, 1999, as amended at 67 FR 39859, June 11, 2002; 70 
FR 10329, Mar. 3, 2005]



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

[[Page 31]]

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. [Rule 56.]

[58 FR 38649, July 19, 1993, as amended at 64 FR 7808, Feb. 17, 1999]



           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.
    (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.
    (d) All orders instituting a proceeding or noticing the filing of a 
complaint will contain language requiring that at an early stage of the 
proceeding and when practicable the parties shall consider the use of 
alternative dispute resolution in such manner as the presiding officer 
shall direct 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

[[Page 32]]

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. [Rule 61.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 
FR 7808, Feb. 17, 1999; 64 FR 23551, May 3, 1999; 66 FR 43512, Aug. 20, 
2001]



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) Complainant(s) must state whether informal dispute resolution 
procedures were used prior to filing the complaint and whether 
complainant(s) consulted with the Commission Dispute Resolution 
Specialist about utilizing alternative dispute resolution (ADR) under 
the Commission's ADR program.
    (f) A form of complaint is set forth in Exhibit No. 1 to this 
subpart.
    (g) The complaint shall be accompanied by remittance of a $221 
filing fee.
    (h) Complainants desiring to use the discovery provisions of subpart 
L must commence discovery at the time the complaint is filed, pursuant 
to Sec. 502.201(b).
    (i) For special types of cases, see Sec. 502.271 in subpart Q 
(Refund or waiver of freight charges); 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; 63 
FR 50535, Sept. 22, 1998; 64 FR 7808, Feb. 17, 1999; 66 FR 43513, Aug. 
20, 2001; 67 FR 39859, June 11, 2002; 70 FR 10329, Mar. 3, 2005]



Sec. 502.63  Statute of limitations for reparations.

    (a) 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.
    (b) 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 
Sec. Sec. 502.251-502.253 and Exhibit No. 1 to subpart O.)
    (c) 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.

[[Page 33]]

    (d) A complaint is deemed filed on the date it is received by the 
Commission. [Rule 63.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7808, Feb. 17, 1999]



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. An answer to the complaint must be 
verified.
    (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. [Rule 64.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27210, May 7, 1993; 64 
FR 7808, Feb. 17, 1999]



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  Exemption procedures--General.

    (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 Shipping Act of 1984 or any 
specified activity of persons subject to the Shipping Act of 1984 from 
any requirement of the Shipping Act of 1984 if it finds that the 
exemption will not result in substantial reduction in competition or be 
detrimental to commerce. The Commission may attach conditions to any 
exemption and may, by order, revoke any exemption.
    (b) Application for exemption. Any person may petition the 
Commission for an exemption or revocation of an exemption of any class 
of agreements or an individual agreement or any specified activity 
pursuant to section 16 of the Shipping Act of 1984. A petition for 
exemption shall state the particular requirement of the Shipping Act of 
1984 for which exemption is sought. The petition shall also include a 
statement of the reasons why an exemption should be granted or revoked, 
shall provide information relevant to any finding required by the 
Shipping Act of 1984 and shall comply with Sec. 502.69. Where a 
petition for exemption of an individual

[[Page 34]]

agreement is made, the application shall include a copy of the 
agreement.
    (c) 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.
    (d) Federal Register notice. Notice of any proposed exemption or 
revocation of exemption, whether upon petition or upon the Commission's 
own motion, shall be published in the Federal Register. The notice shall 
include when applicable:
    (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 or 
specified activity for which exemption is sought, or the exemption which 
is to be revoked;
    (4) A statement that the petition and any accompanying information 
are available for inspection in the Commission's offices in Washington, 
DC; and
    (5) The final date for filing comments regarding the proposal. [Rule 
67.]

[64 FR 7808, Feb. 17, 1999]



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 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 $241 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 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

[[Page 35]]

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; 65 FR 81759, Dec. 27, 2000; 67 FR 39859, June 11, 2002; 70 FR 
10329, Mar. 3, 2005]



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, 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 $241 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; 67 FR 39859, June 
11, 2002; 70 FR 10329, Mar. 3, 2005]



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. [Rule 
71.]

[58 FR 27210, May 7, 1993, as amended at 64 FR 7808, Feb. 17, 1999]

[[Page 36]]



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 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

[[Page 37]]

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 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 section 5(e) 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 not be 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.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7808, Feb. 17, 1999]



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

[[Page 38]]

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 Commission or the presiding officer shall grant leave 
for a later filing only 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] of Part 502--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)


[[Page 39]]


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.
    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 Sec. Sec. 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 Sec. Sec. 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 Appearance); 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; 64 FR 7808, Feb. 17, 1999]

[[Page 40]]

    Exhibit No. 2 to Subpart E [Sec. 502.64] of Part 502--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]

________________________________________________________________________

[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] of Part 502--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) As soon as practicable after the commencement of any proceeding, 
the presiding judge shall direct the parties or their representatives to 
consider the use of alternative dispute resolution, including but not 
limited to mediation,

[[Page 41]]

and may direct the parties or their representatives to consult with the 
Federal Maritime Commission Alternative Dispute Resolution Specialist 
about the feasibility of alternative dispute resolution.
    (e) Any party may request that a mediator or other neutral 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 appoint a mediator or other neutral who is acceptable to all 
parties, coordinating with the Federal Maritime Commission Alternative 
Dispute Resolution Specialist. The mediator or other neutral shall 
convene and conduct one or more mediation or other sessions with the 
parties and shall inform the presiding judge, within the time prescribed 
by the presiding judge, whether the dispute resolution proceeding 
resulted in a resolution or not, and may make 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. 
All such dispute resolution proceedings shall be subject to the 
provisions of subpart U.
    (f) Any party may request that a 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 settlement judge 
who is acceptable to all parties. The settlement judge shall convene and 
preside over conferences and settlement negotiations and shall report to 
the presiding 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. [Rule 91].

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 
FR 7808, Feb. 17, 1999; 66 FR 43513, Aug. 20, 2001]



Sec. 502.92  [Reserved]



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 dispute resolution would be appropriate 
or useful for the disposition of the proceeding

[[Page 42]]

whether or not there has been previous consideration of such use.

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64 
FR 7808, Feb. 17, 1999; 66 FR 43513, Aug. 20, 2001]



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.
    (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 of Part 502 [Reserved]



                             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.

    (a) 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 and be submitted 
at least five (5) days before the scheduled date for filing. Except for 
good cause shown, failure to meet this time requirement may result in 
summary rejection of the request.
    (b) Such motions will be granted only under exceptional 
circumstances duly demonstrated in the request, and 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 Sec. Sec. 502.222 and 
502.227.

[[Page 43]]

    (c) Upon motion made after the expiration of the scheduled date, the 
filing may be permitted where reasonable grounds are found for the 
failure to file.
    (d) Replies to such motions for enlargement of time shall conform to 
the requirements of Sec. 502.74. [Rule 102.]

[64 FR 7808, Feb. 17, 1999]



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. Such motions must be 
received, whether orally or in writing, at least five (5) days before 
the scheduled date for hearing. Except for good cause shown, failure to 
meet this requirement may result in summary rejection of the request. 
Replies to such motions shall conform to the requirements of Sec. 
502.74. [Rule 104.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7809, Feb. 17, 1999]



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 Sec. Sec. 502.102 and 502.104 
as to replies and may rule ex parte on such requests. [Rule 105.]

[64 FR 7809, Feb. 17, 1999]



           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 must be 
clear and legible, dated, show the docket description and title of the 
proceeding, and include the title, if any, and address of the signer. An 
original signed in ink must be provided. Text shall appear on only one 
side of the paper and must be double spaced except that quotations must 
be single spaced and indented. The paper must be strong and durable, not 
more than 8\1/2\ inches wide and 12 inches long, with a left hand margin 
of 1\1/2\ inches. Documents shall be printed in clear type, never 
smaller than 12 point.
    (b) Filings by facsimile for purposes of meeting a deadline will not 
be accepted unless authorized by the presiding officer or the Secretary.
    (c) Facsimile transmissions of signature pages on filings will be 
tentatively accepted for the purpose of meeting filing deadlines pending 
receipt of the original signature page within seven working days. [Rule 
111.]

[64 FR 7809, Feb. 17, 1999]



Sec. 502.112  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

[[Page 44]]

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.'' [Rule 112.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 58 
FR 27210, May 7, 1993; 64 FR 7809, Feb. 17, 1999]



Sec. 502.113  Service by the Commission.

    (a) Complaints filed pursuant to Sec. 502.62, (including any 
accompanying discovery requests initiated pursuant to Sec. 502.201(b)), 
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.
    (b) The complainant may also effect proper service, in which case an 
affidavit setting forth the method, time and place of service must be 
filed with the Secretary within five days following service.
    (c) 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.
    (d) The presiding officer may dismiss a complaint that has not been 
served within thirty (30) days after the complaint was filed. [Rule 
113.]

[64 FR 7809, Feb. 17, 1999]



Sec. 502.114  Service by parties of pleadings and other documents.

    (a) Except as otherwise specifically provided by the rules in this 
part, all pleadings, documents, and papers of every kind (except 
requests for subpoenas, documents served by the Commission under Sec. 
502.113, and documents submitted at a hearing or prehearing conference) 
in proceedings before the Commission under the rules in this part 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; 
by courier; or by facsimile transmission if agreed by both parties prior 
to service.
    (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

[[Page 45]]

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 52), proceedings under section 19 of the 
Merchant Marine Act, 1920, 46 U.S.C. app. 876(1)(b) (part 550), and 
proceedings under section 13(b)(6) of the Shipping Act of 1984 (part 
560). A list of all participants may be obtained from the Secretary of 
the Commission.
    (c) Except with respect to filing of complaints pursuant to 
Sec. Sec. 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; 64 FR 7809, Feb. 17, 1999]



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 date when matter served is 
deposited in the United States mail, delivered to a courier, delivered 
in person, or transmitted by facsimile, as the case may be. In computing 
the time from such dates, the provisions of Sec. 502.101 shall apply. 
[Rule 116.]

[64 FR 7809, Feb. 17, 1999]



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.
    (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, notices of appearance required by Sec. 502.23, and all

[[Page 46]]

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; 64 FR 7809, Feb. 17, 1999]



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 Sec. Sec. 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. The 
confidential copies shall consist of the complete filing and shall 
include a cover page marked ``Confidential-Restricted,'' with the 
confidential materials clearly marked on each page.
    (b) Whenever a confidential filing is submitted, there must also be 
submitted an original and one copy of a public version of the filing. 
Such public version shall exclude confidential materials, and shall 
indicate on the cover page and on each affected page ``confidential 
materials excluded.''
    (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 64 FR 7809, Feb. 17, 1999]



                           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 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.

[[Page 47]]

    (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 or deposition 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.]

[64 FR 7809, Feb. 17, 1999]



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 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

[[Page 48]]

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. 502.113, 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, as amended at 64 
FR 7810, Feb. 17, 1999]



Sec. 502.144  Notice of time and place of hearing; postponement of hearing.

    (a) 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. Notice may be served by mail, 
facsimile transmission, or electronic mail.
    (b) Motions for postponement of any hearing date shall be filed in 
accordance with Sec. 502.104. [Rule 144.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7810, Feb. 17, 1999; 64 
FR 23551, May 3, 1999]



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:
    (a) Upon the service by the Commission of a complaint filed pursuant 
to Sec. 502.62, or Sec. 502.182, or upon referral under subpart T of 
this part; 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. 502.271; or
    (d) Upon the initiation of a proceeding and ordering of hearing 
before an administrative law judge. [Rule 146.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7810, Feb. 17, 1999]

[[Page 49]]



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; 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 and subpart T 
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; 64 FR 7810, Feb. 17, 1999]



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.]



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

[[Page 50]]

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.]



Sec. 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 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,

[[Page 51]]

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. Written 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 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.]

[[Page 52]]



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 indispensable 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 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)

[[Page 53]]

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 $221 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; 67 FR 39859, June 11, 2002; 70 FR 10329, Mar. 
3, 2005]



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 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

[[Page 54]]

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 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 to meet or confer. 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 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

[[Page 55]]

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 by order of the presiding officer. 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;
    (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

[[Page 56]]

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, as amended at 64 
FR 7810, Feb. 17, 1999]



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 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,

[[Page 57]]

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 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

[[Page 58]]

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.
    (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

[[Page 59]]

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 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

[[Page 60]]

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 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

[[Page 61]]

    (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 Sec. Sec. 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 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

[[Page 62]]

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, 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

[[Page 63]]

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) All briefs filed pursuant to this section shall ordinarily be 
limited to eighty (80) pages in length, exclusive of pages containing 
the table of contents, table of authorities, and certificate of service, 
unless the presiding officer allows the parties to exceed this limit for 
good cause shown and upon application filed not later than five (5) days 
before the time fixed for filing of such a brief or reply. [Rule 221.]

[49 FR 44369, Nov. 6, 1984, as amended at 61 FR 51233, Oct. 1, 1996; 64 
FR 7810, Feb. 17, 1999]



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. All initial and recommended 
decisions will include a statement of findings and conclusions, as well 
as the reasons or basis therefor, upon all the material issues presented 
on the record, and the appropriate rule, order, sanction, relief, or 
denial thereof. Where appropriate, the statement of findings and 
conclusions should be numbered. Initial decisions should address only 
those issues necessary to a resolution of the material issues presented 
on the record. 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 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 223.]

[64 FR 7810, Feb. 17, 1999]



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--Commission.

    All final decisions will include a statement of findings and 
conclusions, as well as the reasons or basis therefor,

[[Page 64]]

upon all the material issues 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. This provision shall also apply to decisions issued pursuant 
to subpart T of this part. [Rule 225.]

[64 FR 7810, Feb. 17, 1999]



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 judge; replies thereto; review of decisions or orders of dismissal by 

          Commission; and judicial review.

    (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) A decision or order of dismissal by an administrative law judge 
shall only be considered final for purposes of judicial review if the 
party has first sought review by the Commission pursuant to this 
section.
    (5) Upon the filing of exceptions to, or review of, an initial 
decision, such decision shall become inoperative until the Commission 
determines the matter.
    (6) 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.
    (7) 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)

[[Page 65]]

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.
    (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.
    (e) All briefs and replies filed pursuant to this section shall 
ordinarily be limited to fifty (50) pages in length, exclusive of pages 
containing the table of contents, table of authorities, and certificate 
of service, unless the Commission allows the parties to exceed this 
limit for good cause shown and upon application filed not later than 
five (5) days before the time fixed for filing of such a brief or reply. 
[Rule 227.]

[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27211, May 7, 1993; 61 
FR 66617, Dec. 18, 1996; 64 FR 7810, Feb. 17, 1999]



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,

[[Page 66]]

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 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

[[Page 67]]

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, 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  Interest in reparation proceedings.

    Except as to applications for refund or waiver of freight charges 
under Sec. 502.271 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 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. 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. [Rule 
253.]

[64 FR 7810, Feb. 17, 1999]



Sec. 502.254  Attorney's fees in reparation proceedings.

    (a) Scope. 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. Petitions 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) and Sec. 502.304(g); or
    (ii) With the Commission, if exceptions were filed to, or the 
Commission

[[Page 68]]

reviewed, the presiding officer's reparation award decision pursuant to 
Sec. 502.227 of this part.
    (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; 64 FR 
7811, Feb. 17, 1999]

[[Page 69]]

   Exhibit No. 1 to Subpart O [Sec. 502.252] of Part 502--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.


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 70]]



                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_Refund or Waiver of Freight Charges

    Source: 64 FR 7811, Feb. 17, 1999, unless otherwise noted.



Sec. 502.271  Special docket application for permission to refund or waive freight charges.

    (a)(1) A common carrier or a shipper may file a special docket 
application seeking permission for a common carrier or conference to 
refund or waive collection of a portion of freight charges if there is:
    (i) An error in the tariff;
    (ii) An error in failing to publish a new tariff; or
    (iii) An error in quoting a tariff .
    (2) Such refund or waiver must not result in discrimination among 
shippers, ports, or carriers.
    (b) Such application must be filed within one hundred eighty (180) 
days from the date of sailing of the vessel from the port at which the 
cargo was loaded. 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.
    (c) Prior to submission of the application for a refund for an error 
in a tariff or a failure to publish a new tariff, the carrier or 
conference must publish a new tariff which sets forth the rate on which 
refund or waiver would be based.
    (d) Such application must be in accordance with Exhibit 1 to this 
Subpart and must also comply with the following requirements:
    (1) Applications must be submitted to the Office of the Secretary, 
Federal Maritime Commission, Washington, DC 20573-0001.
    (2) Applications must be submitted in an original and one (1) copy.
    (3) Applications must be sworn to before a notary public or 
otherwise verified in accordance with Sec. 502.112.
    (4) 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 Sec. 502.117 to that 
service in the application. A shipper

[[Page 71]]

must also make a similar service and certification with respect to the 
common carrier.
    (5) Applications must be accompanied by remittance of a $77 filing 
fee.
    (e) Any application which does not furnish the information required 
by this Subpart may be returned to the applicant by the Secretary 
without prejudice to resubmission within the 180-day limitation period.
    (f)(1) The Secretary in his discretion shall either forward an 
application to the Office of Consumer Affairs and Dispute Resolution 
Services, for assignment to a Special Dockets Officer, or assign an 
application to the Office of Administrative Law Judges. Authority to 
issue decisions under this subpart is delegated to the assigned Special 
Dockets Officer or Administrative Law Judge.
    (2) Applicants will be notified as to the assignment of a deciding 
official, and the assignment of a special docket number. Formal 
proceedings as described in other rules of this part need not be 
conducted. The deciding official may, in his or her discretion, require 
the submission of additional information.
    (g) The deciding official shall issue a decision which, pursuant to 
Sec. 501.21 of this chapter, shall become final ten (10) days after 
service of such decision, unless the Commission in its discretion 
chooses to review such decision within that time, or the applicant 
chooses to file exceptions to such decision within that time. [Rule 
271.]

[64 FR 7811, Feb. 17, 1999, as amended at 65 FR 81759, Dec. 27, 2000; 67 
FR 39859, June 11, 2002; 70 FR 7669, Feb. 15, 2005; 70 FR 10329, Mar. 3, 
2005; 70 FR 44867, Aug. 4, 2005]

 Exhibit No. 1 to Subpart Q [Sec. 502.271(d)] of Part 502--Application 
 for Refund or Waiver of Freight Charges Due to Tariff or Quoting Error

    Federal Maritime Commission Special Docket No. ---------- [leave 
blank].
    Amount of Freight Charges to be refunded or waived:
    Application of (Name of carrier or 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, container size, and number of containers 
of individual shipment, as well as all shipments.
    (d)(1) Date(s) of receipt of shipment(s) by the carrier;
    (2) Date(s) of 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 and tariff commodity description applicable at time of 
shipment (furnish legible copies of tariff materials).
    (l) Rate and commodity description sought to be applied (furnish 
legible copies of applicable tariff materials).
    (m)(1) Amount of applicable freight charges, per shipment and in the 
aggregate;
    (2) 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. Fully explain the basis for the application, i.e., the error, 
failure to publish, or misquote, showing why the application should be 
granted. Furnish affidavits, if appropriate, and legible copies of all 
supporting documents. If the error is due to failure to publish a 
tariff, specify the date when the carrier and/or conference intended or 
agreed to publish a new tariff. If the application is based on a 
misquote, the application must include the affidavit of the person who 
made the misquote describing the circumstances surrounding such misquote 
along with any other supporting documentary evidence available.
    4. Furnish any information or evidence as to whether granting the 
application may result in discrimination among shippers, ports or 
carriers. List any 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 intended 
rate would

[[Page 72]]

have become effective and ending on the day before the effective date of 
the conforming tariff; (ii) moved on the same voyage(s) of the vessel(s) 
carrying the shipment(s) described in No. 1, above; or (iii), in the 
case of a misquote, moved between the date of receipt of shipment(s) 
described in No. 1 above, and the date(s) of sailing(s).
    (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 ------ .
(Seal)
________________________________________________________________________
    Notary Public
    My Commission expires.

                 CERTIFICATE OF SERVICE (if applicable)

    I hereby certify that I have this day served the foregoing document 
upon the (insert the conference name if a conference tariff is involved; 
or the name of the carrier if the applicant is a shipper) by delivering 
a copy (insert means by which copy delivered).
    Dated in (insert city, county, state) this ------ day of ------. 
(signature)
    For:

                         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 one (1) copy of this 
application to the Secretary, Federal Maritime Commission, Washington, 
DC, 20573-0001.
    Dated at ------, this ------ day of ------ .
    (Signature) .
    For.



                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 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

[[Page 73]]

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.]



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) With the consent of both parties, claims filed under this 
subpart in the amount of $50,000 or less will be decided by a Settlement 
Officer appointed by the Federal Maritime Commission Alternative Dispute 
Resolution Specialist, without the necessity of formal proceedings under 
the rules of this part. Authority to issue decisions under this subpart 
is delegated to the appointed Settlement Officer.
    (c) Determination of claims under this subpart shall be 
administratively final and conclusive. [Rule 301.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7812, Feb. 17, 1999; 66 
FR 43513, Aug. 20, 2001]



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.

[[Page 74]]

    (b) A claim is deemed filed on the date it is received by the 
Commission. [Rule 302.]

[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7812, Feb. 17, 1999]



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 $67 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 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 decision 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

[[Page 75]]

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; 67 
FR 39859, June 11, 2002; 70 FR 10329, Mar. 3, 2005]



Sec. 502.305  Applicability of other rules of this part.

    Except Sec. Sec. 502.253 and 502.254 or as otherwise 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.]

[64 FR 7812, Feb. 17, 1999]

 Exhibit No. 1 to Subpart S [Sec. 502.304(a)] of Part 502--Small Claim 
        Form for Informal Adjudication and Information Checklist

              Federal Maritime Commission, Washington, DC.

    Informal Docket No.------

________________________________________________________________________

(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
________________________________________________________________________


[[Page 76]]

________________________________________________________________________
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.
    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 Sec. Sec. 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; 64 FR 7812, Feb. 17, 1999]

Exhibit No. 2 to Subpart S [Sec. 502.304(e)] of Part 502--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]

[[Page 77]]



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]



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

[[Page 78]]

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

[64 FR 7812, Feb. 17, 1999]



                Subpart U_Alternative Dispute Resolution

    Source: 66 FR 43513, Aug. 20, 2001, unless otherwise noted.



Sec. 502.401  Policy.

    It is the policy of the Federal Maritime Commission to use 
alternative means of dispute resolution to the fullest extent compatible 
with the law and the agency's mission and resources. The Commission will 
consider using ADR in all areas including workplace issues, formal and 
informal adjudication, issuance of regulations, enforcement and 
compliance, issuing and revoking licenses and permits, contract award 
and administration, litigation brought by or against the Commission, and 
other interactions with the public and the regulated community. The 
Commission will provide learning and development opportunities for its 
employees to develop their ability to use conflict resolution skills, 
instill knowledge of the theory and practice of ADR, and to facilitate 
appropriate use of ADR. To this end, all parties to matters under this 
part are required to consider use of a wide range of alternative means 
to resolve disputes at an early stage. Parties are encouraged to pursue 
use of alternative means through the Commission's Office of Consumer 
Affairs and Dispute Resolution Services in lieu of or prior to 
initiating a Commission proceeding. All employees and persons who 
interact with the Commission are encouraged to identify opportunities 
for collaborative, consensual approaches to dispute resolution or 
rulemaking.

[66 FR 43513, Aug. 20, 2001, as amended at 70 FR 7669, Feb. 15, 2005; 70 
FR 44867, Aug. 4, 2005]



Sec. 502.402  Definitions.

    (a) Alternative means of dispute resolution means any procedure that 
is used to resolve issues in controversy, including, but not limited to, 
conciliation, facilitation, mediation, factfinding, minitrials, 
arbitration, and use of ombuds, or any combination thereof;
    (b) Award means any decision by an arbitrator resolving the issues 
in controversy;
    (c) Dispute resolution communication means any oral or written 
communication prepared for the purposes of a dispute resolution 
proceeding, including any memoranda, notes or work product of the 
neutral, parties or nonparty participant; except that a written 
agreement to enter into a dispute resolution proceeding, or final 
written agreement or arbitral award reached as a result of a dispute 
resolution proceeding, is not a dispute resolution communication;
    (d) Dispute resolution proceeding means any process in which an 
alternative means of dispute resolution is used to resolve an issue in 
controversy in which a neutral is appointed and specified parties 
participate;
    (e) In confidence means, with respect to information, that the 
information is provided--
    (1) With the expressed intent of the source that it not be 
disclosed; or
    (2) Under circumstances that would create the reasonable expectation 
on behalf of the source that the information will not be disclosed;
    (f) Issue in controversy means an issue which is material to a 
decision concerning a program of the Commission, and with which there is 
disagreement--
    (1) Between the Commission and persons who would be substantially 
affected by the decision; or
    (2) Between persons who would be substantially affected by the 
decision;
    (g) Neutral means an individual who, with respect to an issue in 
controversy,

[[Page 79]]

functions specifically to aid the parties in resolving the controversy; 
and
    (h) Person has the same meaning as in 5 U.S.C. 551(2).



Sec. 502.403  General authority.

    (a) The Commission intends to consider using a dispute resolution 
proceeding for the resolution of an issue in controversy, if the parties 
agree to a dispute resolution proceeding.
    (b) The Commission will consider not using a dispute resolution 
proceeding if--
    (1) A definitive or authoritative resolution of the matter is 
required for precedential value, and such a proceeding is not likely to 
be accepted generally as an authoritative precedent;
    (2) The matter involves or may bear upon significant questions of 
Government policy that require additional procedures before a final 
resolution may be made, and such a proceeding would not likely serve to 
develop a recommended policy for the agency;
    (3) Maintaining established policies is of special importance, so 
that variations among individual decisions are not increased and such a 
proceeding would not likely reach consistent results among individual 
decisions;
    (4) The matter significantly affects persons or organizations who 
are not parties to the proceeding;
    (5) A full public record of the proceeding is important, and a 
dispute resolution proceeding cannot provide such a record; and
    (6) The Commission must maintain continuing jurisdiction over the 
matter with authority to alter the disposition of the matter in the 
light of changed circumstances, and a dispute resolution proceeding 
would interfere with the Commission's fulfilling that requirement.
    (c) Alternative means of dispute resolution authorized under this 
subpart are voluntary procedures which supplement rather than limit 
other available agency dispute resolution techniques.



Sec. 502.404  Neutrals.

    (a) A neutral may be a permanent or temporary officer or employee of 
the Federal Government or any other individual who is acceptable to the 
parties to a dispute resolution proceeding. A neutral shall have no 
official, financial, or personal conflict of interest with respect to 
the issues in controversy, unless such interest is fully disclosed in 
writing to all parties and all parties agree that the neutral may serve.
    (b) A neutral who serves as a conciliator, facilitator, or mediator 
serves at the will of the parties.
    (c) With consent of the parties, the Federal Maritime Commission 
Dispute Resolution Specialist will seek to provide a neutral in dispute 
resolution proceedings through Commission staff, arrangements with other 
agencies, or on a contractual basis.
    (d) Fees. Should the parties choose a neutral other than an official 
or employee of the Commission, fees and expenses shall be borne by the 
parties as the parties shall agree.



Sec. 502.405  Confidentiality.

    (a) Except as provided in paragraphs (d) and (e) of this section, a 
neutral in a dispute resolution proceeding shall not voluntarily 
disclose or through discovery or compulsory process be required to 
disclose any dispute resolution communication or any communication 
provided in confidence to the neutral, unless--
    (1) All parties to the dispute resolution proceeding and the neutral 
consent in writing, and, if the dispute resolution communication was 
provided by a nonparty participant, that participant also consents in 
writing;
    (2) The dispute resolution communication has already been made 
public;
    (3) The dispute resolution communication is required by statute to 
be made public, but a neutral should make such communication public only 
if no other person is reasonably available to disclose the 
communication; or
    (4) A court determines that such testimony or disclosure is 
necessary to--
    (i) Prevent a manifest injustice;
    (ii) Help establish a violation of law; or
    (iii) Prevent harm to the public health or safety, of sufficient 
magnitude in the particular case to outweigh the integrity of dispute 
resolution proceedings in general by reducing the confidence of parties 
in future

[[Page 80]]

cases that their communications will remain confidential.
    (b) A party to a dispute resolution proceeding shall not voluntarily 
disclose or through discovery or compulsory process be required to 
disclose any dispute resolution communication, unless--
    (1) The communication was prepared by the party seeking disclosure;
    (2) All parties to the dispute resolution proceeding consent in 
writing;
    (3) The dispute resolution communication has already been made 
public;
    (4) The dispute resolution communication is required by statute to 
be made public;
    (5) A court determines that such testimony or disclosure is 
necessary to--
    (i) Prevent a manifest injustice;
    (ii) Help establish a violation of law; or
    (iii) Prevent harm to the public health and safety, of sufficient 
magnitude in the particular case to outweigh the integrity of dispute 
resolution proceedings in general by reducing the confidence of parties 
in future cases that their communications will remain confidential;
    (6) The dispute resolution communication is relevant to determining 
the existence or meaning of an agreement or award that resulted from the 
dispute resolution proceeding or to the enforcement of such an agreement 
or award; or
    (7) Except for dispute resolution communications generated by the 
neutral, the dispute resolution communication was provided to or was 
available to all parties to the dispute resolution proceeding.
    (c) Any dispute resolution communication that is disclosed in 
violation of paragraph (a) or (b) of this section shall not be 
admissible in any proceeding relating to the issues in controversy with 
respect to which the communication was made.
    (d) (1) The parties may agree between or amongst themselves to 
alternative confidential procedures for disclosures by a neutral, and 
shall inform the neutral before commencement of the dispute resolution 
proceeding of any modifications to the provisions of paragraph (a) of 
this section that will govern the confidentiality of the dispute 
resolution proceeding, in accordance with the guidance on 
confidentiality in federal proceedings published by the Interagency ADR 
Working Group and adopted by the ADR Council (http://www.financenet.gov/
financenet/fed/iadrwg/confid.pdf). If the parties do not so inform the 
neutral, paragraph (a) of this section shall apply.
    (2) To qualify for the exemption under paragraph (j) of this 
section, an alternative confidential procedure under this subsection may 
not provide for less disclosure than the confidential procedures 
otherwise provided under this section.
    (e) If a demand for disclosure, by way of discovery request or other 
legal process, is made upon a neutral regarding a dispute resolution 
communication, the neutral shall make reasonable efforts to notify the 
parties and any affected nonparty participants of the demand. Any party 
or affected nonparty participant who receives such notice and within 15 
calendar days does not offer to defend a refusal of the neutral to 
disclose the requested information shall have waived any objection to 
such disclosure.
    (f) Nothing in this section shall prevent the discovery or 
admissibility of any evidence that is otherwise discoverable, merely 
because the evidence was presented in the course of a dispute resolution 
proceeding.
    (g) Paragraphs (a) and (b) of this section shall have no effect on 
the information and data that are necessary to document an agreement 
reached or order issued pursuant to a dispute resolution proceeding.
    (h) Paragraphs (a) and (b) of this section shall not prevent the 
gathering of information for research or educational purposes, in 
cooperation with other agencies, governmental entities, or dispute 
resolution programs, so long as the parties and the specific issues in 
controversy are not identifiable.
    (i) Paragraphs (a) and (b) of this section shall not prevent use of 
a dispute resolution communication to resolve a dispute between the 
neutral in a dispute resolution proceeding and a party to or participant 
in such proceeding, so long as such dispute resolution communication is 
disclosed only to the extent necessary to resolve such dispute.

[[Page 81]]

    (j) A dispute resolution communication which is between a neutral 
and a party and which may not be disclosed under this section shall also 
be exempt from disclosure under 5 U.S.C. 552(b)(3).



Sec. 502.406  Arbitration.

    (a)(1) Arbitration may be used as an alternative means of dispute 
resolution whenever all parties consent, except that arbitration may not 
be used when the Commission or one of its components is a party. Consent 
may be obtained either before or after an issue in controversy has 
arisen. A party may agree to--
    (i) Submit only certain issues in controversy to arbitration; or
    (ii) Arbitration on the condition that the award must be within a 
range of possible outcomes.
    (2) The arbitration agreement that sets forth the subject matter 
submitted to the arbitrator shall be in writing. Each such arbitration 
agreement shall specify a maximum award that may be issued by the 
arbitrator and may specify other conditions limiting the range of 
possible outcomes.
    (b) With the concurrence of the Federal Maritime Commission Dispute 
Resolution Specialist, binding arbitration may be used to resolve any 
and all disputes that could be the subject of a Commission 
administrative proceeding before an Administrative Law Judge. The 
Federal Maritime Commission Dispute Resolution Specialist may withhold 
such concurrence after considering the factors specified in Sec. 
502.403, should the Commission's General Counsel object to use of 
binding arbitration.
    (c)(1) The Federal Maritime Commission Dispute Resolution Specialist 
will appoint an arbitrator of the parties' choosing for an arbitration 
proceeding.
    (2) A Commission officer or employee selected as an arbitrator by 
the parties and appointed by the Federal Maritime Commission Dispute 
Resolution Specialist shall have authority to settle an issue in 
controversy through binding arbitration pursuant to the arbitration 
agreement; provided, however, that decisions by arbitrators shall not 
have precedential value with respect to decisions by Administrative Law 
Judges or the Commission. Administrative Law Judges may be appointed as 
arbitrators with the concurrence of the Chief Administrative Law Judge.
    (d) The arbitrator shall be a neutral who meets the criteria of 5 
U.S.C. 573.



Sec. 502.407  Authority of the arbitrator.

    An arbitrator to whom a dispute is referred may--
    (a) Regulate the course of and conduct arbitral hearings;
    (b) Administer oaths and affirmations;
    (c) Compel the attendance of witnesses and production of evidence at 
the hearing under the provisions of 9 U.S.C. 7 only to the extent the 
Commission is otherwise authorized by law to do so; and
    (d) Make awards.



Sec. 502.408  Conduct of arbitration proceedings.

    (a) The arbitrator shall set a time and place for the hearing on the 
dispute and shall notify the parties not less than five days before the 
hearing.
    (b) Any party wishing a record of the hearing shall--
    (1) Be responsible for the preparation of such record;
    (2) Notify the other parties and the arbitrator of the preparation 
of such record;
    (3) Furnish copies to all identified parties and the arbitrator; and
    (4) Pay all costs for such record, unless the parties agree 
otherwise or the arbitrator determines that the costs should be 
apportioned.
    (c)(1) The parties to the arbitration are entitled to be heard, to 
present evidence material to the controversy, and to cross-examine 
witnesses appearing at the hearing.
    (2) The arbitrator may, with the consent of the parties, conduct all 
or part of the hearing by telephone, television, computer, or other 
electronic means, if each party has an opportunity to participate.
    (3) The hearing shall be conducted expeditiously and in an informal 
manner.
    (4) The arbitrator may receive any oral or documentary evidence, 
except that irrelevant, immaterial, unduly repetitious, or privileged 
evidence may be excluded by the arbitrator.

[[Page 82]]

    (5) The arbitrator shall interpret and apply relevant statutory and 
regulatory requirements, legal precedents, and policy directives.
    (d) The provisions of Sec. 502.11 regarding ex parte communications 
apply to all arbitration proceedings. No interested person shall make or 
knowingly cause to be made to the arbitrator an unauthorized ex parte 
communication relevant to the merits of the proceeding, unless the 
parties agree otherwise. If a communication is made in violation of this 
subsection, the arbitrator shall ensure that a memorandum of the 
communication is prepared and made a part of the record, and that an 
opportunity for rebuttal is allowed. Upon receipt of a communication 
made in violation of this subsection, the arbitrator may, to the extent 
consistent with the interests of justice and the policies underlying 
this subchapter, require the offending party to show cause why the claim 
of such party should not be resolved against such party as a result of 
the improper conduct.
    (e) The arbitrator shall make an award within 30 days after the 
close of the hearing, or the date of the filing of any briefs authorized 
by the arbitrator, whichever date is later, unless the parties agree to 
some other time limit.



Sec. 502.409  Arbitration awards.

    (a)(1) The award in an arbitration proceeding under this subchapter 
shall include a brief, informal discussion of the factual and legal 
basis for the award, but formal findings of fact or conclusions of law 
shall not be required.
    (2) Exceptions to or an appeal of an arbitrator's decision may not 
be filed with the Commission.
    (b) An award entered in an arbitration proceeding may not serve as 
an estoppel in any other proceeding for any issue that was resolved in 
the proceeding. Such an award also may not be used as precedent or 
otherwise be considered in any factually unrelated proceeding.



Sec. 502.410  Representation of parties.

    (a) The provisions of Sec. 502.21 apply to the representation of 
parties in dispute resolution proceedings, as do the provisions of Sec. 
502.27 regarding the representation of parties by nonattorneys.
    (b) A neutral in a dispute resolution proceeding may require 
participants to demonstrate authority to enter into a binding agreement 
reached by means of a dispute resolution proceeding.



Sec. 502.411  Mediation and other alternative means of dispute resolution.

    (a) Parties are encouraged to utilize mediation or other forms of 
alternative dispute resolution in all formal proceedings. The Commission 
also encourages those with disputes to pursue mediation in lieu of, or 
prior to, the initiation of a Commission proceeding.
    (b) Any party may request, at any time, that a mediator or other 
neutral be appointed to assist the parties in reaching a settlement. If 
such a request is made in a proceeding assigned to an Administrative Law 
Judge, the provisions of Sec. 502.91 apply. For all other matters, 
alternative dispute resolution services may be requested directly from 
the Federal Maritime Commission Alternative Dispute Resolution 
Specialist, who may serve as the neutral if the parties agree or who 
will arrange for the appointment of a neutral acceptable to all parties.
    (c) The neutral shall convene and conduct mediation or other 
appropriate dispute resolution proceedings with the parties.
    (d) Ex parte Communications. Except with respect to arbitration, the 
provisions of Sec. 502.11 do not apply to dispute resolution 
proceedings, and mediators are expressly authorized to conduct private 
sessions with parties.



     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

[[Page 83]]

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.
    (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.
    (vi) For purposes of paragraph (e)(3) of this section, a small 
entity as defined in 5 U.S.C. 601.
    (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

[[Page 84]]

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 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.
    (3) In an adversary adjudication arising from a Commission action to 
enforce a party's compliance with a statutory or regulatory requirement, 
if the demand by the Commission is substantially in excess of the 
decision of the presiding officer and is unreasonable under the facts 
and circumstances of the case, the presiding officer shall award to the 
party fees and other expenses related to defending against the excessive 
demand, unless the party has committed a willful violation of law or 
otherwise acted in bad faith, or special circumstances make an award 
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 $125 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

[[Page 85]]

and takes a position that is not substantially justified, the award or 
an appropriate portion of the award shall be made against that agency. 
[Rule 501.]

[52 FR 28264, July 29, 1987, as amended at 64 FR 7812, Feb. 17, 1999]



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
    (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

[[Page 86]]

the exhibit shall be disposed of in accordance with the Commission's 
established procedures under the Freedom of Information Act under 
Sec. Sec. 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.
    (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. 
[Rule 502.]

[52 FR 28264, July 29, 1987, as amended at 64 FR 7812, Feb. 17, 1999]



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

[[Page 87]]

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 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

[[Page 88]]

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. [Rule 503.]

[52 FR 28264, July 29, 1987, as amended at 64 FR 7812, Feb. 17, 1999]



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 19 of the Merchant Marine Act, 1920, section 13 of the 
Shipping Act of 1984, and sections 2(c) and 3(c) of Pub. L. 89-777 by 
establishing rules and regulations governing the compromise, assessment, 
settlement and collection of civil penalties arising under certain 
designated provisions of the Merchant Marine Act , 1920, 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. [Rule 601.]

[64 FR 7812, Feb. 17, 1999]



Sec. 502.602  Definitions.

    For the purposes of this subpart:
    (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 19(6)(d), 19(7)(d) 
and 19(11) of the Merchant Marine Act, 1920; any provision of the 
Shipping Act of 1984; sections 2 and 3 of Pub. L. 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 Merchant Marine Act, 1920, 
the Shipping Act of 1984, or Pub. L. 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. [Rule 602.]

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 64 FR 7812, Feb. 17, 1999]



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

[[Page 89]]

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). [Rule 603.]

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 64 FR 7812, Feb. 17, 1999]



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 where circumstances 
render it unnecessary, send a Notice and Demand Letter (``NDL'') to the 
respondent, by registered or certified mail, or by other means 
reasonably calculated to give notice. 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

[[Page 90]]

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. [Rule 604.]

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 61 FR 51233, Oct. 1, 1996; 64 FR 7812, 7813, Feb. 17, 1999]



Sec. 502.605  Payment of penalty: Method; default.

    (a) Method. Payment of penalties by the respondent is to be made by 
bank cashier's check or other instrument acceptable to the Commission.
    (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. [Rule 605.]

[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as 
amended at 64 FR 7813, Feb. 17, 1999]

Appendix A to Subpart W of Part 502--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 
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; 65 FR 81759, Dec. 27, 2000]

[[Page 91]]



                    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_Records, Information and Materials Generally Available to the 
     Public Without Resort to Freedom of Information Act Procedures

503.21 Mandatory public records.
503.22 Records available at the Office of the Secretary.
503.23 Records available upon written request.
503.24 Information available via the internet.

   Subpart D_Requests for records under the Freedom of Information Act

503.31 Records available upon written request under the Freedom of 
          Information Act.
503.32 Procedures for responding to requests made under the Freedom of 
          Information Act.
503.33 Exceptions to availability of records.
503.34 Annual report of public information request activity.

                             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 and downgrading 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.

[[Page 92]]

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.

    The Commission shall separately state and concurrently publish the 
following materials in the Federal Register for the guidance of the 
public:
    (a) 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.
    (b) Statements of the general course and method by which its 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available.
    (c) 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.
    (d) 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.
    (e) Every amendment, revision, or repeal of the foregoing.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23547, May 3, 1999]



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_Records, Information and Materials Generally Available to the 
     Public Without Resort to Freedom of Information Act Procedures

    Source: 63 FR 53308, Oct. 5, 1998, unless otherwise noted.



Sec. 503.21  Mandatory public records.

    (a) The Commission, as required by the Freedom of Information Act, 5 
U.S.C. 552, shall make the following materials available for public 
inspection and copying:
    (1) Final opinions (including concurring and dissenting opinions) 
and all

[[Page 93]]

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.
    (4) Copies of all records, regardless of form or format, which have 
been released to any person pursuant to a Freedom of Information Act 
request, and which the Secretary determines have become or are likely to 
become the subject of subsequent requests for substantially the same 
records, and a general index of such records.
    (b) To prevent unwarranted invasion of personal privacy, the 
Secretary may delete identifying details when it makes available or 
publishes an opinion, statement of policy, interpretation, staff manual, 
instruction, or copies of records referred to in paragraph (a)(4) of 
this section. In each case, the justification for the deletion shall be 
explained fully in writing, and the extent of such deletion shall be 
indicated on that portion of the record which is made available or 
published, unless including that indication would harm an interest 
protected by an exemption in Sec. 503.33 under which the deletion is 
made. If technically feasible, the extent of the deletion shall be 
indicated at the place in the record where the deletion was made.
    (c) The Commission maintains and makes 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 paragraph (a) of this section to 
be made available or published.
    (1) The index shall be available at the Office of the Secretary, 
Federal Maritime Commission, 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.
    (2) 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:
    (i) It has been indexed and either made available or published as 
provided by this subpart; or
    (ii) That private party shall have actual and timely notice of the 
terms thereof.
    (d) Duplication of records may be subject to fees as prescribed in 
subpart E of this part.



Sec. 503.22  Records available at the Office of the Secretary

    (a) The following records will be made available for inspection and 
copying at the Office of the Secretary, Federal Maritime Commission, 800 
North Capitol St., NW, Washington, DC 20573, without the requirement of 
a written request. Access to requested records may be delayed if they 
have been sent to archives.
    (1) Proposed and final rules and regulations of the Commission 
including general substantive rules, statements of policy and 
interpretations, and rules of practice and procedure.
    (2) Reports of decisions (including concurring and dissenting 
opinions), orders and notices in all formal proceedings.
    (3) Official docket files in all formal proceedings including, but 
not limited to, orders, notices, pertinent correspondence, transcripts, 
exhibits, and briefs, except for materials which are the subject of a 
protective order. Copies of transcripts may only be available from the 
reporting company contracted by the Commission. Contact the Office of 
the Secretary for the name and address of this company.
    (4) News releases.
    (5) 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.
    (6) Annual reports of the Commission.
    (b) Certain fees may be assessed for duplication of records made 
available

[[Page 94]]

by this section as prescribed in subpart E of this part.

[63 FR 53308, Oct. 5, 1998, as amended at 64 FR 23547, May 3, 1999]



Sec. 503.23  Records available upon written request.

    (a) 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, Federal Maritime Commission, Washington, DC 20573:
    (1) Agreements filed and in effect pursuant to sections 5 and 6 of 
the Shipping Act of 1984.
    (2) Agreements filed under section 5 of the Shipping Act of 1984 
which have been noticed in the Federal Register.
    (3) Tariff data filed in the Commission's ATFI system prior to May 
1, 1999.
    (4) List of licensed ocean freight forwarders.
    (b) Certain fees may be assessed for duplication of records made 
available by this section as prescribed in subpart E of this part.

[63 FR 53308, Oct. 5, 1998, as amended at 64 FR 23547, May 3, 1999]



Sec. 503.24  Information available via the internet.

    (a) The Commission maintains an internet web site. The Commission 
home page may be found at http://www.fmc.gov.
    (b) The following general information, records, and resources are 
accessible through the home page:
    (1) General descriptions of the functions, bureaus, and offices of 
the Commission, phone numbers and e-mail addresses for Commission 
officials, as well as locations of Area Representatives;
    (2) Information about filing complaints;
    (3) Commonly used forms;
    (4) A public information handbook describing the types of 
information available from the Commission and how to access such 
information;
    (5) A Freedom of Information Act Electronic Reading Room which 
contains:
    (i) Copies of final decisions in adjudicatory proceedings issued 
since November 1, 1996;
    (ii) Recently issued final rules and pending proposed rules;
    (iii) Access to statements of policy and interpretations as 
published in part 545 of this chapter; and
    (iv) Records created by the Commission since November 1, 1996, and 
made available under Sec. 503.21, paragraph (a)(4).
    (6) Commission regulations as codified in Title 46 of the Code of 
Federal Regulations;
    (7) News releases issued by the Commission;
    (8) Statements and remarks from the Chairman and Commissioners;
    (9) A connection to the Government Information Locator Service 
maintained by the Government Printing Office, which identifies 
Commission databases; and
    (10) Privacy Act information;
    (11) Lists of the location of all common carrier and conference 
tariffs and publicly available terminal schedules of marine terminal 
operators; and
    (12) A list of licensed ocean transportation intermediaries which 
have furnished the Commission with evidence of financial responsibility.
    (c) Comments or questions regarding the home page should be 
addressed via e-mail to webmaster@fmc.gov.

[63 FR 53308, Oct. 5, 1998, as amended at 64 FR 23547, May 3, 1999]



     Subpart D_Requests for Records Under the Freedom of Information

    Source: 63 FR 53310, Oct. 5, 1998, unless otherwise noted.



Sec. 503.31  Records available upon written request under the Freedom of Information Act.

    (a) A member of the public may request permission to inspect, copy 
or be provided with any Commission records not described in subpart C of 
this part. Such a request must:
    (1) Reasonably describe the record or records sought;
    (2) Be submitted in writing to the Secretary, Federal Maritime 
Commission, Washington, DC 20573; and

[[Page 95]]

    (3) Be clearly marked on the exterior with the letters ``FOIA''.
    (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 this subpart.
    (c) In making any record available to a person under this subpart, 
the Secretary shall provide the record in any form or format requested 
by the person if the record is readily reproducible by the Secretary in 
that form or format.
    (d) Certain fees may be assessed for processing of requests under 
this subpart as prescribed in subpart E of this part.



Sec. 503.32  Procedures for responding to requests made under the Freedom of Information Act.

    (a) Determination to grant or deny request. Upon request by any 
member of the public for documents, made in accordance with the 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.
    (1) Such determination shall be made by the Secretary within twenty 
(20) days (excluding Saturdays, Sundays and legal public holidays) after 
receipt of such request, except as provided in paragraph (c) of this 
section.
    (2) Upon granting a request the Secretary shall promptly make 
records available to the requestor. Upon denial of such a request the 
Secretary shall promptly notify the requestor of the determination, 
explain the reason for denial, give an estimate of the volume of matter 
denied, set forth the names and titles or positions of each person 
responsible for the denial of the request, and notify the party of its 
right to appeal that determination to the Chairman.
    (3)(i) 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 must:
    (A) Be addressed to: Chairman, Federal Maritime Commission, 
Washington, D.C. 20573-0001; and
    (B) Be filed not later than ten (10) working days following receipt 
of notification of denial or receipt of a part of the records requested.
    (ii) The Chairman 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 
(b) of this section.
    (iii) 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 5 U.S.C. 552(a)(4) 
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.
    (b) Extension of time limits. (1) In unusual circumstances, as 
defined in paragraph (b)(2) of this section, the time limits prescribed 
with respect to initial actions in response to a FOIA request 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, except as provided in 
paragraph (b)(3) of this section.
    (2) As used in this paragraph, unusual circumstances means, but only 
to the extent reasonably necessary to the proper processing of the 
particular request:
    (i) 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;
    (ii) 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

[[Page 96]]

    (iii) 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.
    (3) If the time limit is extended as prescribed under this section, 
and the request cannot be processed within the extended time limit, the 
Secretary shall notify the requestor, and either provide the requestor 
with an opportunity to limit the scope of the request so that it may be 
processed within the time limit, or provide the requestor an opportunity 
to arrange with the Secretary an alternative time frame for processing 
the request or a modified request.
    (c) Aggregation of requests. Certain requests by the same requestor, 
or by a group of requestors acting in concert, may be aggregated:
    (1) Upon the Secretary's reasonable belief that such requests 
actually constitute a single request, which if not aggregated would 
satisfy the unusual circumstances specified in paragraph (b)(2) of this 
section; and
    (2) If the requests involve clearly related matters.
    (d) Multitrack processing of requests. The Secretary may provide for 
multitrack processing of requests based on the amount of time or work 
involved in processing requests.
    (e) Expedited processing of requests. (1) The Secretary will provide 
for expedited processing of requests for records when:
    (i) The person requesting the records can demonstrate a compelling 
need; or
    (ii) In other cases, in the Secretary's discretion.
    (2) The term compelling need means:
    (i) A failure to obtain requested records on an expedited basis 
under this paragraph could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual; or
    (ii) With respect to a request made by a person primarily engaged in 
disseminating information, urgency to inform the public concerning 
actual or alleged Federal Government activity.
    (3) A demonstration of compelling need by a person making a request 
for expedited processing must be made in the form of a statement 
describing the circumstances and certified by such person to be true and 
correct to the best of such person's knowledge and belief.
    (4) The Secretary shall determine whether to provide expedited 
processing, and provide notice of the determination to the person making 
the request, within ten (10) working days after the date of the request.
    (5) Appeal of the determination not to provide expedited processing 
should be sought in accordance with the provisions of paragraph 
(a)(3)(i) of Sec. 503.32, and will be considered expeditiously.
    (6) Any request granted expedited processing shall be processed as 
soon as practicable.



Sec. 503.33  Exceptions to availability of records.

    (a) Except as provided in paragraph (b) of this section, the 
following records may be withheld from disclosure:
    (1) Records specifically authorized under criteria established by an 
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 an Executive order.
    (2) Records related solely to the internal personnel rules and 
practices of the Commission.
    (3) Records specifically exempted from disclosure by statute, 
provided that such statute:
    (i) Requires that the matter 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.

[[Page 97]]

    (4) Trade secrets and commercial financial information obtained from 
a person and privileged or confidential.
    (5) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the Commission.
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
    (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) Any reasonably segregable portion of a record shall be provided 
to any person requesting such record after deletion of the portions 
which are exempt under this part. The amount of information deleted 
shall be indicated on the released portion of the record, unless 
including that indication would harm an interest protected by the 
exemption in this section under which the deletion is made. If 
technically feasible, the amount of the information deleted shall be 
indicated at the place in the record where such deletion is made.
    (d) 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 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.



Sec. 503.34  Annual report of public information request activity.

    (a) On or before February 1 of each year, the Commission shall 
submit to the Attorney General of the United States, as required by the 
Attorney General, a report which shall cover the preceeding fiscal year 
and which shall include:
    (1) The number of determinations made not to comply with requests 
for records made to the Commission under this Subpart and the reasons 
for each such determination;
    (2)(i) The number of appeals made by persons under Sec. 503.32, the 
result of such appeals, and the reason for the action upon each appeal 
that results in a denial of information; and
    (ii) A complete list of all statutes relied upon to authorize 
withholding of information under Sec. 503.33(a)(3) , a description of 
whether a court has upheld the Commission's decision to withhold 
information under each such statute, and a concise description of the 
scope of any information withheld;
    (3) The number of requests for records pending before the Commission 
as of September 30 of the preceding

[[Page 98]]

year, and the median number of days that such requests had been pending 
as of that date;
    (4) The number of requests for records received by the Commission 
and the number of requests which the Commission processed;
    (5) The median number of days taken to process different types of 
requests;
    (6) The total amount of fees collected for processing requests; and
    (7) The number of full-time staff devoted to processing requests for 
records under this section, and total amount expended for processing 
such requests.
    (b) Each such report shall be made available to the public at the 
Office of the Secretary, Federal Maritime Commission, Washington, D.C. 
20573 and on the Commission's web site (www.fmc.gov).



                             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 Sec. Sec. 503.11 and 
503.21:
    (1) Records/documents search.
    (2) Duplication of records/documents.
    (3) Review of records/documents.
    (4) Certification 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]



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 commercial use request to determine whether any portion of 
any document located is permitted to be withheld. It

[[Page 99]]

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 
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

[[Page 100]]

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;
    (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

[[Page 101]]

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 $19 per hour and by professional/executive personnel at a rate 
of $48 per hour.
    (ii) Minimum charge for record search is $19.
    (2) Charges for review of records to determine whether they are 
exempt from disclosure under Sec. 503.33 shall be assessed to recover 
full costs at the rate of $79 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\x14 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 $19 per hour.
    (iii) Minimum charge for copying is $4.75.
    (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 $94 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: $9 per proceeding.
    (e) Applications for admission to practice before the Commission for 
persons not attorneys at law must be accompanied by a fee of $104 
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; 67 FR 39859, June 
11, 2002; 70 FR 10329, Mar. 3, 2005]



                 Subpart F_Information Security Program



Sec. 503.51  Definitions.

    (a) Access means the ability or opportunity to gain knowledge of 
classified information.

[[Page 102]]

    (b) Classification means the act or process by which information is 
determined to be classified information.
    (c) Classification guide means a documentary form of instruction or 
source that prescribes the classification of specific information issued 
by an original classification authority that identifies the elements of 
information regarding a specific subject that must be classified and 
establishes the level and duration of classification for each such 
element.
    (d) Classified national security information (hereafter ``classified 
information'') means information that has been determined pursuant to 
Executive Order 12958 or any predecessor order in force to require 
protection against unauthorized disclosure and is marked to indicate its 
classified status when in documentary form.
    (e) Commission means the Federal Maritime Commission.
    (f) Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    (g) Derivative classification means the incorporating, paraphrasing, 
restating or generating in new form information that is already 
classified, and marking the newly developed material consistent with the 
classification markings that apply to the source information. Derivative 
classification includes the classification of information based on 
classification guidance. The duplication or reproduction of existing 
classified information is not derivative classification.
    (h) Downgrading means a determination by a declassification 
authority that information classified and safeguarded at a specified 
level shall be classified and safeguarded at a lower level.
    (i) Foreign government information means:
    (1) Information provided to the United States Government by a 
foreign government or governments, an international organization of 
governments, or any element thereof, with the expectation that the 
information, the source of the information, or both, are to be held in 
confidence;
    (2) Information produced by the United States pursuant to or as a 
result of a joint arrangement with a foreign government or governments, 
or an international organization of governments, or any element thereof, 
requiring that the information, the arrangement, or both, are to be held 
in confidence; or
    (3) information received and treated as ``Foreign Government 
Information'' under the terms of Executive Order 12958 or any 
predecessor order.
    (j) Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that meets the requirements under section 3.6 of 
Executive Order 12958.
    (k) Multiple sources means two or more source documents, 
classification guides, or a combination of both.
    (l) National security means the national defense or foreign 
relations of the United States.
    (m) Need to know means a determination made by an authorized holder 
of classified information that a prospective recipient requires access 
to specific classified information in order to perform or assist in a 
lawful and authorized governmental function.
    (n) Original classification means an initial determination that 
information requires, in the interest of national security, protection 
against unauthorized disclosure.
    (o) Original classification authority means an individual authorized 
in writing, either by the President, or by agency heads or other 
officials designated by the President, to classify information in the 
first instance.
    (p) Self-inspection means the internal review and evaluation of 
individual Commission activities and the Commission as a whole with 
respect to the implementation of the program established under Executive 
Order 12958 and its implementing directives.
    (q) Senior agency official (``security officer'') means the official 
designated by the Chairman under section 5.6 of Executive Order 12958 to 
direct and administer the Commission's program under which classified 
information is safeguarded.

[[Page 103]]

    (r) Source document means an existing document that contains 
classified information that is incorporated, paraphrased, restated, or 
generated in new form into a new document.
    (s) Unauthorized disclosure means a communication or physical 
transfer of classified information to an unauthorized recipient.

[64 FR 23547, May 3, 1999]



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, administering and reporting on the 
Commission's information security program, which includes oversight 
(self-inspection) and security information programs to ensure effective 
implementation of Executive Orders 12958 and 12968, and 32 CFR part 
2001.

[64 FR 23547, May 3, 1999]



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 12958 and directives of the 
Information Security Oversight Office. 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 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 12958; and
    (e) Consider and decide other questions concerning classification 
and declassification that may be brought before it.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23548, May 3, 1999]



Sec. 503.54  Original classification.

    (a) No Commission Member or employee has the authority to originally 
classify information.
    (b) If a Commission Member or employee develops information that 
appears to require classification, or receives any foreign government 
information as defined in section 1.1(d) of Executive Order 12958, 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.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23548, May 3, 1999]



Sec. 503.55  Derivative classification.

    (a) In accordance with Part 2 of Executive Order 12958 and 
directives of the Information Security Oversight Office, the 
incorporation, paraphrasing, restating or generation in new form of 
information that is already classified, and the marking of newly 
developed material consistent with the classification markings that 
apply to the source information, is derivative classification.
    (1) Derivative classification includes the classification of 
information based on classification guidance.
    (2) The duplication or reproduction of existing classified 
information is not derivative classification.
    (b) Members or employees applying derivative classification markings 
shall:
    (1) Observe and respect original classification decisions; and

[[Page 104]]

    (2) Carry forward to any newly created documents the pertinent 
classification markings.
    (3) For information derivatively classified based on multiple 
sources, the Member or employee shall carry forward:
    (i) The date or event for declassification that corresponds to the 
longest period of classification among the sources; and
    (ii) A listing of these sources on or attached to the official file 
or record copy.
    (c) Documents classified derivatively shall bear all markings 
prescribed by 32 CFR 2001.20 through 2001.23 and shall otherwise conform 
to the requirements of 32 CFR 2001.20 through 2001.23.

[64 FR 23548, May 3, 1999]



Sec. 503.56  General declassification and downgrading policy.

    (a) The Commission exercises declassification and downgrading 
authority in accordance with section 3.1 of Executive Order 12958, 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.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23548, May 3, 1999]



Sec. 503.57  Mandatory review for declassification.

    (a) Information originally classified by the Commission but which 
has not been automatically declassified shall be subject to a review for 
declassification by the Commission, if:
    (1) A declassification request is made; 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 pursuant to 31 U.S.C. 
9701.
    (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 information was originally classified by the Commission, 
the Commission Security Officer shall forward the request to the 
Chairman of the Commission for a determination of declassification. If 
the information was originated by another agency, the Commission 
Security Officer shall refer the review and the pertinent records to the 
originating agency. The final determination will be issued within 180 
days of the receipt of the request.
    (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,

[[Page 105]]

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 12958, 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 12958.
    (j) When a request has been submitted both under mandatory review 
and the Freedom of Information Act (FOIA), the requester must elect one 
process or the other. If the requester fails to so elect, the request 
will be treated as a FOIA request unless the requested materials are 
subject only to mandatory review.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23548, May 3, 1999]



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 review, 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) In accordance with section 5.4 of Executive Order 12598 and 32 
CFR 2001.54, within 60 days of such issuance, the requester may appeal a 
final determination of the Commission under paragraph (b) of this 
section to the Interagency Security Classification Appeals Panel. The 
appeal should be addressed to, Executive Secretary, Interagency Security 
Classification Appeals Panel, Attn: Classification Challenge Appeals, c/
o Information Security Oversight Office, National Archives and Records 
Administration, 7th and Pennsylvania Avenue, N.W., Room 5W, Washington 
DC 20408.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23548, May 3, 1999]



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 recipient 
only when the authorized holder of the classified information has 
determined that:
    (1) The prospective recipient has a valid security clearance at 
least commensurate with the level of classification of the information; 
and
    (2) The prospective recipient requires access to the information in 
order to perform or assist in a lawful and authorized governmental 
function.
    (e) The requirement in paragraph (d)(2) of this section, that access 
to classified information may be granted only to individuals who have a 
need-to-

[[Page 106]]

know the information, may be waived 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 12958; and
    (3) Not to publish or otherwise reveal to unauthorized persons any 
classified information.
    (h) Except as authorized by the originating agency, or otherwise 
provided for by directives issued by the President, the Commission shall 
not disclose information originally classified by another agency.
    (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.

[[Page 107]]

    (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 12958 or 
predecessor orders in force;
    (2) Knowingly and willfully classify or continue the classification 
of information in violation of Executive Order 12958 or any implementing 
directive; or
    (3) Knowingly and willfully violate any other provision of Executive 
Order 12958 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, as amended at 64 
FR 23548, May 3, 1999]



   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

[[Page 108]]

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 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.;

[[Page 109]]

    (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]



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 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 accompanying 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]



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

[[Page 110]]

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]



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

[[Page 111]]

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.
    (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

[[Page 112]]

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\x14 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 $94 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; 67 FR 39860, June 11, 2002; 70 FR 10330, Mar. 
3, 2005]



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 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 a majority of the members 
serving on the agency which determine or result in the joint conduct of 
or 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 Sec. Sec. 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 f 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.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999]

[[Page 113]]



Sec. 503.72  General rule--meetings.

    (a) Except as otherwise provided in Sec. Sec. 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 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]

[[Page 114]]



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 schedule d 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 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;

[[Page 115]]

    (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 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 Sec. Sec. 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:

[[Page 116]]

    (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 Sec. Sec. 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 Sec. Sec. 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 Sec. Sec. 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 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

[[Page 117]]

the agency determines, under the provisions of Sec. Sec. 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, 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

[[Page 118]]

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 Sec. Sec. 
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 Sec. Sec. 
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 Sec. Sec. 503.80 and 503.81 regarding a 
determination to withhold from public disclosure any information 
pertaining to a portion or 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

[[Page 119]]

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 Sec. Sec. 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;
    (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.

[[Page 120]]

    (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 Sec. Sec. 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
    (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;

[[Page 121]]

    (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 subparts C and 
D of this part.
    (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.

[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999]



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

    Authority: 5 U.S.C. 552, 553; 46 U.S.C. app. 1712 and 1716; 42 
U.S.C. 4332(2)(b), and 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 15 of 
the Shipping Act of 1984. The penalty for violation of a Commission 
order under section 13 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

[[Page 122]]

not exceed $25,000 for each violation, as adjusted by Sec. 506.4 of 
this chapter. (Each day of a continuing violation constitutes a separate 
offense.)

[49 FR 44415, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999]



Sec. 504.2  Definitions.

    (a) Shipping Act of 1984 means the Shipping Act of 1984 (46 U.S.C. 
app. 1701-1720).
    (b) Common carrier means any common carrier by water as defined in 
section 3 of the Shipping Act of 1984, 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) 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, or in 
connection with a common carrier and a water carrier subject to 
subchapter II of chapter 135 of Title 49, United States Code.
    (i) Commission means the Federal Maritime Commission, including any 
office or bureau to which the Commission may delegate its environmental 
policy analysis responsibilities.

[49 FR 44415, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999]



Sec. 504.3  General information.

    (a) All comments submitted pursuant to this part shall be addressed 
to the Secretary, Federal Maritime Commission, 800 North Capitol Street, 
N.W., Washington, D.C. 20573-0001.
    (b) A list of recent Commission actions, if any, 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.
    (c) Information or status reports on environmental statements and 
other elements of the NEPA process can be obtained from the Secretary, 
Federal Maritime Commission, 800 North Capitol Street, N.W., Washington, 
D.C. 20573-0001.

[64 FR 23549, May 3, 1999]



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 
transportation intermediary licenses.
    (2) Certification of financial responsibility of passenger vessels 
pursuant to 46 CFR part 540.
    (3) Receipt of surety bonds submitted by ocean transportation 
intermediaries.
    (4) Promulgation of procedural rules pursuant to 46 CFR part 502.
    (5) Receipt of service contracts.
    (6) Consideration of special permission applications pursuant to 
part 520 of this chapter.
    (7)-(8) [Reserved]

[[Page 123]]

    (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 Sec. 
502.271 of this chapter.
    (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.
    (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 
Secretary, explain in detail their reasons. The Secretary shall refer 
these submissions for determination by the appropriate Commission 
official, not later than ten (10) days after receipt, whether to prepare 
an environmental assessment. Upon a determination not to prepare an 
environmental assessment, such persons may petition the Commission for 
review of the decision within ten (10) days of receipt of notice of such 
determination.
    (c) If the individual or cumulative effect of a particular action 
otherwise categorically excluded offers a reasonable potential of having 
a significant environmental impact, an environmental assessment shall be 
prepared pursuant to Sec. 504.5.

[49 FR 44415, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 56 
FR 50662, Oct. 8, 1991; 60 FR 27229, May 23, 1995; 61 FR 66617, Dec. 18, 
1996; 64 FR 23549, May 3, 1999]

[[Page 124]]



Sec. 504.5  Environmental assessments.

    (a) Every Commission action not specifically excluded under Sec. 
504.4 shall be subject to an environmental assessment.
    (b) 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 may be published in the Federal Register. 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.

[49 FR 44415, Nov. 6, 1984, as amended at 64 FR 23549, May 3, 1999]



Sec. 504.6  Finding of no significant impact.

    (a) If upon completion of an environmental assessment, it is 
determined 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 
prepared 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.

[64 FR 23549, May 3, 1999]



Sec. 504.7  Environmental impact statements.

    (a) General. (1) An environmental impact statement (EIS) shall be 
prepared 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
    (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) A draft environmental 
impact statement (DEIS) will initially be prepared 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

[[Page 125]]

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, a final environmental impact statement (FEIS) will 
be prepared 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, as amended at 64 
FR 23550, May 3, 1999]



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, a person filing a complaint, protest, petition or 
agreement requesting Commission action shall submit, 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 Secretary of the Federal 
Maritime Commission for informal assistance in preparing this statement. 
The Commission

[[Page 126]]

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 Secretary 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 15 of the Shipping Act of 1984.

[49 FR 44415, Nov. 6, 1984; 49 FR 47395, Dec. 4, 1984, as amended at 64 
FR 23550, May 3, 1999]



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.



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

[[Page 127]]

    (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 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

[[Page 128]]

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.



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 Sec. Sec. 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.

[[Page 129]]



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 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:

----------------------------------------------------------------------------------------------------------------
                                                                                     Current       New adjusted
      United States Code Citation          Civil Monetary Penalty description        maximum     maximum penalty
                                                                                 penalty amount       amount
----------------------------------------------------------------------------------------------------------------
46 U.S.C. app. sec. 817d..............  Failure to establish financial                    5,500            6,000
                                         responsibility for death or injury.                220          \1\ 220
46 U.S.C. app. sec. 817e..............  Failure to establish financial                    5,500            6,000
                                         responsibility for non-performance of              220          \1\ 220
                                         transportation.
46 U.S.C. app. sec. 876...............  Failure to provide required reports,              5,500            6,000
                                         etc.--Merchant Marine Act of 1920.
46 U.S.C. app. sec. 876...............  Adverse shipping conditions/Merchant          1,100,000        1,175,000
                                         Marine Act of 1920.
46 U.S.C. app. sec. 876...............  Operating after tariff or service                55,000           60,000
                                         contract suspension/Merchant Marine
                                         Act of 1920.
46 U.S.C. app. sec. 1710a.............  Adverse impact on U.S. carriers by            1,100,000        1,175,000
                                         foreign shipping practices.

[[Page 130]]

 
46 U.S.C. app. sec. 1712..............  Operating in foreign commerce after              55,000           60,000
                                         tariff suspension.
46 U.S.C. app. sec. 1712..............  Knowing and willful violation/Shipping           27,500           30,000
                                         Act of 1984 or Commission regulation
                                         or order.
46 U.S.C. app. sec. 1712..............  Violation of Shipping Act of 1984,                5,500            6,000
                                         Commission regulation or order, not
                                         knowing or willful.
31 U.S.C. sec. 3802(a)(1).............  Program Fraud Civil Remedies Act/giving           5,500            6,000
                                         false statement.
31 U.S.C. sec. 3802(a)(2).............  Program Fraud Civil Remedies Act/giving           5,500            6,000
                                         false statement.
----------------------------------------------------------------------------------------------------------------
\1\ Application of the statutory rounding resulted in no increase to these penalties.


[61 FR 52705, Oct. 8, 1996, as amended at 64 FR 23550, May 3, 1999; 65 
FR 49741, Aug. 15, 2000]



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.



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

[[Page 131]]

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 
alcoholism.
    (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 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 achieve 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

[[Page 132]]

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.



Sec. Sec. 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.



Sec. Sec. 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 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

[[Page 133]]

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.



Sec. Sec. 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.



Sec. Sec. 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.



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

[[Page 134]]

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 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.

[[Page 135]]



Sec. Sec. 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 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. 507.160 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.



Sec. Sec. 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 1614 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, 800 
North Capitol Street, N.W., 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

[[Page 136]]

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; 
64 FR 23551, May 3, 1999]



Sec. Sec. 507.171-507.999  [Reserved]



PART 508_EMPLOYEE ETHICAL CONDUCT STANDARDS AND FINANCIAL 
DISCLOSURE REGULATIONS--Table of Contents




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

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



Sec. 508.101  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. Redesignated at 64 FR 23546, May 3, 1999]

[[Page 137]]



  SUBCHAPTER B_REGULATIONS AFFECTING OCEAN SHIPPING
  IN FOREIGN COMMERCE





PART 515_LICENSING, FINANCIAL RESPONSIBILITY REQUIREMENTS, AND 
GENERAL DUTIES FOR OCEAN TRANSPORTATION INTERMEDIARIES

--Table of Contents




                            Subpart A_General

Sec.
515.1 Scope.
515.2 Definitions.
515.3 License; when required.
515.4 License; when not required.
515.5 Forms and fees.

            Subpart B_Eligibility and Procedure for Licensing

515.11 Basic requirements for licensing; eligibility.
515.12 Application for license.
515.13 Investigation of applicants.
515.14 Issuance and use of license.
515.15 Denial of license.
515.16 Revocation or suspension of license.
515.17 Application after revocation or denial.
515.18 Changes in organization.

 Subpart C_Financial Responsibility Requirements; Claims Against Ocean 
                      Transportation Intermediaries

515.21 Financial responsibility requirements.
515.22 Proof of financial responsibility.
515.23 Claims against an ocean transportation intermediary.
515.24 Agent for service of process.
515.25 Filing of proof of financial responsibility.
515.26 Termination of financial responsibility.
515.27 Proof of compliance.

Appendix A to Subpart C--Ocean Transportation Intermediary (OTI) Bond 
          Form [Form-48]
Appendix B to Subpart C--Ocean Transportation Intermediary (OTI) 
          Insurance Form [Form-67]
Appendix C to Subpart C--Ocean Transportation Intermediary (OTI) 
          Guaranty Form [Form-68]
Appendix D to Subpart C--Ocean Transportation Intermediary (OTI) Group 
          Bond Form [FMC-69]
Appendix E to Subpart C of Part 515--Optional Rider for Additional NVOCC 
          Financial Responsibility (Optional Rider to Form FMC-48] [FORM 
          48A]
Appendix F to Subpart C of Part 515--Optional Rider for Additional NVOCC 
          Financial Responsibility for Group Bonds(Optional Rider to 
          Form FMC-69]

     Subpart D_Duties and Responsibilities of Ocean Transportation 
                  Intermediaries; Reports to Commission

515.31 General duties.
515.32 Freight forwarder duties.
515.33 Records required to be kept.
515.34 Regulated Persons Index.

           Subpart E_Freight Forwarding Fees and Compensation

515.41 Forwarder and principal; fees.
515.42 Forwarder and carrier; compensation.
515.91 OMB control number 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; Pub. L. 105-383, 112 Stat. 3411; 
21 U.S.C. 862.

    Source: 64 FR 11171, Mar. 8, 1999, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 515 appear at 67 FR 
39860, June 11, 2002, and 70 FR 7669, Feb. 15, 2005.



                            Subpart A_General



Sec. 515.1  Scope.

    (a) This part sets forth regulations providing for the licensing as 
ocean transportation intermediaries of persons who wish to carry on the 
business of providing intermediary services, including the grounds and 
procedures for revocation and suspension of licenses. This part also 
prescribes the financial responsibility requirements and the duties and 
responsibilities of ocean transportation intermediaries, and regulations 
concerning practices of ocean transportation intermediaries with respect 
to common carriers.
    (b) Information obtained under this part is used to determine the 
qualifications of ocean transportation intermediaries and their 
compliance with shipping statutes and regulations. Failure to follow the 
provisions of this part may result in denial, revocation or suspension 
of an ocean transportation

[[Page 138]]

intermediary license. Persons operating without the proper license may 
be subject to civil penalties not to exceed $5,500 for each such 
violation unless the violation is willfully and knowingly committed, in 
which case the amount of the civil penalty may not exceed $27,500 for 
each violation; for other violations of the provisions of this part, the 
civil penalties range from $5,500 to $27,500 for each violation (46 
U.S.C. app. 1712). Each day of a continuing violation shall constitute a 
separate violation.



Sec. 515.2  Definitions.

    The terms used in this part are defined as follows:
    (a) Act means the Shipping Act of 1984, as amended by the Ocean 
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of 
1998.
    (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 an 
ocean transportation intermediary arising solely by reason of the 
advance of out-of-pocket expenses incurred in dispatching a shipment.
    (c) Branch office means any office in the United States established 
by or maintained by or under the control of a licensee for the purpose 
of rendering intermediary services, which office is located at an 
address different from that of the licensee's designated home office.
    (d) Brokerage refers to payment by a common carrier to an ocean 
freight broker for the performance of services as specified in paragraph 
(n) of this section.
    (e) Commission means the Federal Maritime Commission.
    (f) 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, except that the term does 
not include a common carrier engaged in ocean transportation by ferry 
boat, ocean tramp, chemical parcel tanker, or by a vessel when primarily 
engaged in the carriage of perishable agricultural commodities.
    (i) if the common carrier and the owner of those commodities are 
wholly-owned, directly or indirectly, by a person primarily engaged in 
the marketing and distribution of those commodities, and
    (ii) only with respect to those commodities.
    (g) Compensation means payment by a common carrier to a freight 
forwarder for the performance of services as specified in Sec. 
515.42(c).
    (h) 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.
    (i) 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;

[[Page 139]]

    (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.
    (j) From the United States means oceanborne export commerce from the 
United States, its territories, or possessions, to foreign countries.
    (k) Licensee is any person licensed by the Federal Maritime 
Commission as an ocean transportation intermediary.
    (l) Non-vessel-operating common carrier services refers to the 
provision of transportation by water of cargo between the United States 
and a foreign country for compensation without operating the vessels by 
which the transportation is provided, and may include, but are not 
limited to, the following:
    (1) Purchasing transportation services from a VOCC and offering such 
services for resale to other persons;
    (2) Payment of port-to-port or multimodal transportation charges;
    (3) Entering into affreightment agreements with underlying shippers;
    (4) Issuing bills of lading or equivalent documents;
    (5) Arranging for inland transportation and paying for inland 
freight charges on through transportation movements;
    (6) Paying lawful compensation to ocean freight forwarders;
    (7) Leasing containers; or
    (8) Entering into arrangements with origin or destination agents.
    (m) Ocean common carrier means a common carrier that operates, for 
all or part of its common carrier service, a vessel 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.
    (n) 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.
    (o) Ocean transportation intermediary means an ocean freight 
forwarder or a non-vessel-operating common carrier. For the purposes of 
this part, the term
    (1) Ocean freight forwarder means a person that--
    (i) in the United States, dispatches shipments from the United 
States via a common carrier and books or otherwise arranges space for 
those shipments on behalf of shippers; and
    (ii) processes the documentation or performs related activities 
incident to those shipments; and
    (2) Non-vessel-operating common carrier (``NVOCC'') 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.
    (p) Person includes individuals, corporations, partnerships and 
associations existing under or authorized by the laws of the United 
States or of a foreign country.
    (q) Principal, except as used in Surety Bond Form FMC-48, and Group 
Bond Form FMC-69, refers to the shipper, consignee, seller, or purchaser 
of property, and to anyone acting on behalf of such shipper, consignee, 
seller, or purchaser of property, who employs the services of a licensed 
freight forwarder to facilitate the ocean transportation of such 
property.
    (r) Reduced forwarding fees means charges to a principal for 
forwarding services that are below the licensed freight forwarder's 
usual charges for such services.
    (s) Shipment means all of the cargo carried under the terms of a 
single bill of lading.
    (t) Shipper means:
    (1) A cargo owner;
    (2) The person for whose account the ocean transportation is 
provided;
    (3) The person to whom delivery is to be made;
    (4) A shippers' association; or
    (5) a non-vessel-operating common carrier that accepts 
responsibility for payment of all charges applicable under the tariff or 
service contract.

[[Page 140]]

    (u) 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.
    (v) Special contract is a contract for freight forwarding services 
which provides for a periodic lump sum fee.
    (w) Transportation-related activities which are covered by the 
financial responsibility obtained pursuant to this part include, to the 
extent involved in the foreign commerce of the United States, any 
activity performed by an ocean transportation intermediary that is 
necessary or customary in the provision of transportation services to a 
customer, but are not limited to the following:
    (1) For an ocean transportation intermediary operating as a Freight 
forwarder, the freight forwarding services enumerated in Sec. 515.2(i), 
and
    (2) For an ocean transportation intermediary operating as a non-
vessel-operating common carrier, the non-vessel-operating common 
carriers services enumerated in Sec. 515.2(l).
    (x) 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.

[64 FR 11171, Mar. 8, 1999, as amended at 65 FR 15254, Mar. 22, 2000; 65 
FR 26512, May 8, 2000]



Sec. 515.3  License; when required.

    Except as otherwise provided in this part, no person in the United 
States may act as an ocean transportation intermediary unless that 
person holds a valid license issued by the Commission. A separate 
license is required for each branch office that is separately 
incorporated. For purposes of this part, a person is considered to be 
``in the United States'' if such person is resident in, or incorporated 
or established under, the laws of the United States. Only persons 
licensed under this part may furnish or contract to furnish ocean 
transportation intermediary services in the United States on behalf of 
an unlicensed ocean transportation intermediary.



Sec. 515.4  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 ocean transportation 
intermediary. (1) An individual employee or unincorporated branch office 
of a licensed ocean transportation intermediary is not required to be 
licensed in order to act solely for such licensee, provided that such 
branch offices:
    (i) Have been reported to the Commission in writing; and
    (ii) Are covered by increased financial responsibility in accordance 
with Sec. 515.21(a)(4).
    (2) Each licensed ocean transportation intermediary will be held 
strictly responsible for the acts or omissions of any of its employees 
or agents rendered in connection with the conduct of its 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.
    (d) Ocean freight brokers. An ocean freight broker is not required 
to be licensed to perform those services specified in Sec. 515.2(n).
    (e) Federal military and civilian household goods. Any person which 
exclusively transports used household goods and personal effects for the 
account of the Department of Defense, or for the account of the federal 
civilian executive agencies shipping under the International Household 
Goods Program administered by the General Services Administration, or 
both, is not subject to the requirements of subpart B of this

[[Page 141]]

part, but may be subject to other requirements, such as alternative 
surety bonding, imposed by the Department of Defense, or the General 
Services Administration.



Sec. 515.5  Forms and Fees.

    (a) Forms. License form FMC-18 Rev., and financial responsibility 
forms FMC-48, FMC-67, FMC-68, FMC-69 may be obtained from the 
Commission's Web site at http://www.fmc.gov, the Director, Bureau of 
Certification and Licensing, Federal Maritime Commission, Washington, DC 
20573, or from any of the Commission's area representatives.
    (b) Fees. All fees shall be payable by money order, certified check, 
cashier's check, or personal check to the ``Federal Maritime 
Commission.'' Should a personal check not be honored when presented for 
payment, the processing of an application under this section shall be 
suspended until the processing fee is paid. In any instance where an 
application has been processed in whole or in part, the fee will not be 
refunded. Such fees are:
    (1) Application for license as required by Sec. 515.12(a): $825;
    (2) Application for status change or license transfer as required by 
Sec. Sec. 515.18(a) and 515.18(b): $525; and
    (3) Supplementary investigations required by Sec. 515.25(a): $225.

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 70 
FR 10330, Mar. 3, 2005]



            Subpart B_Eligibility and Procedure for Licensing



Sec. 515.11  Basic requirements for licensing; eligibility.

    (a) Necessary qualifications. To be eligible for an ocean 
transportation intermediary 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 
transportation intermediary activities in the United States, and the 
necessary character to render ocean transportation intermediary 
services. A foreign NVOCC seeking to be licensed under this part must 
demonstrate that its qualifying individual has a minimum 3 years' 
experience in ocean transportation intermediary activities, and the 
necessary character to render ocean transportation intermediary 
services; and
    (2) It has obtained and filed with the Commission a valid bond, 
proof of insurance, or other surety in conformance with Sec. 515.21.
    (3) An NVOCC with a tariff and proof of financial responsibility in 
effect as of April 30, 1999, may continue to operate as an NVOCC without 
the requisite three years' experience and necessary character to render 
ocean transportation intermediary services and will be provisionally 
licensed while the Commission reviews its application. Such person 
designated as the qualifying individual for a provisionally licensed 
NVOCC may not act as a qualifying individual for another ocean 
transportation intermediary until it has obtained the necessary three 
years' experience in ocean transportation intermediary services.
    (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 intermediaries. An independently qualified 
applicant may be granted a separate license to carry on the business of 
providing ocean transportation intermediary services even though it is 
associated with, under common control with, or otherwise related to 
another ocean transportation intermediary through stock ownership or 
common directors or officers, if such applicant submits: a separate 
application and fee, and a valid instrument of financial responsibility 
in the form and amount prescribed under Sec. 515.21. The qualifying 
individual of one active licensee shall not also be designated as the 
qualifying individual of an applicant for another ocean transportation 
intermediary license, unless both entities are commonly owned or where 
one directly controls the other.

[[Page 142]]

    (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 bills of lading subject to the 
provisions of Sec. 515.42(g).

[64 FR 11171, Mar. 8, 1999; 64 FR 23020, Apr. 29, 1999, as amended at 65 
FR 15254, Mar. 22, 2000]



Sec. 515.12  Application for license.

    (a) Application and forms. (1) Any person who wishes to obtain a 
license to operate as an ocean transportation intermediary shall submit, 
in duplicate, to the Director of the Commission's Bureau of 
Certification and Licensing, a completed application Form FMC-18 Rev. 
(``Application for a License as an Ocean Transportation Intermediary'') 
accompanied by the fee required under Sec. 515.5(b). All applicants 
will be assigned an application number, and each applicant will be 
notified of the number assigned to its application. Notice of filing of 
such application shall be published in the Federal Register and shall 
state the name and address of the applicant and the name and address of 
the qualifying individual. 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) 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 Act, or the Commission's regulations, shall be 
returned by certified U.S. mail or other method reasonably calculated to 
provide actual notice 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. 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.
    (c) Investigation. Each applicant shall be investigated in 
accordance with Sec. 515.13.
    (d) 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.
    (e) Optional method of filing Form FMC-18. In lieu of completing and 
filing Form FMC-18 in paper format, applications and amendments thereto 
may be completed and submitted to the Bureau of Certification and 
Licensing by using the automated FMC-18 filing system in accordance with 
the instructions found on the Commission's home page, http://
www.fmc.gov. A $250 fee for filing a new application and a $125 fee for 
filing an amended application will be assessed for filers using the 
automated FMC-18 filing system instead of the fees listed at Sec. 
515.5(b)(1), (2).

[64 FR 11171, Mar. 8, 1999, as amended at 65 FR 15254, Mar. 22, 2000; 67 
FR 39860, June 11, 2002; 72 FR 44978, Aug. 10, 2007]



Sec. 515.13  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 ocean transportation intermediary duties.



Sec. 515.14  Issuance and use of license.

    (a) Qualification necessary for issuance. The Commission will issue 
a license if

[[Page 143]]

it determines, as a result of its investigation, that the applicant 
possesses the necessary experience and character to render ocean 
transportation intermediary services and has filed the required bond, 
insurance or other surety.
    (b) To whom issued. The Commission will issue a license only in the 
name of the applicant, whether the applicant is a sole proprietorship, a 
partnership, or a corporation. 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, and except as otherwise provided in this part, such 
license is limited exclusively to use by the named licensee and shall 
not be transferred without prior Commission approval to another person.



Sec. 515.15  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 
intermediary services;
    (b) Has failed to respond to any lawful inquiry of the Commission; 
or
    (c) Has made any materially false or misleading statement to the 
Commission in connection with its application; then, a letter of intent 
to deny the application shall be sent to the applicant by certified U.S. 
mail or other method reasonably calculated to provide actual notice, 
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 or other 
method reasonably calculated to provide actual notice.



Sec. 515.16  Revocation or suspension of license.

    (a) Grounds for revocation. Except for the automatic revocation for 
termination of proof of financial responsibility under Sec. 515.26, or 
as provided in Sec. 515.25(b), a license may be revoked or suspended 
after notice and an opportunity for a 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 an 
ocean transportation intermediary;
    (2) Failure to respond to any lawful order or inquiry by the 
Commission;
    (3) Making a materially false or misleading statement to the 
Commission in connection with an application for a license or an 
amendment to an existing license;
    (4) Where the Commission determines that the licensee is not 
qualified to render intermediary services; or
    (5) Failure to honor the licensee's financial obligations to the 
Commission.
    (b) Notice of revocation. The Commission shall publish in the 
Federal Register a notice of each revocation.



Sec. 515.17  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 ocean transportation intermediary services, any 
further application within 3 years of the Commission's notice of 
revocation or denial, 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.



Sec. 515.18  Changes in organization.

    (a) The following changes in an existing licensee's organization 
require prior approval of the Commission, and application for such 
status change or license transfer shall be made on Form FMC-18 Rev., 
filed in duplicate with the Commission's Bureau of Certification and 
Licensing, and accompanied by the fee required under Sec. 515.5(b)(2):

[[Page 144]]

    (1) Transfer of a corporate license to another person;
    (2) Change in ownership of a sole proprietorship;
    (3) Addition of one or more partners to a licensed partnership;
    (4) Any 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 described 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 transportation 
intermediary pursuant to the existing license, if the death is reported 
within 30 days to the Commission and to all principals and shippers 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 executor, 
administrator, heir(s), or assign(s) shall be made on Form FMC-18 Rev., 
and shall be accompanied by the transfer fee required under Sec. 
515.5(b)(2).
    (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) no longer serve in a full-
time, active capacity with the firm, the licensee shall report such 
change to the Commission within 30 days. Within the same 30-day period, 
the licensee shall furnish to the Commission the name(s) and detailed 
intermediary experience of any 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. 515.11(a). The 
licensee may continue to operate as an ocean transportation intermediary 
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 becomes incorporated 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) While the application is pending, 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) 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 30 days after such change occurs by 
submitting in duplicate, an amended Form FMC-18, Rev. No application fee 
is required when reporting this change.
    (f) Optional method of filing Form FMC-18. In lieu of completing and 
filing Form FMC-18 in paper format, applications for approval of changes 
in organization, transfer of license, or changes in the identity or 
status of the designated qualifying individual required under this 
section may be completed and submitted to the Bureau of Certification 
and Licensing by using the automated FMC-18 filing system in accordance 
with the instructions found on the Commission's home page, http://
www.fmc.gov. A $250 fee for filing a new application and a $125 fee for 
filing an amended application will be assessed for filers using the 
automated FMC-18 filing system instead of the fees listed at Sec. 
515.5(b)(1), (2).

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 72 
FR 44978, Aug. 10, 2007]

[[Page 145]]



 Subpart C_Financial Responsibility Requirements; Claims Against Ocean 
                      Transportation Intermediaries



Sec. 515.21  Financial responsibility requirements.

    (a) Form and amount. Except as otherwise provided in this part, no 
person may operate as an ocean transportation intermediary unless that 
person furnishes a bond, proof of insurance, or other surety in a form 
and amount determined by the Commission to insure financial 
responsibility. The bond, insurance or other surety covers the 
transportation-related activities of an ocean transportation 
intermediary only when acting as an ocean transportation intermediary.
    (1) Any person operating in the United States as an ocean freight 
forwarder as defined by Sec. 515.2(o)(1) shall furnish evidence of 
financial responsibility in the amount of $50,000.
    (2) Any person operating in the United States as an NVOCC as defined 
by Sec. 515.2(o)(2) shall furnish evidence of financial responsibility 
in the amount of $75,000.
    (3) Any unlicensed foreign-based entity, not operating in the United 
States as defined in Sec. 515.3, providing ocean transportation 
intermediary services for transportation to or from the United States, 
shall furnish evidence of financial responsibility in the amount of 
$150,000. Such foreign entity will be held strictly responsible 
hereunder for the acts or omissions of its agent in the United States.
    (4) The amount of the financial responsibility required to be 
furnished by any entity pursuant to paragraphs (a)(1) or (a)(2) of this 
section shall be increased by $10,000 for each of the applicant's 
unincorporated branch offices.
    (b) Group financial responsibility. Where a group or association of 
ocean transportation intermediaries accepts liability for an ocean 
transportation intermediary's financial responsibility for such ocean 
transportation intermediary's transportation-related activities under 
the Act, the group or association of ocean transportation intermediaries 
must file either a group supplemental coverage bond form, insurance form 
or guaranty form, clearly identifying each ocean transportation 
intermediary covered, before a covered ocean transportation intermediary 
may provide ocean transportation intermediary services. In such cases a 
group or association must establish financial responsibility in an 
amount equal to the lesser of the amount required by paragraph (a) of 
this section for each member or $3,000,000 in aggregate. A group or 
association of ocean transportation intermediaries may also file an 
optional bond rider as provided for by Sec. 515.25(c).
    (c) Common trade name. Where more than one person operates under a 
common trade name, separate proof of financial responsibility is 
required covering each corporation or person separately providing ocean 
transportation intermediary services.
    (d) Federal military and civilian household goods. Any person which 
exclusively transports used household goods and personal effects for the 
account of the Department of Defense, or for the account of the federal 
civilian executive agencies shipping under the International Household 
Goods Program administered by the General Services Administration, or 
both, is not subject to the requirements of subpart C of this part, but 
may be subject to other requirements, such as alternative surety 
bonding, imposed by the Department of Defense, or the General Services 
Administration.

[64 FR 11171, Mar. 8, 1999, as amended at 69 FR 17945, Apr. 6, 2004]



Sec. 515.22  Proof of financial responsibility.

    Prior to the date it commences furnishing ocean transportation 
intermediary services, every ocean transportation intermediary shall 
establish its financial responsibility for the purpose of this part by 
one of the following methods:
    (a) Surety bond, by filing with the Commission a valid bond on Form 
FMC-48. Bonds must be issued by a surety company found acceptable by the 
Secretary of the Treasury;
    (b) Insurance, by filing with the Commission evidence of insurance 
on Form FMC-67. The insurance must provide coverage for damages, 
reparations or

[[Page 146]]

penalties arising from any transportation-related activities under the 
Act of the insured ocean transportation intermediary. This evidence of 
financial responsibility shall be accompanied by: in the case of a 
financial rating, the Insurer's financial rating on the rating 
organization's letterhead or designated form; in the case of insurance 
provided by Underwriters at Lloyd's, documentation verifying membership 
in Lloyd's; and in the case of insurance provided by surplus lines 
insurers, documentation verifying inclusion on a current ``white list'' 
issued by the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners. The Insurer must certify that it 
has sufficient and acceptable assets located in the United States to 
cover all damages arising from the transportation-related activities of 
the insured ocean transportation intermediary as specified under the 
Act. The insurance must be placed with:
    (1) An Insurer having a financial rating of Class V or higher under 
the Financial Size Categories of A.M. Best & Company, or equivalent from 
an acceptable international rating organization;
    (2) Underwriters at Lloyd's; or
    (3) Surplus lines insurers named on a current ``white list'' issued 
by the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners; or
    (c) Guaranty, by filing with the Commission evidence of guaranty on 
Form FMC-68. The guaranty must provide coverage for damages, reparations 
or penalties arising from any transportation-related activities under 
the Act of the covered ocean transportation intermediary. This evidence 
of financial responsibility shall be accompanied by: in the case of a 
financial rating, the Guarantor's financial rating on the rating 
organization's letterhead or designated form; in the case of a guaranty 
provided by Underwriters at Lloyd's, documentation verifying membership 
in Lloyd's; and in the case of a guaranty provided by surplus lines 
insurers, documentation verifying inclusion on a current ``white list'' 
issued by the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners. The Guarantor must certify that 
it has sufficient and acceptable assets located in the United States to 
cover all damages arising from the transportation-related activities of 
the covered ocean transportation intermediary as specified under the 
Act. The guaranty must be placed with:
    (1) A Guarantor having a financial rating of Class V or higher under 
the Financial Size Categories of A.M. Best & Company, or equivalent from 
an acceptable international rating organization;
    (2) Underwriters at Lloyd's; or
    (3) Surplus lines insurers named on a current ``white list'' issued 
by the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners; or
    (d) Evidence of financial responsibility of the type provided for in 
paragraphs (a), (b) and (c) of this section established through and 
filed with the Commission by a group or association of ocean 
transportation intermediaries on behalf of its members, subject to the 
following conditions and procedures:
    (1) Each group or association of ocean transportation intermediaries 
shall notify the Commission of its intention to participate in such a 
program and furnish documentation as will demonstrate its authenticity 
and authority to represent its members, such as articles of 
incorporation, bylaws, etc.;
    (2) Each group or association of ocean transportation intermediaries 
shall provide the Commission with a list certified by its Chief 
Executive Officer containing the names of those ocean transportation 
intermediaries to which it will provide coverage; the manner and amount 
of existing coverage each covered ocean transportation intermediary has; 
an indication that the existing coverage provided each ocean 
transportation intermediary is provided by a surety bond issued by a 
surety company found acceptable to the Secretary of the Treasury, or by 
insurance or guaranty issued by a firm meeting the requirements of 
paragraphs (b) or (c) of this section with coverage limits specified 
above in Sec. 515.21; and the name, address and facsimile number of 
each surety, insurer

[[Page 147]]

or guarantor providing coverage pursuant to this section. Each group or 
association of ocean transportation intermediaries or its financial 
responsibility provider shall notify the Commission within 30 days of 
any changes to its list;
    (3) The group or association shall provide the Commission with a 
sample copy of each type of existing financial responsibility coverage 
used by member ocean transportation intermediaries;
    (4) Each group or association of ocean transportation intermediaries 
shall be responsible for ensuring that each member's financial 
responsibility coverage allows for claims to be made in the United 
States against the Surety, Insurer or Guarantor for any judgment for 
damages against the ocean transportation intermediary arising from its 
transportation-related activities under the Act, or order for 
reparations issued pursuant to section 11 of the Act, or any penalty 
assessed against the ocean transportation intermediary pursuant to 
section 13 of the Act. Each group or association of ocean transportation 
intermediaries shall be responsible for requiring each member ocean 
transportation intermediary to provide it with valid proof of financial 
responsibility annually;
    (5) Where the group or association of ocean transportation 
intermediaries determines to secure on behalf of its members other forms 
of financial responsibility, as specified by this section, for damages, 
reparations or penalties not covered by a member's individual financial 
responsibility coverage, such additional coverage must:
    (i) Allow claims to be made in the United States directly against 
the group or association's Surety, Insurer or Guarantor for damages 
against each covered member ocean transportation intermediary arising 
from each covered member ocean transportation intermediary's 
transportation-related activities under the Act, or order for 
reparations issued pursuant to section 11 of the Act, or any penalty 
assessed against each covered member ocean transportation intermediary 
pursuant to section 13 of the Act; and
    (ii) Be for an amount up to the amount determined in accordance with 
Sec. 515.21(b), taking into account a member's individual financial 
responsibility coverage already in place. In the event of a claim 
against a group bond, the bond must be replenished up to the original 
amount of coverage within 30 days of payment of the claim; and
    (iii) be in excess of a member's individual financial responsibility 
coverage already in place; and
    (6) The coverage provided by the group or association of ocean 
transportation intermediaries on behalf of its members shall be provided 
by:
    (i) in the case of a surety bond, a surety company found acceptable 
to the Secretary of the Treasury and issued by such a surety company on 
Form FMC-69; and
    (ii) in the case of insurance and guaranty, a firm having a 
financial rating of Class V or higher under the Financial Size 
Categories of A.M. Best & Company or equivalent from an acceptable 
international rating organization, Underwriters at Lloyd's, or surplus 
line insurers named on a current ``white list'' issued by the Non-
Admitted Insurers' Information Office of the National Association of 
Insurance Commissioners and issued by such firms on Form FMC-67 and Form 
FMC-68, respectively.
    (e) All forms and documents for establishing financial 
responsibility of ocean transportation intermediaries prescribed in this 
section shall be submitted to the Director, Bureau of Certification and 
Licensing, Federal Maritime Commission, Washington, DC 20573. Such forms 
and documents must clearly identify the name; trade name, if any; and 
the address of each ocean transportation intermediary.

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002]



Sec. 515.23  Claims against an ocean transportation intermediary.

    The Commission or another party may seek payment from the bond, 
insurance, or other surety that is obtained by an ocean transportation 
intermediary pursuant to this section. (See also Sec. 545.3 of this 
chapter.)
    (a) Payment pursuant to Commission order. If the Commission issues 
an order for reparation pursuant to sections 11 or 14 of the Act, or 
assesses a

[[Page 148]]

penalty pursuant to section 13 of the Act, a bond, insurance, or other 
surety shall be available to pay such order or penalty.
    (b) Payment pursuant to a claim. (1) If a party does not file a 
complaint with the Commission pursuant to section 11 of the Act, but 
otherwise seeks to pursue a claim against an ocean transportation 
intermediary bond, insurance or other surety for damages arising from 
its transportation-related activities, it shall attempt to resolve its 
claim with the financial responsibility provider prior to seeking 
payment on any judgment for damages obtained. When a claimant seeks 
payment under this section, it simultaneously shall notify both the 
financial responsibility provider and the ocean transportation 
intermediary of the claim by certified mail, return receipt requested. 
The bond, insurance, or other surety may be available to pay such claim 
if:
    (i) The ocean transportation intermediary consents to payment, 
subject to review by the financial responsibility provider; or
    (ii) The ocean transportation intermediary fails to respond within 
forty-five (45) days from the date of the notice of the claim to address 
the validity of the claim, and the financial responsibility provider 
deems the claim valid.
    (2) If the parties fail to reach an agreement in accordance with 
paragraph (b)(1) of this section within ninety (90) days of the date of 
the initial notification of the claim, the bond, insurance, or other 
surety shall be available to pay any final judgment for damages obtained 
from an appropriate court. The financial responsibility provider shall 
pay such judgment for damages only to the extent they arise from the 
transportation-related activities of the ocean transportation 
intermediary ordinarily within 30 days, without requiring further 
evidence related to the validity of the claim; it may, however, inquire 
into the extent to which the judgment for damages arises from the ocean 
transportation intermediary's transportation-related activities.
    (c) The Federal Maritime Commission shall not serve as depository or 
distributor to third parties of bond, guaranty, or insurance funds in 
the event of any claim, judgment, or order for reparation.
    (d) Optional bond riders. The Federal Maritime Commission shall not 
serve as a depository or distributor to third parties of funds payable 
pursuant to optional bond riders described in Sec. 515.25(c).

[64 FR 11171, Mar. 8, 1999, as amended at 65 FR 26512, May 8, 2000; 65 
FR 33480, May 24, 2000; 69 FR 17945, Apr. 6, 2004]



Sec. 515.24  Agent for service of process.

    (a) Every ocean transportation intermediary not located in the 
United States and every group or association of ocean transportation 
intermediaries not located in the United States which provides financial 
coverage for the financial responsibility of a member ocean 
transportation intermediary shall designate and maintain a person in the 
United States as legal agent for the receipt of judicial and 
administrative process, including subpoenas.
    (b) If the designated legal agent cannot be served because of death, 
disability, or unavailability, the Secretary, Federal Maritime 
Commission, will be deemed to be the legal agent for service of process. 
Any person serving the Secretary must also send to the ocean 
transportation intermediary, or group or association of ocean 
transportation intermediaries which provide financial coverage for the 
financial responsibilities of a member ocean transportation 
intermediary, by registered mail, return receipt requested, at its 
address published in its tariff, a copy of each document served upon the 
Secretary, and shall attest to that mailing at the time service is made 
upon the Secretary.
    (c) Service of administrative process, other than subpoenas, may be 
effected upon the legal agent by mailing a copy of the document to be 
served by certified or registered mail, return receipt requested. 
Administrative subpoenas shall be served in accordance with Sec. 
502.134 of this chapter.
    (d) Designations of resident agent under paragraphs (a) and (b) of 
this section and provisions relating to service of process under 
paragraph (c) of this section shall be published in the ocean 
transportation intermediary's tariff,

[[Page 149]]

when required, in accordance with part 520 of this chapter.
    (e) Every ocean transportation intermediary using a group or 
association of ocean transportation intermediaries to cover its 
financial responsibility requirement under Sec. 515.21(b) shall publish 
the name and address of the group or association's resident agent for 
receipt of judicial and administrative process, including subpoenas, in 
its tariff, when required, in accordance with part 520 of this chapter.



Sec. 515.25  Filing of proof of financial responsibility.

    (a) Filing of proof of financial responsibility. Upon notification 
by the Commission by certified U.S. mail or other method reasonably 
calculated to provide actual notice that the applicant has been approved 
for licensing, the applicant shall file with the Director of the 
Commission's Bureau of Certification and Licensing, proof of financial 
responsibility in the form and amount prescribed in Sec. 515.21. No 
tariff shall be published until a license is issued, if applicable, and 
proof of financial responsibility is provided. No license will be issued 
until the Commission is in receipt of valid proof of financial 
responsibility from the applicant. If more than six (6) months elapse 
between issuance of the notification of qualification and receipt of the 
proof of financial responsibility, the Commission may, at its 
discretion, undertake a supplementary investigation to determine the 
applicant's continued qualification, for which a fee is required under 
Sec. 515.5(b)(3). Should the applicant not file the requisite proof of 
financial responsibility within two (2) years of notification, the 
Commission will consider the application to be invalid.
    (b) Branch offices. New proof of financial responsibility, or a 
rider to the existing proof of financial responsibility, increasing the 
amount of the financial responsibility in accordance with Sec. 
515.21(a)(4), 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.
    (c) Optional bond rider. Any NVOCC as defined by Sec. 515.2(o)(2), 
in addition to a bond meeting the requirements of Sec. 515.21(a)(2), 
may obtain and file with the Commission proof of an optional bond rider, 
as provided for in appendix E or appendix F of this part.

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 69 
FR 17945, Apr. 6, 2004]



Sec. 515.26  Termination of financial responsibility.

    No license shall remain in effect unless valid proof of financial 
responsibility is maintained on file with the Commission. Upon receipt 
of notice of termination of such financial responsibility, the 
Commission shall notify the concerned licensee by certified U.S. mail or 
other method reasonably calculated to provide actual notice, at its last 
known address, that the Commission shall, without hearing or other 
proceeding, revoke the license as of the termination date of the 
financial responsibility, unless the licensee shall have submitted valid 
replacement proof of financial responsibility before such termination 
date. Replacement financial responsibility must bear an effective date 
no later than the termination date of the expiring financial 
responsibility.



Sec. 515.27  Proof of compliance.

    (a) No common carrier may transport cargo for the account of a 
shipper known by the carrier to be an NVOCC unless the carrier has 
determined that the NVOCC has a tariff and financial responsibility as 
required by sections 8 and 19 of the Act.
    (b) A common carrier can obtain proof of an NVOCC's compliance with 
the tariff and financial responsibility requirements by:
    (1) Reviewing a copy of the tariff published by the NVOCC and in 
effect under part 520 of this chapter;
    (2) Consulting the Commission to verify that the NVOCC has filed 
evidence of its financial responsibility; or
    (3) Any other appropriate procedure, provided that such procedure is 
set forth in the carrier's tariff.
    (c) A common carrier that has employed the procedure prescribed in 
either paragraphs (b)(1) or (b)(2) of this section shall be deemed to 
have met its obligations under section 10(b)(11) of

[[Page 150]]

the Act, unless the common carrier knew that such NVOCC was not in 
compliance with the tariff and financial responsibility requirements.
    (d) The Commission will publish at its website, www.fmc.gov, a list 
of the locations of all carrier and conference tariffs, and a list of 
ocean transportation intermediaries who have furnished the Commission 
with evidence of financial responsibility, current as of the last date 
on which the list is updated. The Commission will update this list on a 
periodic basis.

 Appendix A to Subpart C of Part 515--Ocean Transportation Intermediary 
                        (OTI) Bond Form [Form 48]

                               Form FMC-48

                       Federal Maritime Commission

    Ocean Transportation Intermediary (OTI) Bond (Section 19, Shipping 
Act of 1984, as amended by the Ocean Shipping Reform Act of 1998 and the 
Coast Guard Authorization Act of 1998) --------------------[indicate 
whether NVOCC or Freight Forwarder], as Principal (hereinafter 
``Principal''), and --------------------, as Surety (hereinafter 
``Surety'') are held and firmly bound unto the United States of America 
in the sum of $-------------------- for the payment of which sum we bind 
ourselves, our heirs, executors, administrators, successors and assigns, 
jointly and severally.
    Whereas, Principal operates as an OTI in the waterborne foreign 
commerce of the United States in accordance with the Shipping Act of 
1984, as amended by the Ocean Shipping Reform Act of 1998 and the Coast 
Guard Authorization Act of 1998 (``1984 Act''), 46 U.S.C. app 1702, and, 
if necessary, has a valid tariff published pursuant to 46 CFR part 515 
and 520, and pursuant to section 19 of the 1984 Act, files this bond 
with the Commission;
    Now, Therefore, The condition of this obligation is that the penalty 
amount of this bond shall be available to pay any judgment or any 
settlement made pursuant to a claim under 46 CFR Sec. 515.23(b) for 
damages against the Principal arising from the Principal's 
transportation-related activities or order for reparations issued 
pursuant to section 11 of the 1984 Act, 46 U.S.C. app. 1710, or any 
penalty assessed against the Principal pursuant to section 13 of the 
1984 Act, 46 U.S.C. app. 1712.
    This bond shall inure to the benefit of any and all persons who have 
obtained a judgment or a settlement made pursuant to a claim under 46 
CFR Sec. 515.23(b) for damages against the Principal arising from its 
transportation-related activities or order of reparation issued pursuant 
to section 11 of the 1984 Act, and to the benefit of the Federal 
Maritime Commission for any penalty assessed against the Principal 
pursuant to section 13 of the 1984 Act. However, the bond shall not 
apply to shipments of used household goods and personal effects for the 
account of the Department of Defense or the account of federal civilian 
executive agencies shipping under the International Household Goods 
Program administered by the General Services Administration.
    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 aggregate the penalty of this bond, and in no event shall 
the Surety's total obligation hereunder exceed said penalty regardless 
of the number of claims or claimants.
    This bond is effective the ------ day of --------------------, ----
------ and shall continue in effect until discharged or terminated as 
herein provided. The Principal or the Surety may at any time terminate 
this bond by written notice to the Federal Maritime Commission at its 
office in Washington, DC. Such termination shall become effective thirty 
(30) days after receipt of said notice by the Commission. The Surety 
shall not be liable for any transportation-related activities of the 
Principal after the expiration of the 30-day period but such termination 
shall not affect the liability of the Principal and Surety for any event 
occurring prior to the date when said termination becomes effective.
    The Surety consents to be sued directly in respect of any bona fide 
claim owed by Principal for damages, reparations or penalties arising 
from the transportation-related activities under the 1984 Act of 
Principal in the event that such legal liability has not been discharged 
by the Principal or Surety after a claimant has obtained a final 
judgment (after appeal, if any) against the Principal from a United 
States Federal or State Court of competent jurisdiction and has complied 
with the procedures for collecting on such a judgment pursuant to 46 CFR 
Sec. 515.23(b), the Federal Maritime Commission, or where all parties 
and claimants otherwise mutually consent, from a foreign court, or where 
such claimant has become entitled to payment of a specified sum by 
virtue of a compromise settlement agreement made with the Principal and/
or Surety pursuant to 46 CFR Sec. 515.23(b), whereby, upon payment of 
the agreed sum, the Surety is to be fully, irrevocably and 
unconditionally discharged from all further liability to such claimant; 
provided, however, that Surety's total obligation hereunder shall not 
exceed the amount set forth in 46 CFR Sec. 515.21, as applicable.
    The underwriting Surety will promptly notify the Director, Bureau of 
Certification and

[[Page 151]]

Licensing, Federal Maritime Commission, Washington, DC 20573, of any 
claim(s) against this bond.
    Signed and sealed this ------ day of --------------------, --------
--.
(Please type name of signer under each signature.)

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

    Trade Name, If Any

________________________________________________________________________
Corporate Principal

________________________________________________________________________
State of Incorporation

    Trade Name, If Any

________________________________________________________________________
Business Address

________________________________________________________________________
By

________________________________________________________________________
Title

(Affix Corporate Seal)

________________________________________________________________________
Corporate Surety

________________________________________________________________________
Business Address

________________________________________________________________________
By

________________________________________________________________________
Title

(Affix Corporate Seal)

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002]

 Appendix B to Subpart C of Part 515--Ocean Transportation Intermediary 
                     (OTI) Insurance Form [Form 67]

                               Form FMC-67

                       Federal Maritime Commission

            Ocean Transportation Intermediary (OTI) Insurance

         Form Furnished as Evidence of Financial Responsibility

                        Under 46 U.S.C. app. 1718

    This is to certify, that the (Name of Insurance Company), 
(hereinafter ``Insurer'') of (Home Office Address of Company) has issued 
to (OTI or Group or Association of OTIs [indicate whether NVOCC(s) or 
Freight Forwarder(s)]) (hereinafter ``Insured'') of (Address of OTI or 
Group or Association of OTIs) a policy or policies of insurance for 
purposes of complying with the provisions of 46 U.S.C. app. 1718 and the 
rules and regulations, as amended, of the Federal Maritime Commission, 
which provide compensation for damages, reparations or penalties arising 
from the transportation-related activities of Insured, and made pursuant 
to the Shipping Act of 1984, as amended by the Ocean Shipping Reform Act 
of 1998 and the Coast Guard Authorization Act of 1998 (``1984 Act'').
    Whereas, the Insured is or may become an OTI subject to the 1984 
Act, 46 U.S.C. app. 1701 et seq., and the rules and regulations of the 
Federal Maritime Commission, or is or may become a group or association 
of OTIs, and desires to establish financial responsibility in accordance 
with section 19 of the 1984 Act, files with the Commission this 
Insurance Form as evidence of its financial responsibility and evidence 
of a financial rating for the Insurer of Class V or higher under the 
Financial Size Categories of A.M. Best & Company or equivalent from an 
acceptable international rating organization on such organization's 
letterhead or designated form, or, in the case of insurance provided by 
Underwriters at Lloyd's, documentation verifying membership in Lloyd's, 
or, in the case of surplus lines insurers, documentation verifying 
inclusion on a current ``white list'' issued by the Non-Admitted 
Insurers' Information Office of the National Association of Insurance 
Commissioners.
    Whereas, the Insurance is written to assure compliance by the 
Insured with section 19 of the 1984 Act, 46 U.S.C. app. 1718, and the 
rules and regulations of the Federal Maritime Commission relating to 
evidence of financial responsibility for OTIs, this Insurance shall be 
available to pay any judgment obtained or any settlement made pursuant 
to a claim under 46 CFR Sec. 515.23(b) for damages against the Insured 
arising from the Insured's transportation-related activities under the 
1984 Act, or order for reparations issued pursuant to section 11 of the 
1984 Act, 46 U.S.C. app. 1710, or any penalty assessed against the 
Insured pursuant to section 13 of the 1984 Act, 46 U.S.C. app. 1712; 
provided, however, that Insurer's obligation for a group or association 
of OTIs shall extend only to such damages, reparations or penalties 
described herein as are not covered by another insurance policy, 
guaranty or surety bond held by the OTI(s) against which a claim or 
final judgment has been brought and that Insurer's total obligation 
hereunder shall not exceed the amount per OTI set forth in 46 CFR Sec. 
515.21 or the amount per group or association of OTIs set forth in 46 
CFR Sec. 515.21 in aggregate.

[[Page 152]]

    Whereas, the Insurer certifies that it has sufficient and acceptable 
assets located in the United States to cover all liabilities of Insured 
herein described, this Insurance shall inure to the benefit of any and 
all persons who have a bona fide claim against the Insured pursuant to 
46 CFR Sec. 515.23(b) arising from its transportation-related 
activities under the 1984 Act, or order of reparation issued pursuant to 
section 11 of the 1984 Act, and to the benefit of the Federal Maritime 
Commission for any penalty assessed against the Insured pursuant to 
section 13 of the 1984 Act.
    The Insurer consents to be sued directly in respect of any bona fide 
claim owed by Insured for damages, reparations or penalties arising from 
the transportation-related activities under the 1984 Act, of Insured in 
the event that such legal liability has not been discharged by the 
Insured or Insurer after a claimant has obtained a final judgment (after 
appeal, if any) against the Insured from a United States Federal or 
State Court of competent jurisdiction and has complied with the 
procedures for collecting on such a judgment pursuant to 46 CFR Sec. 
515.23(b), the Federal Maritime Commission, or where all parties and 
claimants otherwise mutually consent, from a foreign court, or where 
such claimant has become entitled to payment of a specified sum by 
virtue of a compromise settlement agreement made with the Insured and/or 
Insurer pursuant to 46 CFR Sec. 515.23(b), whereby, upon payment of the 
agreed sum, the Insurer is to be fully, irrevocably and unconditionally 
discharged from all further liability to such claimant; provided, 
however, that Insurer's total obligation hereunder shall not exceed the 
amount per OTI set forth in 46 CFR Sec. 515.21 or the amount per group 
or association of OTIs set forth in 46 CFR Sec. 515.21.
    The liability of the Insurer shall not be discharged by any payment 
or succession of payments hereunder, unless and until such payment or 
payments shall aggregate the penalty of the Insurance in the amount per 
member OTI set forth in 46 CFR Sec. 515.21 or the amount per group or 
association of OTIs set forth in 46 CFR Sec. 515.21, regardless of the 
financial responsibility or lack thereof, or the solvency or bankruptcy, 
of Insured.
    The insurance evidenced by this undertaking shall be applicable only 
in relation to incidents occurring on or after the effective date and 
before the date termination of this undertaking becomes effective. The 
effective date of this undertaking shall be ------ day of --------------
------, ----------, and shall continue in effect until discharged or 
terminated as herein provided. The Insured or the Insurer may at any 
time terminate the Insurance by filing a notice in writing with the 
Federal Maritime Commission at its office in Washington, D.C. Such 
termination shall become effective thirty (30) days after receipt of 
said notice by the Commission. The Insurer shall not be liable for any 
transportation-related activities under the 1984 Act of the Insured 
after the expiration of the 30-day period but such termination shall not 
affect the liability of the Insured and Insurer for such activities 
occurring prior to the date when said termination becomes effective.
    Insurer or Insured shall immediately give notice to the Federal 
Maritime Commission of all lawsuits filed, judgments rendered, and 
payments made under the insurance policy.
    (Name of Agent) -------------------- domiciled in the United States, 
with offices located in the United States, at -------------------- is 
hereby designated as the Insurer's agent for service of process for the 
purposes of enforcing the Insurance certified to herein.
    If more than one insurer joins in executing this document, that 
action constitutes joint and several liability on the part of the 
insurers.
    The Insurer will promptly notify the Director, Bureau of 
Certification and Licensing, Federal Maritime Commission, Washington, 
D.C. 20573, of any claim(s) against the Insurance.
    Signed and sealed this ---------- day of --------------------, ----
------.
________________________________________________________________________
Signature of Official signing on behalf of Insurer
________________________________________________________________________
Type Name and Title of signer
    This Insurance Form has been filed with the Federal Maritime 
Commission.

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002]

 Appendix C to Subpart C of Part 515--Ocean Transportation Intermediary 
                      (OTI) Guaranty Form [Form 68]

                               Form FMC-68

                       Federal Maritime Commission

    Guaranty in Respect of Ocean Transportation Intermediary (OTI) 
Liability for Damages, Reparations or Penalties Arising from 
Transportation-Related Activities Under the Shipping Act of 1984, as 
amended by the Ocean Shipping Reform Act of 1998 and the Coast Guard 
Authorization Act of 1998
    1. Whereas -------------------------------------- (Name of Applicant 
[indicate whether NVOCC or Freight Forwarder]) (hereinafter 
``Applicant'') is or may become an Ocean Transportation Intermediary 
(``OTI'') subject to the Shipping Act of 1984, as amended by the Ocean 
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of 
1998 (``1984 Act''), 46 U.S.C. app. 1701 et seq., and the rules and

[[Page 153]]

regulations of the Federal Maritime Commission (``FMC''), or is or may 
become a group or association of OTIs, and desires to establish its 
financial responsibility in accordance with section 19 of the 1984 Act, 
then, provided that the FMC shall have accepted, as sufficient for that 
purpose, the Applicant's application, supported by evidence of a 
financial rating for the Guarantor of Class V or higher under the 
Financial Size Categories of A.M. Best & Company or equivalent from an 
acceptable international rating organization on such rating 
organization's letterhead or designated form, or, in the case of 
Guaranty provided by Underwriters at Lloyd's, documentation verifying 
membership in Lloyd's, or, in the case of surplus lines insurers, 
documentation verifying inclusion on a current ``white list'' issued by 
the Non-Admitted Insurers' Information Office of the National 
Association of Insurance Commissioners, the undersigned Guarantor 
certifies that it has sufficient and acceptable assets located in the 
United States to cover all damages arising from the transportation-
related activities of the covered OTI as specified under the 1984 Act.
    2. Now, Therefore, The condition of this obligation is that the 
penalty amount of this Guaranty shall be available to pay any judgment 
obtained or any settlement made pursuant to a claim under 46 CFR Sec. 
515.23(b) for damages against the Applicant arising from the Applicant's 
transportation-related activities or order for reparations issued 
pursuant to section 11 of the 1984 Act, 46 U.S.C. app. 1710, or any 
penalty assessed against the Principal pursuant to section 13 of the 
1984 Act, 46 U.S.C. app. 1712.
    3. The undersigned Guarantor hereby consents to be sued directly in 
respect of any bona fide claim owed by Applicant for damages, 
reparations or penalties arising from Applicant's transportation-related 
activities under the 1984 Act, in the event that such legal liability 
has not been discharged by the Applicant after any such claimant has 
obtained a final judgment (after appeal, if any) against the Applicant 
from a United States Federal or State Court of competent jurisdiction 
and has complied with the procedures for collecting on such a judgment 
pursuant to 46 CFR Sec. 515.23(b), the FMC, or where all parties and 
claimants otherwise mutually consent, from a foreign court, or where 
such claimant has become entitled to payment of a specified sum by 
virtue of a compromise settlement agreement made with the Applicant and/
or Guarantor pursuant to 46 CFR Sec. 515.23(b), whereby, upon payment 
of the agreed sum, the Guarantor is to be fully, irrevocably and 
unconditionally discharged from all further liability to such claimant. 
In the case of a guaranty covering the liability of a group or 
association of OTIs, Guarantor's obligation extends only to such 
damages, reparations or penalties described herein as are not covered by 
another insurance policy, guaranty or surety bond held by the OTI(s) 
against which a claim or final judgment has been brought.
    4. The Guarantor's liability under this Guaranty in respect to any 
claimant shall not exceed the amount of the guaranty; and the aggregate 
amount of the Guarantor's liability under this Guaranty shall not exceed 
the amount per OTI set forth in 46 CFR Sec. 515.21 or the amount per 
group or association of OTIs set forth in 46 CFR Sec. 515.21 in 
aggregate.
    5. The Guarantor's liability under this Guaranty shall attach only 
in respect of such activities giving rise to a cause of action against 
the Applicant, in respect of any of its transportation-related 
activities under the 1984 Act, occurring after the Guaranty has become 
effective, and before the expiration date of this Guaranty, which shall 
be the date thirty (30) days after the date of receipt by FMC of notice 
in writing that either Applicant or the Guarantor has elected to 
terminate this Guaranty. The Guarantor and/or Applicant specifically 
agree to file such written notice of cancellation.
    6. Guarantor shall not be liable for payments of any of the damages, 
reparations or penalties hereinbefore described which arise as the 
result of any transportation-related activities of Applicant after the 
cancellation of the Guaranty, as herein provided, but such cancellation 
shall not affect the liability of the Guarantor for the payment of any 
such damages, reparations or penalties prior to the date such 
cancellation becomes effective.
    7. Guarantor shall pay, subject to the limit of the amount per OTI 
set forth in 46 CFR Sec. 515.21, directly to a claimant any sum or sums 
which Guarantor, in good faith, determines that the Applicant has failed 
to pay and would be held legally liable by reason of Applicant's 
transportation-related activities, or its legal responsibilities under 
the 1984 Act and the rules and regulations of the FMC, made by Applicant 
while this agreement is in effect, regardless of the financial 
responsibility or lack thereof, or the solvency or bankruptcy, of 
Applicant.
    8. Applicant or Guarantor shall immediately give written notice to 
the FMC of all lawsuits filed, judgments rendered, and payments made 
under the Guaranty.
    9. Applicant and Guarantor agree to handle the processing and 
adjudication of claims by claimants under the Guaranty established 
herein in the United States, unless by mutual consent of all parties and 
claimants another country is agreed upon. Guarantor agrees to appoint an 
agent for service of process in the United States.
    10. This Guaranty shall be governed by the laws in the State of -- 
to the extent not inconsistent with the rules and regulations of the 
FMC.

[[Page 154]]

    11. This Guaranty is effective the day of ------ ,------------------
-- ,---------- 12:01 a.m., standard time at the address of the Guarantor 
as stated herein and shall continue in force until terminated as herein 
provided.
    12. The Guarantor hereby designates as the Guarantor's legal agent 
for service of process domiciled in the United States ------------------
--, with offices located in the United States at -------------------- , 
for the purposes of enforcing the Guaranty described herein.

________________________________________________________________________
(Place and Date of Execution)

________________________________________________________________________
(Type Name of Guarantor)

________________________________________________________________________
(Type Address of Guarantor)

By
________________________________________________________________________
 (Signature and Title)

 Appendix D to Subpart C of Part 515--Ocean Transportation Intermediary 
                     (OTI) Group Bond Form [FMC-69]

                               Form FMC-69

                       Federal Maritime Commission

    Ocean Transportation Intermediary (OTI) Group Supplemental Coverage 
Bond Form (Section 19, Shipping Act of 1984, as amended by the Ocean 
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of 
1998)
    --------------------[indicate whether NVOCC or Freight Forwarder], 
as Principal (hereinafter ``Principal''), and --------------------------
-------------- as Surety (hereinafter ``Surety'') are held and firmly 
bound unto the United States of America in the sum of $----------------
---------- for the payment of which sum we bind ourselves, our heirs, 
executors, administrators, successors and assigns, jointly and 
severally.
    Whereas, (Principal) -------------------- operates as a group or 
association of OTIs in the waterborne foreign commerce of the United 
States and pursuant to section 19 of the Shipping Act of 1984, as 
amended by the Ocean Shipping Reform Act of 1998 and the Coast Guard 
Authorization Act of 1998 (``1984 Act''), files this bond with the 
Federal Maritime Commission;
    Now, therefore, the conditions of this obligation are that the 
penalty amount of this bond shall be available to pay any judgment 
obtained or any settlement made pursuant to a claim under 46 CFR Sec. 
515.23(b) against the OTIs enumerated in Appendix A of this bond for 
damages arising from any or all of the identified OTIs' transportation-
related activities under the 1984 Act, 46 U.S.C. app. 1701 et seq., or 
order for reparations issued pursuant to section 11 of the 1984 Act, 46 
U.S.C. app. 1710, or any penalty assessed pursuant to section 13 of the 
1984 Act, 46 U.S.C. app. 1712, that are not covered by the identified 
OTIs' individual insurance policy(ies), guaranty(ies) or surety bond(s).
    This bond shall inure to the benefit of any and all persons who have 
obtained a judgment or made a settlement pursuant to a claim under 46 
CFR Sec. 515.23(b) for damages against any or all of the OTIs 
identified in Appendix A not covered by said OTIs' insurance 
policy(ies), guaranty(ies) or surety bond(s) arising from said OTIs' 
transportation-related activities under the 1984 Act, or order for 
reparation issued pursuant to section 11 of the 1984 Act, and to the 
benefit of the Federal Maritime Commission for any penalty assessed 
against said OTIs pursuant to section 13 of the 1984 Act. However, the 
bond shall not apply to shipments of used household goods and personal 
effects for the account of the Department of Defense or the account of 
federal civilian executive agencies shipping under the International 
Household Goods Program administered by the General Services 
Administration.
    The Surety consents to be sued directly in respect of any bona fide 
claim owed by any or all of the OTIs identified in Appendix A for 
damages, reparations or penalties arising from the transportation-
related activities under the 1984 Act of the OTIs in the event that such 
legal liability has not been discharged by the OTIs or Surety after a 
claimant has obtained a final judgment (after appeal, if any) against 
the OTIs from a United States Federal or State Court of competent 
jurisdiction and has complied with the procedures for collecting on such 
a judgment pursuant to 46 CFR Sec. 515.23(b), the Federal Maritime 
Commission, or where all parties and claimants otherwise mutually 
consent, from a foreign court, or where such claimant has become 
entitled to payment of a specified sum by virtue of a compromise 
settlement agreement made with the OTIs and/or Surety pursuant to 46 CFR 
Sec. 515.23(b), whereby, upon payment of the agreed sum, the Surety is 
to be fully, irrevocably and unconditionally discharged from all further 
liability to such claimant.
    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 aggregate the penalty of this bond, and in no event shall 
the Surety's total obligation hereunder exceed the amount per member OTI 
set forth in 46 CFR Sec. 515.21 identified in Appendix A, or the amount 
per group or association of OTIs set forth in 46 CFR Sec. 515.21, 
regardless of the number of OTIs, claims or claimants.

[[Page 155]]

    This bond is effective the ------ day of --------------------, ----
------, and shall continue in effect until discharged or terminated as 
herein provided. The Principal or the Surety may at any time terminate 
this bond by written notice to the Federal Maritime Commission at its 
office in Washington, DC. Such termination shall become effective thirty 
(30) days after receipt of said notice by the Commission. The Surety 
shall not be liable for any transportation-related activities of the 
OTIs identified in Appendix A as covered by the Principal after the 
expiration of the 30-day period, but such termination shall not affect 
the liability of the Principal and Surety for any transportation-related 
activities occurring prior to the date when said termination becomes 
effective.
    The Principal or financial responsibility provider will promptly 
notify the underwriting Surety and the Director, Bureau of Certification 
and Licensing, Federal Maritime Commission, Washington, DC 20573, of any 
additions, deletions or changes to the OTIs enumerated in Appendix A. In 
the event of additions to Appendix A, coverage will be effective upon 
receipt of such notice, in writing, by the Commission at its office in 
Washington, DC. In the event of deletions to Appendix A, termination of 
coverage for such OTI(s) shall become effective 30 days after receipt of 
written notice by the Commission. Neither the Principal nor the Surety 
shall be liable for any transportation-related activities of the OTI(s) 
deleted from Appendix A after the expiration of the 30-day period, but 
such termination shall not affect the liability of the Principal and 
Surety for any transportation-related activities of said OTI(s) 
occurring prior to the date when said termination becomes effective.
    The underwriting Surety will promptly notify the Director, Bureau of 
Certification and Licensing, Federal Maritime Commission, Washington, DC 
20573, of any claim(s) against this bond.
    Signed and sealed this ------ day of --------------------, --------
--,
(Please type name of signer under each signature).

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

________________________________________________________________________
Individual Principal or Partner

________________________________________________________________________
Business Address

    Trade Name, if Any

________________________________________________________________________
Corporate Principal

________________________________________________________________________
Place of Incorporation

    Trade Name, if Any

________________________________________________________________________
Business Address (Affix Corporate Seal)

________________________________________________________________________
By

________________________________________________________________________
Title

________________________________________________________________________
Principal's Agent for Service of Process (Required if Principal is not a 
U.S. Corporation)

________________________________________________________________________
Agent's Address

________________________________________________________________________
Corporate Surety

________________________________________________________________________
Business Address (Affix Corporate Seal)

________________________________________________________________________
By

________________________________________________________________________
Title

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002]

Appendix E to Subpart C of Part 515--Optional Rider for Additional NVOCC 
   Financial Responsibility (Optional Rider to Form FMC-48) [FORM 48A]

                 FMC-48A, OMB No. 3072-0018, (04/06/04)

 Optional Rider for Additional NVOCC Financial Responsibility [Optional 
                          Rider to Form FMC-48]

                                  RIDER

    The undersigned [------------], as Principal and [------------], as 
Surety do hereby agree that the existing Bond No. [------------] to the 
United States of America and filed with the Federal Maritime Commission 
pursuant to section 19 of the Shipping Act of 1984 is modified as 
follows:
    1. The following condition is added to this Bond:
    a. An additional condition of this Bond is that $21,000 (payable in 
U.S. Dollars or Renminbi Yuan at the option of the Surety) shall be 
available to pay any fines and penalties for activities in the U.S.-
China trades imposed by the Ministry of Communications of the People's 
Republic of China (``MOC'') or its authorized competent communications 
department of the people's government of the province, autonomous region 
or municipality directly under the Central Government or the State 
Administration of Industry and Commerce pursuant to the Regulations of 
the People's Republic of China on International Maritime Transportation 
and the Implementing Rules of the Regulations

[[Page 156]]

of the PRC on International Maritime Transportation promulgated by MOC 
Decree No. 1, January 20, 2003. Such amount is separate and distinct 
from the bond amount set forth in the first paragraph of this Bond. 
Payment under this Rider shall not reduce the bond amount in the first 
paragraph of this Bond or affect its availability.
    b. The liability of the Surety shall not be discharged by any 
payment or succession of payments pursuant to section 1 of this Rider, 
unless and until the payment or payments shall aggregate the amount set 
forth in section 1a of this Rider. In no event shall the Surety's 
obligation under this Rider exceed the amount set forth in section 1a 
regardless of the number of claims.
    c. This Rider is effective the [------------] day of [------------], 
200 [------------], and shall continue in effect until discharged, 
terminated as herein provided, or upon termination of the Bond in 
accordance with the sixth paragraph of the Bond. The Principal or the 
Surety may at any time terminate this Rider by written notice to the 
Federal Maritime Commission at its offices in Washington, D.C., 
accompanied by proof of transmission of notice to MOC. Such termination 
shall become effective thirty (30) days after receipt of said notice and 
proof of transmission by the Federal Maritime Commission. The Surety 
shall not be liable for fines or penalties imposed on the Principal 
after the expiration of the 30-day period but such termination shall not 
affect the liability of the Principal and Surety for any fine or penalty 
imposed prior to the date when said termination becomes effective.
    2. This Bond remains in full force and effect according to its terms 
except as modified above.
    In witness whereof we have hereunto set our hands and seals on this 
[------------] day of [------------], 200 [------------],
[Principal], By:
[Surety], By:

             Privacy Act and Paperwork Reduction Act Notice

    The collection of this information is authorized generally by 
section 19 of the Shipping Act of 1984, 46 U.S.C. app. 1718.
    This is an optional form. Submission is completely voluntary. 
Failure to submit this form will in no way impact the Federal Maritime 
Commission's assessment of your firm's financial responsibility.
    You are not required to provide the information requested on a form 
that is subject to the Paperwork Reduction Act unless the form displays 
a valid OMB control number. Copies of this form will be maintained until 
the corresponding license has been revoked.
    The time needed to complete and file this form will vary depending 
on individual circumstances. The estimated average time is: 
Recordkeeping, 20 minutes; Learning about the form, 20 minutes; 
Preparing and sending the form to the FMC, 20 minutes.
    If you have comments concerning the accuracy of these time estimates 
or suggestions for making this form simpler, we would be happy to hear 
from you. You can write to the Secretary, Federal Maritime Commission, 
800 North Capitol Street, NW., Washington, DC 20573-0001 or e-mail: 
secretary@fmc.gov.

[69 FR 17945, Apr. 6, 2004]

Appendix F to Subpart C of Part 515--Optional Rider for Additional NVOCC 
Financial Responsibility for Group Bonds [Optional Rider to Form FMC-69]

                  FMC-69A, OMB No. 3072-0018 (04/06/04)

 Optional Rider for Additional NVOCC Financial Responsibility for Group 
                  Bonds [Optional Rider to Form FMC-69]

                                  RIDER

    The undersigned [------------], as Principal and [------------], as 
Surety do hereby agree that the existing Bond No. [------------] to the 
United States of America and filed with the Federal Maritime Commission 
pursuant to section 19 of the Shipping Act of 1984 is modified as 
follows:
    1. The following condition is added to this Bond:
    a. An additional condition of this Bond is that $ [------------
](payable in U.S. Dollars or Renminbi Yuan at the option of the Surety) 
shall be available to any NVOCC enumerated in an Appendix to this Rider 
to pay any fines and penalties for activities in the U.S.-China trades 
imposed by the Ministry of Communications of the People's Republic of 
China (``MOC'') or its authorized competent communications department of 
the people's government of the province, autonomous region or 
municipality directly under the Central Government or the State 
Administration of Industry and Commerce pursuant to the Regulations of 
the People's Republic of China on International Maritime Transportation 
and the Implementing Rules of the Regulations of the PRC on 
International Maritime Transportation promulgated by MOC Decree No. 1, 
January 20, 2003. Such amount is separate and distinct from the bond 
amount set forth in the first paragraph of this Bond. Payment under this 
Rider shall not reduce the bond amount in the first paragraph of this 
Bond or affect its availability. The Surety shall indicate that $21,000 
is available to pay such fines and penalties for each NVOCC listed on 
appendix A to this Rider wishing to exercise this option.
    b. The liability of the Surety shall not be discharged by any 
payment or succession of payments pursuant to section 1 of this Rider,

[[Page 157]]

unless and until the payment or payments shall aggregate the amount set 
forth in section 1a of this Rider. In no event shall the Surety's 
obligation under this Rider exceed the amount set forth in section 1a 
regardless of the number of claims.
    c. This Rider is effective the [------------] day of [------------], 
200[------------], and shall continue in effect until discharged, 
terminated as herein provided, or upon termination of the Bond in 
accordance with the sixth paragraph of the Bond. The Principal or the 
Surety may at any time terminate this Rider by written notice to the 
Federal Maritime Commission at its offices in Washington, DC., 
accompanied by proof of transmission of notice to MOC. Such termination 
shall become effective thirty (30) days after receipt of said notice and 
proof of transmission by the Federal Maritime Commission. The Surety 
shall not be liable for fines or penalties imposed on the Principal 
after the expiration of the 30-day period but such termination shall not 
affect the liability of the Principal and Surety for any fine or penalty 
imposed prior to the date when said termination becomes effective.
    2. This Bond remains in full force and effect according to its terms 
except as modified above.
    In witness whereof we have hereunto set our hands and seals on this 
[------------] day of [------------], 200 [------------],
[Principal], :By
[Surety], By:

             Privacy Act and Paperwork Reduction Act Notice

    The collection of this information is authorized generally by 
Section 19 of the Shipping Act of 1984, 46 U.S.C. app. 1718.
    This is an optional form. Submission is completely voluntary. 
Failure to submit this form will in no way impact the Federal Maritime 
Commission's assessment of your firm's financial responsibility.
    You are not required to provide the information requested on a form 
that is subject to the Paperwork Reduction Act unless the form displays 
a valid OMB control number. Copies of this form will be maintained until 
the corresponding license has been revoked.
    The time needed to complete and file this form will vary depending 
on individual circumstances. The estimated average time is: 
Recordkeeping, 20 minutes; Learning about the form, 20 minutes; 
Preparing and sending the form to the FMC, 20 minutes.
    If you have comments concerning the accuracy of these time estimates 
or suggestions for making this form simpler, we would be happy to hear 
from you. You can write to the Secretary, Federal Maritime Commission, 
800 North Capitol Street, NW., Washington, DC 20573-0001 or e-mail: 
secretary@fmc.gov.

[69 FR 17946, Apr. 6, 2004]



     Subpart D_Duties and Responsibilities of Ocean Transportation 
                  Intermediaries; Reports to Commission



Sec. 515.31  General duties.

    (a) License; name and number. Each licensee shall carry on its 
business only under the name in which its license is issued and only 
under its license number as assigned by the Commission. When the 
licensee's name appears on shipping documents, its Commission license 
number shall also be included.
    (b) Stationery and billing forms. 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 Commission license number on all papers and invoices 
concerned with any ocean transportation intermediary transaction.
    (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 increased financial responsibility in accordance 
with Sec. 515.21(a)(4).
    (d) Arrangements with ocean transportation intermediaries 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 ocean transportation intermediary services on 
shipments as an associate, correspondent, officer, employee, agent, or 
sub-agent of any person whose license has been revoked or suspended 
pursuant to Sec. 515.16;

[[Page 158]]

    (2) Assist in the furtherance of any ocean transportation 
intermediary business of such person;
    (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 ocean 
transportation intermediary business of the licensee.
    (e) 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 an 
ocean transportation intermediary transaction which it has reason to 
believe is false or fraudulent, nor shall any such licensee knowingly 
impart to a principal, shipper, common carrier or other person, false 
information relative to any ocean transportation intermediary 
transaction.
    (f) Errors and omissions of the principal or shipper. A licensee who 
has reason to believe that its principal or shipper has not, with 
respect to a shipment to be handled by such licensee, complied with the 
laws of the United States, or has made any error or misrepresentation 
in, or omission from, any export declaration, bill of lading, affidavit, 
or other document which the principal or shipper executes in connection 
with such shipment, shall advise its principal or shipper 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.
    (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 ocean transportation intermediary 
business, and shall respond promptly to any lawful inquiries by such 
representative.
    (h) Express written authority. No licensee shall endorse or 
negotiate any draft, check, or warrant drawn to the order of its 
principal or shipper without the express written authority of such 
principal or shipper.
    (i) Accounting to principal or shipper. Each licensee shall account 
to its principal(s) or shipper(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) or shipper(s).



Sec. 515.32  Freight forwarder duties.

    (a) Notice of shipper affiliation. When a licensed freight forwarder 
is a shipper or seller of goods in international commerce or affiliated 
with such an entity, the licensed freight forwarder shall have the 
option of:
    (1) Identifying itself as such and/or, where applicable, listing its 
affiliates on its office stationery and billing forms, or
    (2) 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.

    (b) Arrangements with unauthorized persons. No licensed freight 
forwarder shall enter into an agreement or other arrangement (excluding 
sales agency arrangements not prohibited by law or this part) with an 
unlicensed person that bestows any fee, compensation, or other benefit 
upon the unlicensed person. When a licensed freight forwarder is 
employed to perform forwarding services by the agent of the person 
responsible for paying for such services, the licensed freight forwarder 
shall also transmit a copy of its invoice for services rendered to the 
person paying those charges.
    (c) Information provided to the principal. No licensed freight 
forwarder shall withhold any information concerning a forwarding 
transaction from its principal, and each licensed freight forwarder 
shall comply with the laws of the United States and shall exercise due 
diligence to assure that all information provided to its principal or 
provided in any export declaration, bill of lading, affidavit, or other 
document which the licensed freight forwarder

[[Page 159]]

executes in connection with a shipment is accurate.
    (d) Invoices; documents available upon request. Upon the request of 
its principal(s), each licensed freight forwarder shall provide a 
complete breakout of its charges and a true copy of any underlying 
document or bill of charges pertaining to the licensed freight 
forwarder'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.



Sec. 515.33  Records required to be kept.

    Each licensed freight forwarder shall maintain in an orderly and 
systematic manner, and keep current and correct, all records and books 
of account in connection with its forwarding business. These records 
must be kept in the United States in such manner as to enable authorized 
Commission personnel to readily determine the licensed freight 
forwarder's cash position, accounts receivable and accounts payable. The 
licensed freight forwarder may maintain these records in either paper or 
electronic form, which shall be readily available in usable form to the 
Commission; the electronically maintained records shall be no less 
accessible than if they were maintained in paper form. These 
recordkeeping requirements are independent of the retention requirements 
of other federal agencies. The licensed freight forwarder 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, canceled 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 between a licensed 
freight forwarder and a principal, or modification or cancellation 
thereof. Bona fide shippers shall also have access to such records upon 
reasonable request.



Sec. 515.34  Regulated Persons Index.

    The Regulated Persons Index is a database containing the names, 
addresses, phone/fax numbers and financial responsibility information, 
where applicable, of Commission-regulated entities. The database may be 
purchased for $108 by contacting the Bureau of Certification and 
Licensing, Federal Maritime Commission, Washington, DC 20573. Contact 
information is listed on the Commission's website at www.fmc.gov.

[64 FR 11171, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 70 
FR 10330, Mar. 3, 2005]



           Subpart E_Freight Forwarding Fees and Compensation



Sec. 515.41  Forwarder and principal; fees.

    (a) Compensation or fee sharing. No licensed freight forwarder 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) Receipt for cargo. Each receipt for cargo issued by a licensed 
freight forwarder shall be clearly identified as ``Receipt for Cargo'' 
and be readily distinguishable from a bill of lading.
    (c) Special contracts. To the extent that special arrangements or 
contracts are entered into by a licensed freight forwarder, the 
forwarder shall not deny

[[Page 160]]

equal terms to other shippers similarly situated.
    (d) Reduced forwarding fees. No licensed freight forwarder 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 licensed 
freight forwarder 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.
    (e) In-plant arrangements. A licensed freight forwarder may place an 
employee or employees on the premises of its principal as part of the 
services rendered to such principal, provided:
    (1) The in-plant forwarder arrangement is reduced to writing in the 
manner of a special contract under Sec. 515.33(d), which shall identify 
all services provided by either party (whether or not constituting a 
freight forwarding service); state the amount of compensation to be 
received by either party for such services; set forth all details 
concerning the procurement, maintenance or sharing of office facilities, 
personnel, furnishings, equipment and supplies; describe all powers of 
supervision or oversight of the licensee's employee(s) to be exercised 
by the principal; and detail all procedures for the administration or 
management of in-plant arrangements between the parties; and
    (2) The arrangement is not an artifice for a payment or other 
unlawful benefit to the principal.



Sec. 515.42  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 licensed freight forwarder's name may appear with the name of the 
shipper, but the forwarder must be identified as the shipper's agent.
    (b) Certification required for compensation. A common carrier may 
pay compensation to a licensed freight forwarder 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 forwarder 
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 
certifications for a period of five (5) years.
    (c) Form of certification. Where a licensed freight forwarder is 
entitled to compensation, the forwarder shall provide the common carrier 
with a signed certification which indicates that the forwarder has 
performed the required services that entitle it to compensation. The 
required certification may be placed on one copy of the relevant bill of 
lading, a summary statement from the forwarder, the forwarder's 
compensation invoice, or as an endorsement on the carrier's compensation 
check. Each forwarder shall retain evidence in its shipment files that 
the forwarder, in fact, has performed the required services enumerated 
on the certification. 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.

    (d) Compensation pursuant to tariff provisions. No licensed freight 
forwarder, or employee thereof, shall accept compensation from a common 
carrier which is different from that specifically provided for in the 
carrier's effective tariff(s). No conference or group of common carriers 
shall deny in the export commerce of the United States compensation to 
an ocean

[[Page 161]]

freight forwarder or limit that compensation, as provided for by section 
19(e)(4) of the Act and 46 CFR part 535.
    (e) Electronic data interchange. A licensed freight forwarder may 
own, operate, or otherwise maintain or supervise an electronic data 
interchange-based computer system in its forwarding business; however, 
the forwarder must directly perform value-added services as described in 
paragraph (c) of this section in order to be entitled to carrier 
compensation.
    (f) Compensation; services performed by underlying carrier; 
exemptions. No licensed freight forwarder shall charge or collect 
compensation in the event the underlying common carrier, or its agent, 
has, at the request of such forwarder, performed any of the forwarding 
services set forth in Sec. 515.2(i), unless such carrier or agent is 
also a licensed freight forwarder, or unless no other licensed freight 
forwarder is willing and able to perform such services.
    (g) Duplicative compensation. A common carrier shall not pay 
compensation for the services described in paragraph (c) of this section 
more than once on the same shipment.
    (h) Non-vessel-operating common carriers; compensation. (1) A 
licensee operating as an NVOCC and a freight forwarder, or a person 
related thereto, 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 an NVOCC 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.
    (i) Compensation; beneficial interest. A licensed 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.



Sec. 515.91  OMB control number assigned pursuant to the Paperwork Reduction Act.

    The Commission has received OMB approval for this collection of 
information pursuant to the Paperwork Reduction Act of 1995, as amended. 
In accordance with that Act, agencies are required to display a 
currently valid control number. The valid control number for this 
collection of information is 3072-0012.



PART 520_CARRIER AUTOMATED TARIFFS--Table of Contents




Sec.
520.1 Scope and purpose.
520.2 Definitions.
520.3 Publication responsibilities.
520.4 Tariff contents.
520.5 Standard tariff terminology.
520.6 Retrieval of information.
520.7 Tariff limitations.
520.8 Effective dates.
520.9 Access to tariffs.
520.10 Integrity of tariffs.
520.11 Non-vessel-operating common carriers.
520.12 Time/Volume rates.
520.13 Exemptions and exceptions.
520.14 Special permission.
520.91 OMB control number assigned pursuant to the Paperwork Reduction 
          Act.

Appendix A to Part 520--Standard Terminology and Codes

    Authority: 5 U.S.C. 553; 46 U.S.C. app. 1701-1702, 1707-1709, 1712, 
1716; and sec. 424 of Pub. L. 105-383, 112 Stat. 3411.

    Source: 64 FR 11225, Mar. 8, 1999, unless otherwise noted.



Sec. 520.1  Scope and purpose.

    (a) Scope. The regulations of this part govern the publication of 
tariffs in automated systems by common carriers and conferences in the 
waterborne foreign commerce of the United States. They cover the 
transportation of property by such carriers, including through 
transportation with inland carriers. They implement the tariff 
publication requirements of section 8 of the Shipping Act of 1984 
(``Act''), as

[[Page 162]]

modified by the Ocean Shipping Reform Act of 1998 and section 424 of 
Public Law 105-258.
    (b) Purpose. The requirements of this part are intended to permit:
    (1) Shippers and other members of the public to obtain reliable and 
useful information concerning the rates and charges that will be 
assessed by common carriers and conferences for their transportation 
services;
    (2) Carriers and conferences to meet their publication requirements 
pursuant to section 8 of the Act;
    (3) The Commission to ensure that carrier tariff publications are 
accurate and accessible and to protect the public from violations by 
carriers of section 10 of the Act; and
    (4) The Commission to review and monitor the activities of 
controlled carriers pursuant to section 9 of the Act.



Sec. 520.2  Definitions.

    The following definitions shall apply to this part:
    Act means the Shipping Act of 1984, as amended by the Ocean Shipping 
Reform Act of 1998.
    Amendment means any change, alteration, correction or modification 
of an existing tariff.
    Assessorial charge means the amount that is added to the basic ocean 
freight rate.
    BTA means the Commission's Bureau of Trade Analysis or its successor 
bureau.
    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 requirements of this part.
    Co-loading means the combining of cargo by two or more NVOCCs for 
tendering to an ocean common carrier under the name of one or more of 
the NVOCCs.
    Combination rate means a rate for a shipment moving under intermodal 
transportation which is computed by the addition of a TRI, and an inland 
rate applicable from/to inland points not covered by the TRI.
    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.
    Commodity description number means a number that may be used to 
identify a commodity description.
    Commodity index means an index of the commodity descriptions 
contained in a tariff.
    Commodity rate means a rate for shipping to or from specific 
locations a commodity or commodities specifically named or described in 
the tariff in which the rate or rates are published.
    Common carrier 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 or by a vessel when 
primarily engaged in the carriage of perishable agricultural 
commodities:
    (i) If the common carrier and the owner of those commodities are 
wholly-owned, directly or indirectly, by a person primarily engaged in 
the marketing and distribution of those commodities and
    (ii) Only with respect to the carriage of those commodities.
    Conference means an agreement between or among two or more ocean 
common carriers which provides for the fixing of and adherence to 
uniform tariff rates, charges, practices and conditions of service 
relating to the receipt, carriage, handling and/or delivery of 
passengers or cargo for all members, but the term does not include joint 
service, consortium, pooling, sailing, or transshipment agreements.
    Consignee means the recipient of cargo from a shipper; the person to

[[Page 163]]

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.
    Controlled carrier means an ocean common carrier that is, or whose 
operating assets are, directly or indirectly owned or controlled by a 
government; 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 an agency 
thereof, or by any public or private person 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.
    Effective date means the date upon which a published tariff or 
tariff element is scheduled to go into effect. Where there are multiple 
publications to a tariff element on the same day, the last element 
published with the same effective date is the one effective for that 
day.
    Expiration date means the last day after which the entire tariff or 
tariff element is no longer in effect.
    Foreign commerce means that commerce under the jurisdiction of the 
Act.
    Forest products means forest products 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 and paper board in rolls or in pallet or 
skid-sized sheets, liquid or granular by-products derived from pulping 
and papermaking, and engineered wood products.
    Harmonized Code means the coding provisions of the Harmonized 
System.
    Harmonized System means the Harmonized Tariff Schedule of the United 
States (``U.S. HTS''), based on the international Harmonized System, 
administered by the U.S. Customs Service for the U.S. International 
Trade Commission, and Schedule B, administered by the U.S. Census 
Bureau.
    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.)
    Inland rate means a rate specified from/to an ocean port to/from an 
inland point, for specified modes of overland transportation.
    Inland rate table means a structured matrix of geographic inland 
locations (points, postal codes/postal 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.
    Intermodal transportation means continuous through 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 
through routes using combination rates.
    Joint rates means rates or charges established by two or more common 
carriers for ocean transportation over the combined routes of such 
common carriers.
    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.

[[Page 164]]

    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 TRI origin and/or 
destination.
    Loyalty contract means a contract with an ocean common carrier or 
agreement by which a shipper obtains lower rates by committing all or a 
fixed portion of its cargo to that carrier or agreement and the contract 
provides for a deferred rebate arrangement.
    Motor vehicle means a wheeled vehicle whose primary purpose is 
ordinarily the non-commercial transportation of passengers, including an 
automobile, pickup truck, minivan, or sport utility vehicle.
    Ocean common carrier means a common carrier that operates, for all 
or part of its common carrier service, a vessel 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.
    Ocean transportation intermediary means an ocean freight forwarder 
or a non-vessel-operating common carrier. For purposes of this part,
    (1) Ocean freight forwarder means a person that--
    (i) In the United States, dispatches shipments from the United 
States via a common carrier and books or otherwise arranges space for 
those shipments on behalf of shippers; and
    (ii) Processes the documentation or performs related activities 
incident to those shipments; and
    (2) Non-vessel-operating common carrier (``NVOCC'') 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.
    Open rate 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.
    Organization name means an entity's name on file with the Commission 
and for which the Commission assigns an organization number.
    Organization record means information regarding an entity, including 
its name, address, and organization type.
    Origin scope means a location group defining the geographic range of 
cargo origins covered by a tariff.
    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.
    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.
    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 and public utility or 
public service purpose, including disaster relief projects.
    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.
    Publication date means the date a tariff or tariff element is 
published in a carrier's or conference's tariff.
    Publisher means an organization authorized to publish or amend 
tariff information.
    Rate means a price stated 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.
    Retrieval means the process by which a person accesses a tariff via 
dial-up

[[Page 165]]

telecommunications or a network link and interacts with the carrier's or 
publisher's system on a transaction-by-transaction basis to retrieve 
published tariff matter.
    Rules means the stated terms and conditions set by the tariff owner 
which govern the application of tariff rates, charges and other matters.
    Scope means the location group(s) (geographic groupings(s)) listing 
the ports or ranges of ports to and from which the tariff's rates apply.
    Shipment means all of the cargo carried under the terms of a single 
bill of lading.
    Shipper means:
    (1) A cargo owner;
    (2) The person for whose account the ocean transportation is 
provided;
    (3) The person to whom delivery is to be made;
    (4) A shipper's association; or
    (5) An NVOCC that accepts responsibility for payment of all charges 
applicable under the tariff or service contract.
    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.
    Special permission means permission, authorized by the Commission, 
for certain tariff publications that do not conform with applicable 
regulations, usually involving effectiveness on less than statutory 
notice.
    Tariff means a publication containing the actual rates, charges, 
classifications, rules, regulations and practices of a common carrier or 
a conference of common carriers. 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 conference and, in the case of conferences, must be 
restricted to activities authorized by the basic conference agreement.
    Tariff number means a unique 3-digit number assigned by the 
publisher to distinguish it from other tariffs. Tariffs may be 
identified by the 6-digit organization number plus the user-assigned 
tariff number (e.g., 999999-001) or a Standard Carrier Alpha Code 
(``SCAC'') plus the user-assigned tariff number.
    Tariff rate item (``TRI'') 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.
    TRI number means a number that consists of the numeric commodity 
code, if any, and a unique numeric suffix used to differentiate TRIs 
within the same commodity description. TRI numbers are not required in 
systems that do not use numeric commodity coding.
    Through rate means the single amount charged by a common carrier in 
connection with through transportation.
    Through transportation 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.
    Thru date means the date after which an amendment to a tariff 
element is designated by the publisher to be unavailable for use and the 
previously effective tariff element automatically goes back into effect.
    Time/volume rate means a rate published in a tariff which is 
conditioned upon receipt of a specified aggregate volume of cargo or 
aggregate freight revenue over a specified period of time.
    Trade name means a name used for conducting business, but which is 
not necessarily its legal name. This is also known as a ``d/b/a'' (doing 
business as) name.
    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 an 
ocean common

[[Page 166]]

carrier subject to the Commission's jurisdiction.

[64 FR 11225, Mar. 8, 1999, as amended at 64 FR 23022, Apr. 29, 1999; 65 
FR 26512, May 8, 2000; 67 FR 39860, June 11, 2002]



Sec. 520.3  Publication responsibilities.

    (a) General. Unless otherwise exempted by Sec. 520.13, all common 
carriers and conferences shall keep open for public inspection, in 
automated tariff systems, tariffs showing all rates, charges, 
classifications, rules, and practices between all points or ports on 
their own routes and on any through transportation route that has been 
established.
    (b) Conferences. Conferences shall publish, in their automated 
tariff systems, rates offered pursuant to independent action by their 
members and may publish any open rates offered by their members. 
Alternatively, open rates may be published in individual tariffs of 
conference members.
    (c) Agents. Common carriers or conferences may use agents to meet 
their publication requirements under this part.
    (d) Notification. Each common carrier and conference shall notify 
BTA, prior to the commencement of common carrier service pursuant to a 
published tariff, of its organization name, organization number, home 
office address, name and telephone number of firm's representative, the 
location of its tariffs, and the publisher, if any, used to maintain its 
tariffs, by electronically submitting Form FMC-1 via the Commission's 
website at www.fmc.gov. Any changes to the above information shall be 
immediately transmitted to BTA. The Commission will provide a unique 
organization number to new entities operating as common carriers or 
conferences in the U.S. foreign commerce.
    (e) Location of tariffs. The Commission will publish on its website, 
www.fmc.gov, a list of the locations of all carrier and conference 
tariffs. The Commission will update this list on a periodic basis.

[64 FR 11225, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002]



Sec. 520.4  Tariff contents.

    (a) General. Tariffs published pursuant to this part shall:
    (1) State the places between which cargo will be carried;
    (2) List each classification of cargo in use;
    (3) State the level of ocean transportation intermediary, as defined 
by section 3(17)(A) of the Act, compensation, if any, to be paid by a 
carrier or conference;
    (4) State separately each terminal or other charge, privilege, or 
facility under the control of the carrier or conference and any rules or 
regulations that in any way change, affect, or determine any part of the 
aggregate of the rates or charges;
    (5) Include sample copies of any bill of lading, contract of 
affreightment or other document evidencing the transportation agreement;
    (6) Include copies of any loyalty contract, omitting the shipper's 
name;
    (7) Contain an organization record, tariff record, and tariff rules; 
and
    (8) For commodity tariffs, also contain commodity descriptions and 
tariff rate items.
    (b) Organization record. Common carriers' and conferences' 
organization records shall include:
    (1) Organization name;
    (2) Organization number assigned by the Commission;
    (3) Agreement number, where applicable;
    (4) Organization type (e.g., ocean common carrier (VOCC), conference 
(CONF), non-vessel-operating common carrier (NVOCC) or agent);
    (5) Home office address and telephone number of firm's 
representative;
    (6) Names and organization numbers of all affiliates to conferences 
or agreements, including trade names; and
    (7) The publisher, if any, used to maintain the organization's 
tariffs.
    (c) Tariff record. The tariff record for each tariff shall include:
    (1) Organization number and name, including any trade name;
    (2) Tariff number;
    (3) Tariff title;
    (4) Tariff type (e.g., commodity, rules, equipment interchange, or 
bill of lading);
    (5) Contact person and address;
    (6) Default measurement and currency units;

[[Page 167]]

    (7) Origination and destination scope; and
    (8) A statement certifying that all information contained in the 
tariff is true and accurate and no unlawful alterations will be 
permitted.
    (d) Tariff rules. Carriers and conferences shall publish in their 
tariffs any rule that affects the application of the tariff.
    (e) Commodity descriptions. (1) For each separate commodity in a 
tariff, a distinct numeric code may be used. Tariff publishers are not 
required to use any numeric code to identify commodities, but should 
they choose to do so, they are encouraged to use the U.S. Harmonized 
Tariff Schedule (``U.S. HTS'') for both the commodity coding and 
associated terminology (definitions).
    (2) If a tariff publisher uses a numeric code to identify 
commodities, the following commodity types shall be preceded by their 
associated 2-digit prefixes, with the remaining digits at the 
publisher's option:
    (i) Mixed commodities--``99'';
    (ii) Projects--``98''; and
    (iii) non-commodities, e.g., ``cargo, n.o.s.,'' ``general cargo,'' 
or ``freight-all kinds''--``00''.
    (3) Commodity index. (i) Each commodity description created under 
this section shall have at least one similar index entry which will 
logically represent the commodity within the alphabetical index. 
Publishers 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.
    (f) Tariff rate items. A tariff rate item (``TRI'') is the single 
freight rate in effect for the transportation of cargo under a specified 
set of transportation conditions. TRIs must contain the following:
    (1) Brief commodity description;
    (2) TRI number (optional);
    (3) Publication date;
    (4) Effective date;
    (5) Origin and destination locations or location groups;
    (6) Rate and rate basis; and
    (7) Service code.
    (g) Location groups. In the primary tariff, or in a governing 
tariff, a publisher may 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 TRIs 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.
    (h) Inland rate tables. If a carrier or conference desires to 
provide intermodal transportation to or from named points/postal regions 
at combination rates, it shall clearly and accurately set forth the 
applicable charges in an ``Inland Rate Tables'' section. An inland rate 
table may be constructed to provide an inland distance which is applied 
to a per mile rate to calculate the inland rate.
    (i) Shipper requests. Conference tariffs shall contain clear and 
complete instructions, in accordance with the agreement's provisions, 
stating where and by what method shippers may file requests and 
complaints and how they may engage in consultation pursuant to section 
5(b)(6) of the Act, together with a sample rate request form or a 
description of the information necessary for processing the request or 
complaint.
    (j) Inland divisions. Common carriers are not required to state 
separately or otherwise reveal in tariffs the inland division of a 
through rate.



Sec. 520.5  Standard tariff terminology.

    (a) Approved codes. The Standard Terminology Appendix contains codes 
for rate bases, container sizes, service, etc., and units for weight, 
measure and distance. They are intended to provide a standard 
terminology baseline for tariffs to facilitate retriever efficiency. 
Tariff publishers may use additional codes, if they are clearly defined 
in their tariffs.

[[Page 168]]

    (b) Geographic names. Tariffs should employ locations (points) that 
are published in the National Imagery and Mapping Agency (``NIMA'') 
gazetteer or the Geographic Names Information System (``GNIS'') 
developed by the U.S. Geological Survey. Ports published or approved for 
publication in the World Port Index (Pub. No. 150) should also be used 
in tariffs. Tariff publishers may use geographic names that are 
currently in use and have not yet been included in these publications.



Sec. 520.6  Retrieval of information.

    (a) General. Tariffs systems shall present retrievers with the 
ability to:
    (1) Search for commonly understood tariff objects (e.g., 
commodities, origins, destinations, etc.) without restricting such 
search to a specific tariff;
    (2) Search a tariff for a rate on the basis of origin, destination 
and commodity;
    (3) Employ a tariff selection option; or
    (4) Select an object group (e.g., rules, locations, groups, etc.) 
within a particular tariff.
    (b) Search capability. Tariffs shall provide the capability to 
search for tariff matter by non-case sensitive text search. Text search 
matches for commodity descriptions should result in a commodity or 
commodity index list.
    (c) Commodities and TRIs. Retriever selection of a specific 
commodity from a commodity index list shall display the commodity 
description and provide an option for searching for a rate (e.g., on the 
basis of origin/destination) or a TRI list, if multiple TRIs are in 
effect for the commodity.
    (d) Object groups. Retriever selection of a specific object group 
shall result in a list of the objects within the group or present a text 
search mechanism to allow location of an object within the group. For 
example, selection of the rules object group would present a list of the 
rules or a text search mechanism for locating specific terms or phrases 
within the rules.
    (e) Basic ocean freight. The minimum rate display for tariffs shall 
consist of the basic ocean freight rate and a list of all assessorial 
charges that apply for the retriever-entered shipment parameters. If 
other rules or charges may be applicable to a shipment under certain 
circumstances, the tariff shall so indicate.
    (f) Displays. All displays of individual tariff matter shall include 
the publication date, effective date, amendment code (as contained in 
appendix A of this part) and object name or number. When applicable, a 
thru date or expiration date shall also be displayed. Use of ``S'' as an 
amendment code shall be accompanied by a Commission issued special use 
number.



Sec. 520.7  Tariff limitations.

    (a) General. Tariffs published pursuant to this part shall:
    (1) Be clear and definite;
    (2) Use English as the primary textual language;
    (3) Not contain cross-references to any other rate tariffs, except:
    (i) A tariff of general applicability maintained by that same 
carrier or conference,
    (ii) The individual tariffs of members of a non-conference agreement 
to enter into time/volume rates may cross-reference the tariffs of other 
members for purposes of said time/volume rates, and
    (iii) Multiple common tariffs of a conference agreement to enter 
into time/volume rates may cross-reference their own multiple conference 
tariffs for purposes of said time/volume rates; and
    (4) Not duplicate or conflict with any other tariff publication.
    (b) Notice of cancellation. Carriers and conferences shall inform 
BTA, in writing, whenever a tariff is canceled and the effective date of 
that cancellation.
    (c) Applicable rates. The rates, charges, and rules applicable to 
any given shipment shall be those 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.
    (d) Minimum quantity rates. When two or more TRIs are stated 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

[[Page 169]]

charges computed for a larger quantity, if the TRI 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 TRI 
if the weight or measurement declared for rating purposes is increased 
to the minimum level.
    (e) Green salted hides. The shipping weight for 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. The shipper must furnish the carrier a weight certificate 
or dock receipt from an inland common carrier for each shipment at or 
before the time the shipment is tendered for ocean transportation.
    (f) Conference situations. (1) New members of a conference shall 
cancel any independent tariffs applicable to the trades served by the 
conference, within ninety (90) days of membership in the conference. 
Individual conference members may publish their own separate open rate 
tariffs. Admission to the conference may be effective on the date notice 
is published in the conference tariff.
    (2) New conference agreements have ninety (90) days within which to 
publish a new tariff.
    (g) Overcharge claims. (1) No tariff may limit the filing of 
overcharge claims with a common carrier to a period of less than three 
(3) years from the accrual of the cause of action.
    (2) The acceptance of any overcharge claim may not be conditioned 
upon the payment of a fee or charge.
    (3) 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.
    (h) Returned cargo. When a carrier or conference offers the return 
shipment of refused, damaged or rejected shipments, or exhibits at trade 
fairs, shows or expositions, to port of origin at the TRI assessed on 
the original movement, and such TRI is lower than the prevailing TRI:
    (1) The return shipment must occur within one (1) year;
    (2) The return movement must be made over the line of the same 
common carrier performing the original movement, except in the use of a 
conference tariff, where return may be made by any member line when the 
original shipment was carried under the conference tariff; and
    (3) A copy of the original bill of lading showing the rate assessed 
must be presented to the return common carrier.

[64 FR 11225, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002]



Sec. 520.8  Effective dates.

    (a) General. (1) No new or initial rate, charge, or change in an 
existing rate, that results in an increased cost to a shipper may become 
effective earlier than thirty (30) calendar days after publication.
    (2) An amendment which deletes a specific commodity and applicable 
rate from a tariff, thereby resulting in a higher ``cargo n.o.s.'' or 
similar general cargo rate, is a rate increase requiring a 30-day notice 
period.
    (3) Rates for the transportation of cargo for the U.S. Department of 
Defense may be effective upon publication.
    (4) Changes in rates, charges, rules, regulations or other tariff 
provisions resulting in a decrease in cost to a shipper may become 
effective upon publication.
    (b) Amendments. The following amendments may take effect upon 
publication:
    (1) Those resulting in no change in cost to a shipper;
    (2) The canceling of a tariff due to cessation of all service by the 
carrier between the ports or points covered by the tariff;
    (3) The addition of a port or point to a previously existing origin 
or destination grouping; or
    (4) Changes in charges for terminal services, canal tolls, 
additional charges, or other provisions not under the control of the 
common carriers or conferences, which merely acts as a collection agent 
for such charges and the agency making such changes does so without 
notifying the tariff owner.

[[Page 170]]

    (c) Controlled carriers. Published rates by or for controlled 
carriers shall be governed by the procedures set forth in part 565 of 
this chapter.



Sec. 520.9  Access to tariffs.

    (a) Methods to access. Carriers and conferences shall provide access 
to their published tariffs, via a personal computer (``PC''), by:
    (1) Dial-up connection via public switched telephone networks 
(``PSTN''); or
    (2) The Internet (Web) by:
    (i) Web browser; or
    (ii) Telnet session.
    (b) Dial-up connection via PSTN. (1) This connection option requires 
that tariffs provide:
    (i) A minimum of a 14.4Kbps modem capable of receiving incoming 
calls;
    (ii) Smart terminal capability for VT-100 terminal or terminal 
emulation access; and
    (iii) Telephone line quality for data transmission.
    (2) The modem may be included in a collection (bank) of modems as 
long as all modems in the bank meet the minimum speed.
    (c) Internet connection. (1) This connection option requires that 
systems provide:
    (i) A universal resource locator (``URL'') Internet address (e.g., 
http://www.tariffsrus.com or http://1.2.3.4); and/or
    (ii) A URL Internet address (e.g., telnet://tariffsrus or telnet://
1.2.3.4), for Telnet session access over the Internet.
    (2) Carriers or conferences shall ensure that their Internet service 
providers provide static Internet addresses.
    (d) Commission access. Commission telecommunications access to 
systems must include connectivity via a dial-up connection over PSTNs or 
a connection over the Internet. Connectivity will be provided at the 
expense of the publishers. Any recurring connection fees, hardware 
rental fees, usage fees or any other charges associated with the 
availability of the system are the responsibility of the publisher. The 
Commission shall only be responsible for the long-haul charges for PSTN 
calls to a tariff initiated by the FMC.
    (e) Limitations. (1) Tariffs must be made available to any person 
without time, quantity, or other limitations.
    (2) Carriers are not required to provide remote terminals for access 
under this section.
    (3) Carriers and conferences may assess a reasonable fee for access 
to their tariff publication systems and such fees shall not be 
discriminatory.
    (4) Tariff publication systems shall provide user instructions for 
access to tariff information.
    (f) Federal agencies. Carriers and conferences may not assess any 
access charges against the Commission or any other Federal agency.
    (g) User identifications. Carriers and conferences shall provide the 
Commission with the documentation it requires and the number of user 
identifications and passwords it requests to facilitate the Commission's 
access to their systems, if they require such identifications and 
passwords.



Sec. 520.10  Integrity of tariffs.

    (a) Historical data. Carriers and conferences shall maintain the 
data that appeared in their tariff publication systems for a period of 
five (5) years from the date such information is superseded, canceled or 
withdrawn, and shall provide on-line access to such data for two (2) 
years. After two (2) years, such data may be retained on-line or in 
other electronic form, and shall be made available to any person or the 
Commission upon request in a reasonable period of time. Carriers and 
conferences may charge a reasonable fee for the provision of historical 
data, not to exceed the fees for obtaining such data on-line. No fee 
shall apply to federal agencies.
    (b) Access date capability. Each tariff shall provide the capability 
for a retriever to enter an access date, i.e., a specific date for the 
retrieval of tariff data, so that only data in effect on that date would 
be directly retrievable. This capability would also align any rate 
adjustments and assessorial charges that were effective on the access 
date for rate calculations and designation of applicable surcharges. The 
access date shall also apply to the alignment of tariff objects for any 
governing tariffs.

[[Page 171]]

    (c) Periodic review. The Commission will periodically review 
published tariff systems and will prohibit the use of any system that 
fails to meet the requirements of this part.
    (d) Access to systems. Carriers and conferences shall provide the 
Commission reasonable access to their automated systems and records in 
order to conduct reviews.



Sec. 520.11  Non-vessel-operating common carriers.

    (a) Financial responsibility. An ocean transportation intermediary 
that operates as a non-vessel-operating common carrier shall state in 
its tariff publication:
    (1) That it has furnished the Commission proof of its financial 
responsibility in the manner and amount required by part 515 of this 
chapter;
    (2) The manner of its financial responsibility;
    (3) Whether it is relying on coverage provided by a group or 
association to which it is a member;
    (4) The name and address of the surety company, insurance company or 
guarantor issuing the bond, insurance policy, or guaranty;
    (5) The number of the bond, insurance policy or guaranty; and
    (6) Where applicable, the name and address of the group or 
association providing coverage.
    (b) Agent for service. Every NVOCC not in the United States shall 
state the name and address of the person in the United States designated 
under part 515 of this chapter as its legal agent for service of 
process, including subpoenas. The NVOCC shall further state that in any 
instance in which the designated legal agent cannot be served because of 
death, disability or unavailability, the Commission's Secretary will be 
deemed to be its legal agent for service of process.
    (c) Co-Loading. (1) NVOCCs shall address the following situations in 
their tariffs:
    (i) If an NVOCC does not tender cargo for co-loading, this shall be 
noted in its tariff.
    (ii) 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 the tariff.
    (iii) If two NVOCCs enter into a co-loading arrangement which 
results in a shipper-to-carrier relationship, the tendering NVOCC shall 
describe 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.
    (2) Documentation requirements. An NVOCC which tenders 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.
    (3) Co-loading rates. No NVOCC may offer special co-loading rates 
for the exclusive use of other NVOCCs. If cargo 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.



Sec. 520.12  Time/Volume rates.

    (a) General. Common carriers or conferences may publish in their 
tariffs rates which are conditioned upon the receipt of a specified 
aggregate volume of cargo or aggregate freight revenue over a specified 
period of time.
    (b) Publication requirements. (1) All rates, charges, 
classifications rules and practices concerning time/volume rates must be 
set forth in the carrier's or conference's tariff.
    (2) The tariff shall identify:
    (i) The shipment records that will be maintained to support the 
rate; and
    (ii) The method to be used by shippers giving notice of their 
intention to use a time/volume rate prior to tendering any shipments 
under the time/volume arrangement.
    (c) Accepted rates. Once a time/volume rate is accepted by one 
shipper, it shall remain in effect for the time specified, without 
amendment. If no shipper

[[Page 172]]

gives notice within 30 days of publication, the time/volume rate may be 
canceled.
    (d) Records. Shipper notices and shipment records supporting a time/
volume rate shall be maintained by the offering carrier or conference 
for at least 5 years after a shipper's use of a time/volume rate has 
ended.
    (e) Liquidated damages. Time/volume rates may not impose or attempt 
to impose liquidated damages on any shipper that moves cargo under the 
rate. Carriers and agreements shall rerate cargo moved at the applicable 
tariff rate, if a shipper fails to meet the requirements of the time/
volume offer.



Sec. 520.13  Exemptions and exceptions.

    (a) General. Exemptions from the requirements of this part are 
governed by section 16 of the Act and Rule 67 of the Commission's Rules 
of Practice and Procedure, Sec. 502.67 of this chapter.
    (b) Services. The following services are exempt from the 
requirements of this part:
    (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.
    (2) Controlled carriers in foreign commerce. A controlled common 
carrier shall be exempt from the provisions of this part exclusively 
applicable to controlled carriers 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; 
or
    (ii) The controlled carrier operates in a trade served exclusively 
by controlled carriers.
    (3) 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 publication requirements of 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 
Commission, and the only one furnishing the particular circumscribed 
barge service in question as of January 2, 1975.
    (c) Cargo types. The following cargo types are not subject to the 
requirements of this part:
    (1) Bulk cargo, forest products, etc. This part does not apply to 
bulk cargo, forest products, recycled metal scrap, new assembled motor 
vehicles, waste paper and paper waste. Carriers or conferences which 
voluntarily publish tariff provisions covering otherwise exempt 
transportation thereby subject themselves to the requirements of this 
part, including the requirement to adhere to the tariff provisions.
    (2) Mail in foreign commerce. Transportation of mail between the 
United States and foreign countries.
    (3) Used military household goods. Transportation of used military 
household goods and personal effects by ocean transportation 
intermediaries.
    (4) Department of Defense cargo. Transportation of U.S. Department 
of Defense cargo moving in foreign commerce under terms and conditions 
negotiated and approved by the Military Transportation Management 
Command (``MTMC'') and published in a universal service contract. An 
exact copy of the universal service contract, 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 household goods and personal effects by ocean 
transportation intermediaries shipped for federal civilian executive 
agencies under the International Household Goods Program administered by 
the General Services Administration.

[[Page 173]]

    (d) Services involving foreign countries. The following 
transportation services involving foreign countries are not subject to 
the requirements of this part:
    (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 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 rate 
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 Surface Transportation 
Board 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 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 
Act.
    (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 Surface Transportation 
Board and/or the Canadian Transport Commission; and
    (B) Certified copies of the rate divisions and 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.



Sec. 520.14  Special permission.

    (a) General. Section 8(d) of the Act authorizes 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,

[[Page 174]]

on less than the statutory notice. Section 9(c) of the Act authorizes 
the Commission to permit a controlled 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.
    (b) Clerical errors. Typographical and/or clerical errors constitute 
good cause for the exercise of special permission authority but every 
application based 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 publishing the defective tariff material.
    (c) Application. (1) Applications 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 for publishing. Every such application 
shall be submitted to the Bureau of Trade Analysis and be accompanied by 
a filing fee of $195.
    (2) Applications for special permission shall be made only by 
letter, except that in emergency situations, application may be made by 
telephone or facsimile if the communication is promptly followed by a 
letter and the filing fee.
    (3) Applications for special permission shall contain the following 
information:
    (i) Organization name, number and trade name of the conference or 
carrier;
    (ii) Tariff number and title; and
    (iii) The rate, commodity, or rules 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. The authority granted by the Commission shall be 
used in its entirety, including the prompt publishing of the material 
for which permission was requested. Applicants shall use the special 
case number assigned by the Commission with the symbol ``S''.

[64 FR 11225, Mar. 8, 1999, as amended at 67 FR 39860, June 11, 2002; 70 
FR 10330, Mar. 3, 2005]



Sec. 520.91  OMB control number assigned pursuant to the Paperwork Reduction Act.

    The Commission has received OMB approval for this collection of 
information pursuant to the Paperwork Reduction Act of 1995, as amended. 
In accordance with the Act, agencies are required to display a currently 
valid control number. The valid control number for this collection of 
information is 3072-0064.

         Appendix A to Part 520--Standard Terminology and Codes

                   I--Publishing/Amendment Type Codes
------------------------------------------------------------------------
             Code                              Definition
------------------------------------------------------------------------
A............................  Increase.
C............................  Change resulting in neither increase nor
                                decrease in rate or charges.
E............................  Expiration (also use ``A'' if the
                                deletion results in the application of a
                                higher ``cargo, n.o.s.'' or similar
                                rate).
I............................  New or initial matter.
K............................  Rate or change filed by a controlled
                                common carrier member of a conference
                                under independent action.
M............................  Transportation of U.S. Department of
                                Defense cargo by American-flag common
                                carriers.
P............................  Addition of a port or point.
R............................  Reduction.
S............................  Special Case matter filed pursuant to
                                Special Permission, Special Docket or
                                other Commission direction, including
                                filing of tariff data after suspension,
                                such as for controlled carriers.
                                Requires ``Special Case Number.''
T............................  Terminal Rates, charges or provisions or
                                canal tolls over which the carrier has
                                no control.
W............................  Withdrawal of an erroneous publication on
                                the same publication date.
X............................  Exemption for controlled carrier data in
                                trades served exclusively by controlled
                                carriers or by controlled carriers of
                                states receiving most-favored-nation
                                treatment.
------------------------------------------------------------------------


                             II--Unit Codes
A. Weight Units:
  Kilograms..................................  KGS
  1000 Kgs (Metric Ton)......................  KT
  Pounds.....................................  LBS
  Long Ton (2240 LBS)........................  LT
  Short Ton (2000 LBS).......................  ST
B. Volume Units:
  Cubic meter................................  CBM
  Cubic feet.................................  CFT
C. Length Units:
  Centimeters................................  CM
  Feet.......................................  FT
  Inches.....................................  IN

[[Page 175]]

 
  Meters.....................................  M
D. Measure Board Feet:
  Thousand Board Feet........................  MBF
E. Distance Units:
  Kilometers.................................  KM
  Miles......................................  MI
F. Rate Basis:
  Ad Valorem.................................  AV
  Each.......................................  EA
  Lump Sum...................................  LS
  Measure....................................  M
  Thousand Board Feet........................  MBF
  Per Container..............................  PC
  Weight.....................................  W
  Weight/Measure.............................  WM
G. Container Size Codes:
  Not Applicable.............................  N/A
  Less Than Load.............................  LTL
  10 FT Any Height...........................  10X
  20 FT 8[foot]6..................  20
  20 FT 9[foot]0 High Cube........  20A
  20 FT 9[foot]6 High Cube........  20B
  20 FT 8[foot]0..................  20S
  20 FT Any Height...........................  20X
  24 FT 8[foot]6..................  24
  24 FT 9[foot]0 High Cube........  24A
  24 FT 9[foot]6 High Cube........  24B
  24 FT 8[foot]0..................  24S
  24 FT Any Height...........................  24X
  35 FT 8[foot]6..................  35
  35 FT 9[foot]0 High Cube........  35A
  35 FT 9[foot]6 High Cube........  35B
  35 FT 8[foot]0..................  35S
  35 FT Any Height...........................  35X
  40 FT 8[foot]6..................  40
  40 FT 9[foot]0 High Cube........  40A
  40 FT 9[foot]6 High Cube........  40B
  40 FT 8[foot]0..................  40S
  40 FT Any Height...........................  40X
  42 FT 8[foot]6..................  42
  42 FT 9[foot]0 High Cube........  42A
  42 FT 9[foot]6 High Cube........  42B
  42 FT 8[foot]0..................  42S
  42 FT Any Height...........................  42X
  43 FT 8[foot]6..................  43
  43 FT 9[foot]0 High Cube........  43A
  43 FT 9[foot]6 High Cube........  43B
  43 FT 8[foot]0..................  43S
  43 FT Any Height...........................  43X
  45 FT 8[foot]6..................  45
  45 FT 9[foot]0 High Cube........  45A
  45 FT 9[foot]6 High Cube........  45B
  45 FT 8[foot]0..................  45S
  45 FT Any Height...........................  45X
  48 FT 8[foot]6..................  48
  48 FT 9[foot]0 High Cube........  48A
  48 FT 9[foot]6 High Cube........  48B
  48 FT 8[foot]0..................  48S
  48 FT Any Height...........................  48X
  53 FT 8[foot]6..................  53
  53 FT 9[foot]0 High Cube........  53A
  53 FT 9[foot]6 High Cube........  53B
  53 FT 8[foot]0..................  53S
  53 FT Any Height...........................  53X
H. Container Type Codes:
  Not Applicable.............................  N/A
  Atmosphere Control.........................  AC
  Collapsible Flatrack.......................  CF
  Drop Frame.................................  DF
  Flat Bed...................................  FB
  Flat Rack..................................  FR
  Garment Container..........................  GC
  Half-Height................................  HH
  Hardtop....................................  HT
  Insulated..................................  IN
  Open Top...................................  OT
  Dry........................................  PC
  Platform...................................  PL
  Reefer.....................................  RE
  Tank.......................................  TC
  Top Loader.................................  TL
  Trailer....................................  TR
  Vehicle Racks..............................  VR
I. Container Temperature Codes:
  Not Appl/Operating.........................  N/A
  Artificial Atmo Ctrl.......................  AC
  Chilled....................................  CLD
  Frozen.....................................  FRZ
  Heated.....................................  HTD
  Refrigerated...............................  RE
  Ventilated.................................  VEN
J. Packaging Codes:
  Bag........................................  BAG
  Bale.......................................  BAL
  Bar........................................  BAR
  Barrel.....................................  BBL
  Bundle.....................................  BDL
  Beam.......................................  BEM
  Bing Chest.................................  BIC
  Bin........................................  BIN
  Bulk.......................................  BLK
  Bobbin.....................................  BOB
  Box........................................  BOX
  Barge......................................  BRG
  Basket/Hamper..............................  BSK
  Bushel.....................................  BUS
  Box, with Inner Cntn.......................  BXI
  Bucket.....................................  BXT
  Cabinet....................................  CAB
  Cage.......................................  CAG
  Can........................................  CAN
  Carrier....................................  CAR
  Case.......................................  CAS
  Cntnrs of Bulk Cargo.......................  CBC
  Carboy.....................................  CBY
  Can Case...................................  CCS
  Cheeses....................................  CHE
  Core.......................................  COR
  Cradle.....................................  CRD
  Crate......................................  CRT
  Cask.......................................  CSK
  Carton.....................................  CTN
  Cylinder...................................  CYL
  Dry Bulk...................................  DBK
  Double-length Rack.........................  DRK
  Drum.......................................  DRM
  Double-length Skid.........................  DSK
  Double-length..............................  DTB
  Firkin.....................................  FIR
  Flo-Bin....................................  FLO
  Frame......................................  FRM
  Flask......................................  FSK
  Forward Reel...............................  FWR
  Garment on Hanger..........................  GOH
  Heads of Beef..............................  HED
  Hogshead...................................  HGH
  Hopper Car.................................  HPC
  Hopper Truck...............................  HPT
  On Hanger/Rack in bx.......................  HRB
  Half-Standard Rack.........................  HRK
  Half-Stand. Tote Bin.......................  HTB
  Jar........................................  JAR
  Keg........................................  KEG
  Kit........................................  KIT
  Knockdown Rack.............................  KRK
  Knockdown Wood Crates......................  KWC
  Knockdown Tote Bin.........................  KTB
  Liquid Bulk................................  LBK

[[Page 176]]

 
  Lifts......................................  LIF
  Log........................................  LOG
  Loose......................................  LSE
  Lug........................................  LUG
  Lift Van...................................  LVN
  Multi-roll Pak.............................  MRP
  Noil.......................................  NOL
  Nested.....................................  NST
  Pail.......................................  PAL
  Packed--NOS................................  PCK
  Pieces.....................................  PCS
  Pirns......................................  PIR
  Package....................................  PKG
  Platform...................................  PLF
  Pipe Line..................................  PLN
  Pallet.....................................  PLT
  Private Vehicle............................  POV
  Pipe Rack..................................  PRK
  Quarters of Beef...........................  QTR
  Rail (semiconductor).......................  RAL
  Rack.......................................  RCK
  Reel.......................................  REL
  Roll.......................................  ROL
  Reverse Reel...............................  RVR
  Sack.......................................  SAK
  Shook......................................  SHK
  Sides of Beef..............................  SID
  Skid.......................................  SKD
  Skid, Elev, Lift Trk.......................  SKE
  Sleeve.....................................  SLV
  Spin Cylinders.............................  SPI
  Spool......................................  SPL
  Tube.......................................  TBE
  Tote Bin...................................  TBN
  Tank Car Rail..............................  TKR
  Tank Truck.................................  TKT
  Intermdl Trlr/Cntnr........................  TLD
  Tank.......................................  TNK
  Tierce.....................................  TRC
  Trunk and Chest............................  TRK
  Tray.......................................  TRY
  Trunk, Salesmen Samp.......................  TSS
  Tub........................................  TUB
  Unpacked...................................  UNP
  Unit.......................................  UNT
  Vehicles...................................  VEH
  Van Pack...................................  VPK
  On Own Wheels..............................  WHE
  Wheeled Carrier............................  WLC
  Wood Crates................................  WC
  Wrapped....................................  WRP
  Not Applicable.............................  N/A
K. Shipment Stowage Location Codes:
  Not Applicable.............................  N/A
  On Deck....................................  OD
  Bottom Stowage.............................  BS
L. Hazard Codes:
  Not Applicable.............................  N/A
  IMD Stow Category A........................  A
  IMD Stow Category B........................  B
  IMD Stow Category C........................  C
  IMD Stow Category D........................  D
  IMD Stow Category E........................  E
  Hazardous..................................  HAZ
  Non-Hazardous..............................  NHZ
M. Stuffing/Stripping Modes:
  Not Applicable.............................  N/A
  Mechanical.................................  MECH
  Hand Loading...............................  HAND
N. Inland Transportation Modes:
  Not Applicable.............................  N/A
  Motor......................................  M
  Rail.......................................  R
  Barge......................................  B
  Motor/Rail.................................  MR
  Rail/Motor.................................  RM
  Motor/Barge................................  MB
  Barge/Motor................................  BM
  Rail/Barge.................................  RB
  Barge/Rail.................................  BR
O. Shipment Service Types:
  Barge......................................  B
  Door.......................................  D
  House......................................  H
  Motor......................................  M
  Ocean Port.................................  O
  Pier.......................................  P
  Rail Yard..................................  R
  Container Station..........................  S
  Terminal...................................  T
  Container Yard.............................  Y
  Rail Siding................................  U
  Team Tracks................................  X
P. Freight Forwarder/Broker Type Codes:
  Not Applicable.............................  N/A
  Freight Forwarder..........................  FF
  Customs House Broker.......................  CB
  Other......................................  OTH
Q. Tariff Type Codes:
   Bill of Lading Tariff.....................  BL
  Equipment Interchange Agreement Tariff.....  EI
  Essential Terms Publication................  ET
  Foreign Commodity Tariff...................  FC
  Foreign Rules Tariff.......................  FR
  Terminal Tariff............................  TM
  Service Contracts..........................  SC
------------------------------------------------------------------------



PART 525_MARINE TERMINAL OPERATOR SCHEDULES--Table of Contents




Sec.
525.1 Purpose and scope.
525.2 Terminal schedules.
525.3 Availability of marine terminal operator schedules.
525.4 OMB Control number assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 46 U.S.C. app. 1702, 1707, 1709, as amended by Pub. L. 
105-258, 112 Stat. 1902, and Pub. L. 105-383, 112 Stat. 3411.

    Source: 64 FR 9283, Feb. 25, 1999, unless otherwise noted.



Sec. 525.1  Purpose and scope.

    (a) Purpose. This part implements the Shipping Act of 1984, as 
amended by the Ocean Shipping Reform Act of 1998 and the Coast Guard 
Authorization Act of 1998. The form and manner requirements of this part 
are necessary to enable the Commission to meet its responsibilities with 
regard to identifying and preventing unreasonable preference or 
prejudice and unjust discrimination pursuant to section 10 of the Act.
    (b) Scope. This part sets forth the regulations for the publication 
of terminal

[[Page 177]]

schedules by marine terminal operators. Information made available under 
this part may be used to determine marine terminal operators' compliance 
with shipping statutes and regulations.
    (c) Definitions. The following definitions apply to the regulations 
of this part:
    (1) Act means the Shipping Act of 1984, as amended by the Ocean 
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of 
1998.
    (2) Bulk cargo means cargo that is loaded and carried in bulk 
without mark or count, in a loose unpackaged form, having homogenous 
characteristics. Bulk cargo loaded into intermodal equipment, except 
LASH or Seabee barges, is subject to mark and count and is, therefore, 
subject to the requirements of this part.
    (3) 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.
    (4) Commission means the Federal Maritime Commission.
    (5) Dockage means the charge assessed against a vessel for berthing 
at a wharf, pier, bulkhead structure, or bank or for mooring to a vessel 
so berthed.
    (6) Effective date means the date a schedule or an element of a 
schedule becomes effective. Where there are multiple publications on the 
same day, the last schedule or element of a schedule published with the 
same effective date is the one effective for that day.
    (7) Expiration date means the last day, after which the entire 
schedule or a single element of the schedule, is no longer in effect.
    (8) Forest products means forest products 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 and paper board in rolls or in pallet 
or skid-sized sheets, liquid or granular by-products derived from 
pulping and papermaking, and engineering wood products.
    (9) Free time means the period specified in the terminal schedule 
during which cargo may occupy space assigned to it on terminal property, 
including off-dock facilities, 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.
    (10) 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.
    (11) Heavy lift means the service of providing heavy lift cranes and 
equipment for lifting cargo.
    (12) 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.
    (13) Marine terminal operator means a person engaged in the United 
States or a commonwealth, territory, or possession thereof, in the 
business of furnishing wharfage, dock, warehouse or other terminal 
facilities in connection with a common carrier, or in connection with a 
common carrier and a water carrier subject to Subchapter II of Chapter 
135 of Title 49, United States Code. A marine terminal operator 
includes, but is 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. For the purposes of this part, marine terminal 
operator includes conferences of marine terminal operators.
    (14) Organization name means an entity's name on file with the 
Commission and for which the Commission assigns an organizational 
number.
    (15) Person includes individuals, firms, partnerships, associations, 
companies, corporations, joint stock associations, trustees, receivers, 
agents, assignees and personal representatives.
    (16) Rate means a price quoted in a schedule for providing a 
specified level of marine terminal service or facility for a stated 
cargo quantity, on and after a stated effective date or within a defined 
time frame.

[[Page 178]]

    (17) Schedule means a publication containing the actual rates, 
charges, classifications, regulations and practices of a marine terminal 
operator. The term ``practices'' refers to those usages, customs or 
modes of operation which in any way affect, determine or change the 
rates, charges or services provided by a marine terminal operator.
    (18) 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, 
cranes, 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.
    (19) 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 
definitions of terminal services set forth in this section shall be set 
forth in terminal schedules, 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 the terminal schedule.
    (20) 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.
    (21) Usage means the use of a 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.
    (22) 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.
    (23) 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 a wharf. Wharfage is solely the charge 
for use of a wharf and does not include charges for any other service.



Sec. 525.2  Terminal schedules.

    (a) Marine terminal operator schedules. A marine terminal operator, 
at its discretion, may make available to the public, subject to section 
10(d) of the Act, a schedule of its rates, regulations, and practices.
    (1) Limitations of liability. Any limitations of liability for cargo 
loss or damage pertaining to receiving, delivering, handling, or storing 
property at the marine terminal contained in a terminal schedule must be 
consistent with domestic law and international conventions and 
agreements adopted by the United States; such terminal schedules cannot 
contain provisions that exculpate or 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.
    (2) Enforcement of terminal schedules. Any schedule that is made 
available to the public by the marine terminal operator shall be 
enforceable by an appropriate court as an implied contract between the 
marine terminal operator and the party receiving the services rendered 
by the marine terminal operator, without proof that such party has 
actual knowledge of the provisions of the applicable terminal schedule.
    (3) Contracts for terminal services. If the marine terminal operator 
has an actual contract with a party covering the services rendered by 
the marine terminal operator to that party, an existing terminal 
schedule covering those same services shall not be enforceable as an 
implied contract.
    (b) Cargo types not subject to this part. (1) Except as set forth in 
paragraph (b)(2) of this section, this part does not

[[Page 179]]

apply to bulk cargo, forest products, recycled metal scrap, new 
assembled motor vehicles, waste paper and paper waste in terminal 
schedules.
    (2) Marine terminal operators which voluntarily make available 
terminal schedules covering any of the commodities identified in 
paragraph (b)(1) of this section thereby subject their services with 
respect to those commodities to the requirements of this part.
    (c) Marine terminal operator agreements. The regulations relating to 
agreements to which a marine terminal operator is a party are located at 
part 535 of this chapter.



Sec. 525.3  Availability of marine terminal operator schedules.

    (a) Availability of terminal schedules--(1) Availability to the 
Commission. A complete and current set of terminal schedules used by a 
marine terminal operator, or to which it is a party, shall be maintained 
in its office(s) for a period of five (5) years, whether or not made 
available to the public, and shall promptly be made available to the 
Commission upon request.
    (2) Availability to the public. Any terminal schedule that is made 
available to the public shall be available during normal business hours 
and in electronic form. The public may be assessed a reasonable 
nondiscriminatory charge for access to the terminal schedules; no charge 
will be assessed against the Commission.
    (b) Access to electronically published schedules. Marine terminal 
operators shall provide access to their terminal schedules via a 
personal computer (PC) by:
    (1) Dial-up connection via public switched telephone networks 
(PSTN); or
    (2) The Internet (Web) by:
    (i) Web browser; or
    (ii) Telnet session.
    (c) Dial-up connection via PSTN. (1) This connection option requires 
that terminal schedules provide:
    (i) A minimum of a 14.4Kbps modem capable of receiving incoming 
calls,
    (ii) Smart terminal capability for VT-100 terminal or terminal 
emulation access, and
    (iii) Telephone line(s) quality for data transmission.
    (2) The modem may be included in a collection (bank) of modems as 
long as all modems in the bank meet the minimum speed. Smart terminal 
emulation provides for features such as bold, blinking, underlining and 
positioning to specific locations on the display screen.
    (d) Internet connection. (1) This connection option requires that 
systems provide:
    (i) A universal resource locator (URL) Internet address (e.g., 
http://www.tariffsrus.com or http://1.2.3.4), and/or
    (ii) A universal resource locator (URL) Internet address (e.g., 
telnet://tariffsrus or telnet://1.2.3.4), for Telnet session access over 
the Internet.
    (2) Marine terminal operators shall ensure that their Internet 
service providers shall provide static Internet addresses.
    (e) Commission access. Commission telecommunications access to 
systems must include connectivity via a dial-up connection over public 
switched telephone networks (PSTN) or a connection over the Internet. 
Connectivity will be provided at the expense of the publishers. Any 
recurring connection fees, hardware rental fees, usage fees or any other 
charges associated with the availability of the system are the 
responsibility of the publisher. The Commission shall only be 
responsible for the long-haul charges for PSTN calls to a terminal 
schedule initiated by the Commission.
    (f) Notification. Each marine terminal operator shall notify the 
Commission's Bureau of Tariffs, Certification and Licensing (``BTCL''), 
prior to the commencement of marine terminal operations, of its 
organization name, organization number, home office address, name and 
telephone number of firm's representative, the location of its terminal 
schedule(s), and the publisher, if any, used to maintain its terminal 
schedule, by electronically submitting Form FMC-1 via the Commission's 
website at www.fmc.gov. Any changes to the above information shall be 
immediately transmitted to BTCL. The Commission will publish a list on 
its website of the location of any terminal schedule made available to 
the public.

[[Page 180]]

    (g) Form and manner. Each terminal schedule made available by a 
marine terminal operator shall contain an individual identification 
number, effective date, expiration date, if any, and the complete 
terminal schedule in full text and/or data format showing all its rates, 
charges, and regulations relating to or connected with the receiving, 
handling, storing, and/or delivering of property at its terminal 
facilities.



Sec. 525.4  OMB control number assigned pursuant to the Paperwork Reduction Act.

    The Commission has received Office of Management and Budget approval 
for this collection of information pursuant to the Paperwork Reduction 
Act of 1995, as amended. In accordance with that Act, agencies are 
required to display a currently valid control number. In this regard, 
the valid control number for this collection of information is 3072-
0061.



PART 530_SERVICE CONTRACTS--Table of Contents




                      Subpart A_General Provisions

Sec.
530.1 Purpose.
530.2 Scope and applicability.
530.3 Definitions.
530.4 Confidentiality.
530.5 Duty to file.
530.6 Certification of shipper status.
530.7 Duty to labor organizations.

                      Subpart B_Filing Requirements

530.8 Service contracts.
530.9 Notices.
530.10 Amendment, correction, cancellation, and electronic transmission 
          errors.
530.11 [Reserved]

                Subpart C_Publication of Essential Terms

530.12 Publication.

                 Subpart D_Exceptions and Implementation

530.13 Exceptions and exemptions.
530.14 Implementation.

                    Subpart E_Recordkeeping and Audit

530.15 Recordkeeping and audit.
530.91 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

Appendix A to Part 530--Instructions for the Filing of Service Contracts
Exhibit 1 to Part 530--Service Contract Registration [Form FMC-83]

    Authority: 5 U.S.C. 553; 46 U.S.C. App. 1704, 1705, 1707, 1716.

    Source: 64 FR 11206, Mar. 8, 1999, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 530.1  Purpose.

    The purpose of this part is to facilitate the filing of service 
contracts and the publication of certain essential terms of those 
service contracts as required by section 8(c) of the Shipping Act of 
1984 (``Act''). This part enables the Commission to review service 
contracts to ensure that these contracts and the parties to them comport 
with the requirements of the Act. This part also implements electronic 
filing provisions for service contracts to facilitate compliance and 
minimize the filing burdens on the oceanborne commerce of the United 
States.



Sec. 530.2  Scope and applicability.

    An individual ocean common carrier or an agreement between or among 
ocean common carriers may enter into a service contract with one or more 
shippers subject to the requirements of the Act.



Sec. 530.3  Definitions.

    When used in this part:
    (a) Act means the Shipping Act of 1984 as amended by the Ocean 
Shipping Reform Act of 1998.
    (b) Agreement means an understanding, arrangement, or association 
(written or oral) and any modification or cancellation thereof which has 
been filed and effective under part 535 of this chapter with the 
Commission. The term does not include a maritime labor agreement.
    (c) Authorized person means a carrier or a duly appointed agent who 
is authorized to file service contracts on behalf of the carrier party 
to a service contract and to publish the corresponding statement of 
essential terms and is registered by the Commission to file under Sec. 
530.5(d) and appendix A to this part.

[[Page 181]]

    (d) BTCL means the Commission's Bureau of Tariffs, Certification and 
Licensing or its successor bureau.
    (e) Commission means the Federal Maritime Commission.
    (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, except that the term does 
not include a common carrier engaged in ocean transportation by ferry 
boat, ocean tramp, or chemical parcel tanker, or by a vessel when 
primarily engaged in the carriage of perishable agricultural 
commodities:
    (i) If the common carrier and the owner of those commodities are 
wholly owned, directly or indirectly, by a person primarily engaged in 
the marketing and distribution of those commodities and
    (ii) Only with respect to those commodities.
    (g) Conference means an agreement between or among two or more ocean 
common carriers which provides for 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. The term does not include joint service, pooling, 
sailing, space charter, or transshipment agreements.
    (h) Controlled carrier means an ocean common carrier that is, or 
whose operating assets are, directly or indirectly owned or controlled 
by a government. Ownership or control by a government shall be deemed to 
exist with respect to any ocean common carrier if:
    (1) A majority portion of the interest in the 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 carrier.
    (i) Effective date means the date upon which a service contract or 
amendment is scheduled to go into effect by the parties to the contract. 
A service contract or amendment becomes effective at 12:01 a.m. Eastern 
Standard Time on the beginning of the effective date. The effective date 
cannot be prior to the filing date of the service contract or amendment 
with the Commission.
    (j) Expiration date means the last day after which the entire 
service contract is no longer in effect.
    (k) File or filing (of service contracts or amendments thereto) 
means the use of the Commission's electronic filing system for receipt 
of a service contract or an amendment thereto by the Commission, 
consistent with the method set forth in appendix A of this part, and the 
recording of its receipt by the Commission.
    (l) Labor agreement means a collective-bargaining agreement between 
an employer subject to the Act, or group of such employers, and a labor 
organization or an agreement preparatory to such a collective-bargaining 
agreement among members of a multi-employer bargaining group, or an 
agreement specifically implementing provisions of such a collective-
bargaining agreement or providing for the formation, financing, or 
administration of a multi-employer bargaining group, but the term does 
not include an assessment agreement.
    (m) Motor vehicle means a wheeled vehicle whose primary purpose is 
ordinarily the non-commercial transportation of passengers, including an 
automobile, pickup truck, minivan or sport utility vehicle.
    (n) Ocean common carrier means a common carrier that operates, for 
all or part of its common carrier service, a vessel 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.

[[Page 182]]

    (o) OIRM means the Commission's Office of Information and Resources 
Management.
    (p) Non-vessel-operating common carrier (``NVOCC'') means an ocean 
transportation intermediary as defined by section 3(17)(B) of the Act.
    (q) Service contract means a written contract, other than a bill of 
lading or receipt, between one or more shippers and an individual ocean 
common carrier or an agreement between or among ocean common carriers in 
which the shipper makes a commitment to provide a certain minimum 
quantity or portion of its cargo or freight revenue over a fixed time 
period, and the individual ocean common carrier or the agreement commits 
to a certain rate or rate schedule and 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 any party.
    (r) Shipper means a cargo owner; the person for whose account the 
ocean transportation is provided; the person to whom delivery is to be 
made; a shippers' association; or an NVOCC that accepts responsibility 
for payment of all applicable charges under the service contract.
    (s) Statement of essential terms means a concise statement of the 
essential terms of a service contract required to be published under 
Sec. 530.12 of this part.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 23792, May 4, 1999; 64 
FR 41042, July 29, 1999; 65 FR 26513, May 8, 2000]



Sec. 530.4  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. Nothing contained in this part shall preclude the Commission 
from providing certain information from or access to service contracts 
to another agency of the Federal government of the United States.



Sec. 530.5  Duty to file.

    (a) The duty under this part to file service contracts, amendments 
and notices, and to publish statements of essential terms shall be upon 
the individual carrier party or parties participating or eligible to 
participate in the service contract.
    (b) Filing may be accomplished by any duly agreed-upon agent, as the 
parties to the service contract may designate, and subject to conditions 
as the parties may agree.
    (c) Registration--(1) Application. Authority to file or delegate the 
authority to file must be requested by a responsible official of the 
service contract carrier in writing by submitting to BTCL the 
Registration Form (FMC-83) in Exhibit 1 to this part.
    (2) Approved registrations. OIRM shall provide approved Registrants 
a log-on ID and password for filing and amending service contracts and 
so notify Registrants via U.S. mail.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 41042, July 29, 1999]



Sec. 530.6  Certification of shipper status.

    (a) Certification. The shipper contract party shall sign and 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.
    (b) Proof of tariff and financial responsibility. If the 
certification completed by the contract party under paragraph (a) of 
this section identifies the contract party or an affiliate or member of 
a shippers' association as an NVOCC, the ocean common carrier, 
conference or agreement shall obtain proof that such NVOCC has a 
published tariff and proof of financial responsibility as required under 
sections 8 and 19 of the Act before signing the service contract. An 
ocean common carrier, conference or agreement can obtain such proof by 
the same methods prescribed in Sec. 515.27 of this chapter.
    (c) Joining shippers' association during term of contract. If an 
NVOCC joins a shippers' association during the term of a service 
contract and is thereby entitled to receive service under the contract, 
the NVOCC shall provide to the ocean common carrier, agreement or 
conference the proof of compliance required by paragraph (b) of this 
section

[[Page 183]]

prior to making any shipments under the contract.
    (d) Reliance on NVOCC proof; independent knowledge. An ocean common 
carrier, agreement or conference executing a service contract shall be 
deemed to have complied with section 10(b)(12) of the Act upon meeting 
the requirements of paragraphs (a) and (b) of this section, unless the 
carrier party had reason to know such certification or documentation of 
NVOCC tariff and bonding was false.



Sec. 530.7  Duty to labor organizations.

    (a) Terms. When used in this section, the following terms will have 
these meanings:
    (1) Dock area and within the port area shall have the same meaning 
and scope as defined in the applicable collective bargaining agreement.
    (2) Reasonable period of time ordinarily means:
    (i) If the cargo in question is due to arrive in less than five (5) 
days from the date of receipt of the request as defined in paragraph (b) 
of this section, two (2) days from the date of receipt of the request; 
but
    (ii) If cargo in question is due to arrive in more than five (5) 
days from the date of receipt of the request as defined in paragraph (b) 
of this section, four (4) days from the date of receipt of the request.
    (3) Movement includes, but is not necessarily limited to, the normal 
and usual aspects of the loading and discharging of cargo in containers; 
placement, positioning and re-positioning of cargo or of containers; the 
insertion and removal of cargo into and from containers; and the storage 
and warehousing of cargo.
    (4) Assignment includes, but is not limited to, the carrier's direct 
or indirect control over the parties which, the manner by which, or the 
means by which the shipper's cargo is moved, regardless of whether such 
movement is completed within or outside of containers.
    (5) Transmit means communication by first-class mail, facsimile, 
telegram, hand-delivery, or electronic mail (``e-mail'').
    (b) Procedure. In response to a written request transmitted from a 
labor organization with which it is a party or is subject to the 
provisions of a collective bargaining agreement with a labor 
organization, an ocean common carrier shall state, within a reasonable 
period of time, whether it is responsible for the following work at dock 
areas and within port areas in the United States with respect to cargo 
transported under a service contract:
    (1) The movement of the shipper's cargo on a dock area or within the 
port area or to or from railroad cars on a dock area or within a port 
area;
    (2) The assignment of intraport carriage of the shipper's cargo 
between areas on a dock or within the port area;
    (3) The assignment of the carriage of the shipper's cargo between a 
container yard on a dock area or within the port area and a rail yard 
adjacent to such container yard; or
    (4) The assignment of container freight station work and maintenance 
and repair work performed at a dock area or within the port area.
    (c) Applicability. This section requires the disclosure of 
information by an ocean common carrier only if there exists an 
applicable and otherwise lawful collective bargaining agreement which 
pertains to that carrier.
    (d) Disclosure not deemed admission or agreement. No disclosure made 
by an ocean common carrier shall be deemed to be an admission or 
agreement that any work is covered by a collective bargaining agreement.
    (e) Dispute resolution. Any dispute regarding whether any work is 
covered by a collective bargaining agreement and the responsibility of 
the ocean common carrier under such agreement shall be resolved solely 
in accordance with the dispute resolution procedures contained in the 
collective bargaining agreement and the National Labor Relations Act, 
and without reference to this section.
    (f) Jurisdiction and lawfulness. Nothing in this section has any 
effect on the lawfulness or unlawfulness under the Shipping Act of 1984, 
the National Labor Relations Act, the Taft-Hartley Act, the Federal 
Trade Commission Act, the antitrust laws, or any other federal or state 
law, or any revisions or amendments thereto, of any collective

[[Page 184]]

bargaining agreement or element thereof, including any element that 
constitutes an essential term of a service contract under section 8(c) 
of the Act.



                      Subpart B_Filing Requirements



Sec. 530.8  Service Contracts.

    (a) Authorized persons shall file with BTCL, in the manner set forth 
in appendix A of this part, a true and complete copy of every service 
contract or amendment to a filed service contract before any cargo moves 
pursuant to that service contract or amendment.
    (b) Every service contract filed with the Commission shall include 
the complete terms of the service contract including, but not limited 
to, the following:
    (1) The origin port ranges in the case of port-to-port movements and 
geographic areas in the case of through intermodal movements;
    (2) The destination port ranges in the case of port-to-port 
movements and geographic areas in the case of through intermodal 
movements;
    (3) The commodity or commodities involved;
    (4) The minimum volume or portion;
    (5) The service commitments;
    (6) The line-haul rate;
    (7) Liquidated damages for non-performance (if any);
    (8) Duration, including the
    (i) Effective date; and
    (ii) Expiration date;
    (9) The legal names and business addresses of the contract parties; 
the legal names of affiliates entitled to access the contract; the 
names, titles and addresses of the representatives signing the contract 
for the parties; and the date upon which the service contract was 
signed, except that in the case of a contract entered under the 
authority of an agreement or by a shippers' association, individual 
members need not be named unless the contract includes or excludes 
specific members. Subsequent references in the contract to the contract 
parties shall be consistent with the first reference (e.g., (exact 
name), ``carrier,'' ``shipper,'' or ``association,'' etc.). Carrier 
parties which enter into contracts that include affiliates must either:
    (i) List the affiliates' business addresses; or
    (ii) Certify that this information will be provided to the 
Commission upon request within ten (10) business days of such request. 
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 amendment adds new parties or affiliates;
    (10) A certification of shipper status;
    (11) A description of the shipment records which will be maintained 
to support the service contract and 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 Sec. 530.15 of 
this part; and
    (12) All other provisions of the contract.
    (c) Certainty of terms. The terms described in paragraph (b) of this 
section may not:
    (1) Be uncertain, vague or ambiguous; or
    (2) Make reference to terms not explicitly contained in the service 
contract itself unless those terms are contained in a publication widely 
available to the public and well known within the industry.
    (d) Other requirements. Every service contract filed with BTCL shall 
include, as set forth in appendix A to this part by:
    (1) A unique service contract number of more than one (1) but less 
than ten (10) alphanumeric characters in length (``SC Number''); and
    (2) A consecutively numbered amendment number no more than three 
digits in length, with initial service contracts using ``0''(``Amendment 
number'');
    (3) The filed FMC Agreement Number(s) assigned by the Commission 
under 46 CFR part 535 (if applicable); and
    (4) An indication of the method by which the statement of essential 
terms will be published.
    (e) Exception in case of malfunction of Commission filing system. 
(1) In the event that the Commission's filing systems are not 
functioning and cannot receive service contract filings for twenty-four 
(24) continuous hours or more, affected

[[Page 185]]

parties will not be subject to the requirements of paragraph (a) of this 
section and Sec. 530.14(a) that a service contract be filed before 
cargo is shipped under it.
    (2) However, service contracts which go into effect before they are 
filed, pursuant to paragraph (e)(1) of this section, must be filed 
within twenty-four (24) hours of the Commission's filing systems' return 
to service.
    (3) Failure to file a service contract that goes into effect before 
it is filed, pursuant to paragraph (e)(1) of this section, within 
twenty-four (24) hours of the Commission's filing systems' return to 
service will be considered a violation of Commission regulations.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 23793, May 4, 1999; 64 
FR 41042, July 29, 1999]



Sec. 530.9  Notices.

    Within thirty (30) days of the occurrence of any event listed below, 
there shall be filed with the Commission, pursuant to the same 
procedures as those followed for the filing of an amendment pursuant to 
Sec. 530.10 and appendix A to this part, a detailed notice of:
    (a) Correction (clerical or administrative errors);
    (b) Cancellation (as defined in Sec. 530.10(a)(3));
    (c) Adjustment of accounts, by re-rating, liquidated damages, or 
otherwise;
    (d) Final settlement of any account adjusted as described in 
paragraph (c) of this section; and
    (e) Any change to:
    (1) The name of a basic contract party; or
    (2) The list of affiliates under Sec. 530.8(b)(9), including 
changes to legal names and business addresses, of any contract party 
entitled to receive or authorized to offer services under the contract.



Sec. 530.10  Amendment, correction, cancellation, and electronic transmission errors.

    (a) Terms. When used in this section, the following terms will have 
these meanings:
    (1) Amendment means any change to a service contract which has 
prospective effect and which is mutually agreed upon by the service 
contract parties.
    (2) Correction means any change to a service contract which has 
retroactive effect.
    (3) Cancellation means an event which is unanticipated by the 
service contract, in liquidated damages or otherwise, and is due to the 
failure of the shipper party to tender minimum cargo as set forth in the 
contract, unless such tender was made impossible by an action of the 
carrier party.
    (b) Amendment. Service contracts may be amended by mutual agreement 
of the parties to the contract. Amendments shall be filed electronically 
with the Commission in the manner set forth in Sec. 530.8 and appendix 
A to this part.
    (1) Where feasible, service contracts should be amended by amending 
only the affected specific term(s) or subterms.
    (2) Each time any part of a service contract is amended, the filer 
shall assign a consecutive amendment number (up to three digits), 
beginning with the number ``1.''
    (3) Each time any part of the service contract is amended, the 
``Filing Date'' will be the date of filing of the amendment.
    (c) Corrections. Requests shall be filed, in duplicate, with the 
Commission's Office of the Secretary within forty-five (45) days of the 
contract's filing with the Commission, accompanied by remittance of a 
$315 service fee, and shall include:
    (1) 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;
    (2) A paper copy of the proposed correct terms. Corrections shall be 
indicated as follows:
    (i) Matter being deleted shall be struck through; and
    (ii) Matter to be added shall immediately follow the language being 
deleted and be underscored;
    (3) 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;

[[Page 186]]

    (4) Documents supporting the clerical or administrative error; and
    (5) A brief statement from the other party to the contract 
concurring in the request for correction.
    (6) If the request for correction is granted, the carrier, agreement 
or conference shall file the corrected contract provisions using a 
special case number as described in appendix A to this part.
    (d) Electronic transmission errors. An authorized person who 
experiences a purely technical electronic transmission error or a data 
conversion error in transmitting a service contract filing or an 
amendment thereto is permitted to file a Corrected Transmission (``CT'') 
of that filing within 48 hours of the date and time of receipt recorded 
in SERVCON (excluding Saturdays, Sundays and legal public holidays). 
This time-limited permission to correct an initial defective service 
contract filing is not to be used to make changes in the original 
service contract rates, terms or conditions that are otherwise provided 
for in paragraphs 530.10(b) and (c) of this section. The CT tab box in 
SERVCON must be checked at the time of resubmitting a previously filed 
service contract, and a description of the corrections made must be 
stated at the beginning of the corrected service contract in a comment 
box. Failure to check the CT box and enter a description of the 
correction will result in the rejection of a file with the same name, 
since documents with duplicate file names or service contract and 
amendment numbers are not accepted by SERVCON.
    (e) Cancellation. (1) An account may be adjusted for events and 
damages covered by the service contract. This shall include adjustment 
necessitated by either liability for liquidated damages appearing in the 
service contract as filed with the Commission under Sec. 530.8(b)(7), 
or the occurrence of an event described below in paragraph (d)(2) of 
this section.
    (2) In the event of cancellation as defined in Sec. 530.10(a)(3):
    (i) Further or continued implementation of the service contract is 
prohibited; and
    (ii) The cargo previously carried under the contract shall be re-
rated according to the otherwise applicable tariff provisions.
    (f) If the amendment, correction or cancellation affects an 
essential term required to be published under Sec. 530.12 of this part, 
the statement of essential terms shall be changed as soon as possible 
after the filing of the amendment to accurately reflect the change to 
the contract terms.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 23793, May 4, 1999; 67 
FR 39860, June 11, 2002; 68 FR 43327, July 22, 2003; 70 FR 10330, Mar. 
3, 2005]



Sec. 530.11  [Reserved]



                Subpart C_Publication of Essential Terms



Sec. 530.12  Publication.

    (a) Contents. All authorized persons who have a duty to file service 
contracts under Sec. 530.5 are also required to make available to the 
public, contemporaneously with the filing of each service contract with 
the Commission, and in tariff format, a concise statement of the 
following essential terms:
    (1) The port ranges:
    (i) Origin; and
    (ii) Destination;
    (2) The commodity or commodities involved;
    (3) The minimum volume or portion; and
    (4) The duration.
    (b) Certainty of terms. The terms described in paragraph (a) of this 
section may not:
    (1) Be uncertain, vague or ambiguous; or
    (2) Make reference to terms not explicitly detailed in the statement 
of essential terms, unless those terms are contained in a publication 
widely available to the public and well known within the industry.
    (c) Location--(1) Generally. The statement of essential terms shall 
be published as a separate part of the individual carrier's automated 
tariff system.
    (2) Multi-party service contracts. For service contracts in which 
more than one carrier participates or is eligible to participate, the 
statement of essential terms shall be published:

[[Page 187]]

    (i) If the service contract is entered into under the authority of a 
conference agreement, then in that conference's automated tariff system;
    (ii) If the service contract is entered into under the authority of 
a non-conference agreement, then in each of the participating or 
eligible-to-participate carriers' individual automated tariff systems, 
clearly indicating the relevant FMC-assigned agreement number.
    (d) References. The statement of essential terms shall contain a 
reference to the ``SC Number'' as described in Sec. 530.8(d)(1).
    (e) Terms. (1) The publication of the statement of essential terms 
shall accurately reflect the terms as filed confidentially with the 
Commission.
    (2) If any of the published essential terms include information not 
required to be filed with the Commission but filed voluntarily, the 
statement of essential terms shall so note.
    (f) Agents. Common carriers, conferences, or agreements may use 
agents to meet their publication requirements under this part.
    (g) Commission listing. The Commission will publish on its website, 
www.fmc.gov, a listing of the locations of all service contract 
essential terms publications.
    (h) Updating statements of essential terms. To ensure that the 
information contained in a published statement of essential terms is 
current and accurate, the statement of essential terms publication shall 
include a prominent notice indicating the date of its most recent 
publication or revision. When the published statement of essential terms 
is affected by filed amendments, corrections, or cancellations, the 
current terms shall be changed and published as soon as possible in the 
relevant statement of essential terms.

[64 FR 11206, Mar. 8, 1999, as amended at 64 FR 23793, May 4, 1999]



                 Subpart D_Exceptions and Implementation



Sec. 530.13  Exceptions and exemptions.

    (a) Statutory exceptions. Service contracts for the movement of the 
following, as defined in section 3 of the Act, Sec. 530.3 or Sec. 
520.1 of this chapter, are excepted by section 8(c) of the Act from the 
requirements of that section, and are therefore not subject to the 
requirements of this part:
    (1) Bulk cargo;
    (2) Forest products;
    (3) Recycled metal scrap;
    (4) New assembled motor vehicles; and
    (5) Waste paper or paper waste.
    (b) Commission exemptions. Exemptions from the requirements of this 
part are governed by section 16 of the Act and Rule 67 of the 
Commission's Rules of Practice and Procedure, Sec. 502.67 of this 
chapter. The following commodities and/or services are exempt from the 
requirements of this part:
    (1) Mail in foreign commerce. Transportation of mail between the 
United States and foreign countries.
    (2) Department of Defense cargo. Transportation of U.S. Department 
of Defense cargo moving in foreign commerce under terms and conditions 
negotiated and approved by the Military Transportation Management 
Command and published in a universal service contract. An exact copy of 
the universal service contract, including any amendments thereto, shall 
be filed with the Commission as soon as it becomes available.
    (c) Inclusion of excepted or exempted matter. (1) The Commission 
will not accept for filing service contracts which exclusively concern 
the commodities or services listed in paragraph (a) or (b) of this 
section.
    (2) Service contracts filed with the Commission may include the 
commodities or services listed in paragraph (a) or (b) of this section 
only if:
    (i) There is a tariff of general applicability for the 
transportation, which contains a specific commodity rate for the 
commodity or service in question; or
    (ii) The service contract itself sets forth a rate or charge which 
will be applied if the contract is canceled, as defined in Sec. 
530.10(a)(3).
    (d) Waiver. Upon filing a service contract pursuant to paragraph (c) 
of this section, the service contract shall be

[[Page 188]]

subject to the same requirements as those for service contracts 
generally.

[64 FR 23793, May 4, 1999]



Sec. 530.14  Implementation

    (a) Generally. Performance under a service contract or amendment 
thereto may not begin before the day it is effective and filed with the 
Commission.
    (b) Prohibition or suspension. When the filing parties receive 
notice that an initial or amended service contract has been prohibited 
under section 9(d) or suspended under section 11a(e)(1)(B) of the Act:
    (1) Further or continued implementation of the service contract is 
prohibited;
    (2) All services performed under the contract shall be re-rated in 
accordance with the otherwise applicable tariff provisions for such 
services with notice to the shipper within five (5) days of the date of 
prohibition or suspension; and
    (3) Detailed notice shall be given to the Commission under Sec. 
530.9 within thirty (30) days of:
    (i) The re-rating or other account adjustment resulting from 
prohibition or suspension under paragraph (b)(2) of this section; or
    (ii) Final settlement of the account adjusted under Sec. 530.10.
    (c) Agreements. If the prohibited or suspended service contract was 
that of an agreement with no common tariff, the re-rating shall be in 
accordance with the published tariff rates of the carrier which 
transported the cargo in effect at the time.



                    Subpart E_Recordkeeping and Audit



Sec. 530.15  Recordkeeping and audit.

    (a) Records retention for five years. Every common carrier, 
conference or agreement shall maintain original signed service 
contracts, amendments, and their associated records in an organized, 
readily accessible or retrievable manner for a period of five (5) years 
from the termination of each contract.
    (b) (paragraph (b) is stayed until further notice.) Where 
maintained. (1) 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 an agreement 
or President or Chief Executive Officer of the 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 
(c) of this section.
    (2) Penalty. If service contract records are not made available to 
the Commission as provided in paragraph (c) of this section, the 
Commission may cancel any carrier's or agreement's right to maintain 
records outside the United States pursuant to the certification 
procedure of paragraph (b) of this section.
    (c) Production for audit within 30 days of request. Every carrier or 
agreement shall, upon written request of the FMC's Director, Bureau of 
Enforcement, any Area Representative or the Director, Bureau of 
Economics and Agreements Analysis, submit copies of requested original 
service contracts or their associated records within thirty (30) days of 
the date of the request.
    (d) Agreement service contracts. In the case of service contracts 
made by agreements, the penalties for a failure to maintain records 
pursuant to this section shall attach jointly and severally on all of 
the agreement members participating in the service contract in question.



Sec. 530.91  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    The Commission has received OMB approval for this collection of 
information pursuant to the Paperwork Reduction Act of 1995, as amended. 
In accordance with that Act, agencies are required to display a 
currently valid control number. The valid control number for this 
collection of information is 3072-0065.

Appendix A to Part 530--Instructions for the Filing of Service Contracts

    Service contracts shall be filed in accordance with the instructions 
found on the Commission's home page, http://www.fmc.gov.

[[Page 189]]

                 A. Registration, Log-on ID and Password

    To register for filing, a carrier, conference, agreement or 
publisher must submit the Service Contract Registration Form (Form FMC-
83) to BTCL. A separate Service Contract Registration Form is required 
for each individual that will file service contracts. BTCL will direct 
OIRM to provide approved filers with a log-on ID and password. Filers 
who wish a third party (publisher) to file their service contracts must 
so indicate on Form FMC-83. Authority for organizational filing can be 
transferred by submitting an amended registration form requesting the 
assignment of a new log-on ID and password. The original log-on ID will 
be canceled when a replacement log-on ID is issued. Log-on IDs and 
passwords may not be shared with, loaned to or used by any individual 
other than the individual registrant. The Commission reserves the right 
to disable any log-on ID that is shared with, loaned to or used by 
parties other than the registrant.

                                B. Filing

    After receiving a log-on ID and a password, a filer may log-on to 
the service contract filing area on the Commission's home page and file 
service contracts. The filing screen will request such information as: 
filer name, Registered Persons Index (``RPI'') number and carrier RPI 
number (if different); Service Contract and amendment number; and 
effective date. The filer will attach the entire service contract file 
and submit it into the system. When the service contract has been 
submitted for filing, the system will assign a filing date and an FMC 
control number, both of which will be included in the acknowledgment/
confirmation message.

[64 FR 41042, July 29, 1999]

[[Page 190]]

   Exhibit 1 to Part 530--Service Contract Registration [Form FMC-83]
[GRAPHIC] [TIFF OMITTED] TR08MR99.023


[[Page 191]]



                      Instructions for Form FMC-83

                              Instructions

    Line 1. Registration. Indicate whether this is the initial (first 
time) registration or an amendment to an existing Service Contract 
Registration.
    Line 2. Registrant. This must be the full legal name of the firm or 
individual registering for the FMC's Service Contract Filing System and 
any trade names. The registrant name should match the corporate charter 
or business license, conference membership, etc. It should be noted that 
the registrant name cannot be changed by the registrant after the 
registration without submission of an amended registration fee.
    Line 3. Address of Home Office. The complete street address should 
be shown in addition to the post office box. Also, provide the 
registrant's Federal Taxpayer Identification Number (``TIN'' Number).
    Line 4. Billing Address if Different. This should be completed if 
the billing address differs from the home office address. Show the firm 
name (if different from the registrant), street address and post office 
box (if applicable).
    Line 5. Organization Number. Complete if known. (Regulated Persons 
Index or ``RPI'' number.)
    Line 6. Registrant Type. Indicate the type of organization. A 
registrant cannot be more than one type. This data cannot be changed by 
the registrant after registration without submission of an amended 
registration form.
    Line 7. Permissions Requested and Person Granted These Permissions. 
Delegation of the authority to file should be noted here.
    Maintenance of Organization Record--The person listed in line 8 is 
authorized to access the organization maintenance functions (i.e., 
modify organization information, assign publishers, affiliations, and d/
b/as).
    Service Contract Filing--The person listed in line 8 is authorized 
only to submit filings.
    Line 8. Certified for Batch Filing. Indicate whether the registrant 
was registered with software certified to perform batch filings prior to 
May 1, 1999. Otherwise, the registrant must first be certified for batch 
filing as outlined in 46 CFR part 530. After certification, the 
registrant can submit an amended registration form to request permission 
for a person in their organization to perform the batch filing. If the 
person already has an existing log-on, the log-on (not the password) 
should be listed on the registration form. Also, the certification date 
received from the FMC should be listed on the registration form.



PART 531_NVOCC SERVICE ARRANGEMENTS--Table of Contents




                      Subpart A_General Provisions

Sec.
531.1 Purpose.
531.2 Scope and applicability.
531.3 Definitions.
531.4 Confidentiality.
531.5 Duty to file.

                      Subpart B_Filing Requirements

531.6 NVOCC Service Arrangements.
531.7 Notices.
531.8 Amendment, correction, cancellation, and electronic transmission 
          errors.

                Subpart C_Publication of Essential Terms

531.9 Publication.

                 Subpart D_Exceptions and Implementation

531.10 Excepted and exempted commodities.
531.11 Implementation.

                    Subpart E_Recordkeeping and Audit

531.12 Recordkeeping and audit.
531.13-531.98 [Reserved]
531.99 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

Appendix A to Part 531--Instructions for the Filing of NVOCC Service 
          Arrangements
Exhibit 1 to Part 531--NVOCC Service Arrangement Registration [FORM FMC-
          78]

    Authority: 46 U.S.C. app. 1715.

    Source: 69 FR 75853, Dec. 20, 2004, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 531.1  Purpose.

    This part exempts NVOCCs from certain provisions of the Shipping 
Act. The purpose of this part is to facilitate the filing of NVOCC 
Service Arrangements (``NSAs'') and the publication of certain essential 
terms of those NSAs as they are exempt from the otherwise applicable 
provisions of the Shipping Act of 1984 (``Act''). This part enables the 
Commission to review NSAs to ensure that they and the parties to them 
comport with the conditions of the exemption as set forth below.

[[Page 192]]



Sec. 531.2  Scope and applicability.

    Only individual NVOCCs compliant with the requirements of section 19 
of the Act and the Commission's regulations at 46 CFR part 515 may enter 
into an NSA with one or more NSA shippers subject to the requirements of 
these rules. Any NVOCC who has failed to maintain its bond or license or 
had its tariff suspended or cancelled by the Commission is ineligible to 
offer and file NSAs.



Sec. 531.3  Definitions.

    When used in this part:
    (a) Act means the Shipping Act of 1984 as amended by the Ocean 
Shipping Reform Act of 1998;
    (b) Affiliate means two or more entities which are under common 
ownership or control by reason of being parent and subsidiary or 
entities associated with, under common control with, or otherwise 
related to each other through common stock ownership or common directors 
or officers.
    (c) Amendment means any change to a filed NSA which has prospective 
effect and which is mutually agreed upon by all parties to the NSA.
    (d) Authorized person means an NVOCC or duly appointed agent who is 
authorized to file NSAs on behalf of the NVOCC and to publish the 
corresponding statement of essential terms and is registered by the 
Commission to file under Sec. 531.5 and Appendix A to this part.
    (e) BTA means the Commission's Bureau of Trade Analysis, or its 
successor bureau.
    (f) BCL means the Commission's Bureau of Certification and 
Licensing, or its successor bureau.
    (g) Cancellation means an event which is unanticipated by the NSA, 
in liquidated damages or otherwise, and is due to the failure of the NSA 
shipper to tender minimum cargo as set forth in the contract, unless 
such tender was made impossible by an action of the NVOCC.
    (h) Commission or FMC means the Federal Maritime Commission.
    (i) 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, except that the term does 
not include a common carrier engaged in ocean transportation by ferry 
boat, ocean tramp, or chemical parcel tanker, or by a vessel when 
primarily engaged in the carriage of perishable agricultural 
commodities:
    (i) If the common carrier and the owner of those commodities are 
wholly owned, directly or indirectly, by a person primarily engaged in 
the marketing and distribution of those commodities and
    (ii) Only with respect to those commodities.
    (j) Correction means any change to a filed NSA that has retroactive 
effect.
    (k) Effective date means the date upon which an NSA or amendment is 
scheduled to go into effect by the parties to the NSA. An NSA or 
amendment becomes effective at 12:01 a.m. Eastern Standard Time on the 
beginning of the effective date. The effective date cannot be prior to 
the filing date of the NSA or amendment with the Commission.
    (l) Expiration date means the last day after which the entire NSA is 
no longer in effect.
    (m) File or filing (of NSAs or amendments thereto) means the use of 
the Commission's electronic filing system for receipt of an NSA or an 
amendment thereto by the Commission, consistent with the method set 
forth in Appendix A of this part, and the recording of its receipt by 
the Commission.
    (n) OIT means the Commission's Office of Information Technology, or 
its successor office.
    (o) NSA shipper means a cargo owner, the person for whose account 
the ocean transportation is provided, the person

[[Page 193]]

to whom delivery is to be made, a shippers' association, or an ocean 
transportation intermediary, as defined in section 3(17)(B) of the Act, 
that accepts responsibility for payment of all applicable charges under 
the NSA.
    (p) NVOCC Service Arrangement (``NSA'') means a written contract, 
other than a bill of lading or receipt, between one or more NSA shippers 
and an individual NVOCC or two or more affiliated NVOCCs, in which the 
NSA shipper makes a commitment to provide a certain minimum quantity or 
portion of its cargo or freight revenue over a fixed time period, and 
the NVOCC commits to a certain rate or rate schedule and a defined 
service level. The NSA may also specify provisions in the event of 
nonperformance on the part of any party.
    (q) Statement of essential terms means a concise statement of the 
essential terms of an NSA required to be published under this part.

[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 56580, Sept. 28, 2005]



Sec. 531.4  Confidentiality.

    (a) All NSAs and amendments to NSAs filed with the Commission shall, 
to the fullest extent permitted by law, be held in confidence by the 
Commission.
    (b) Nothing contained in this part shall preclude the Commission 
from providing certain information from or access to NSAs to another 
agency of the Federal government of the United States.
    (c) Parties to a filed NSA may agree to disclose information 
contained in it. Breach of any confidentiality agreement contained in an 
NSA by either party will not, on its own, be considered a violation of 
these rules.



Sec. 531.5  Duty to file.

    (a) The duty under this part to file NSAs, amendments and notices, 
and to publish statements of essential terms, shall be upon the NVOCC 
acting as carrier party to the NSA.
    (b) The Commission shall not order any person to pay the difference 
between the amount billed and agreed upon in writing with a common 
carrier or its agent and the amount set forth in an NSA by that common 
carrier for the transportation service provided.
    (c) Filing may be accomplished by any duly agreed-upon agent, as the 
parties to the NSA may designate, and subject to conditions as the 
parties may agree.
    (d) Registration--(1) Application. Authority to file or delegate the 
authority to file must be requested by a responsible official of the 
NVOCC in writing by submitting to BTA, either by mail to 800 N. Capitol 
Street, NW., Washington, DC 20573, or by facsimile to (202) 523-5867, a 
completed NSA Registration Form (FMC-78)(Exhibit 1 to this part).
    (2) Approved registrations. OIT shall provide approved Registrants a 
log-on identification number (``I.D.'') and password for filing and 
amending NSAs, and notify Registrants of such approval via U.S. mail.

[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 56580, Sept. 28, 2005]



                      Subpart B_Filing Requirements



Sec. 531.6  NVOCC Service Arrangements.

    (a) Authorized persons shall file with BTA, in the manner set forth 
in Appendix A of this part, a true and complete copy of every NSA or 
amendment before any cargo moves pursuant to that NSA or amendment.
    (b) Every NSA filed with the Commission shall include the complete 
terms of the NSA including, but not limited to, the following:
    (1) The origin port ranges in the case of port-to-port movements and 
geographic areas in the case of through intermodal movements;
    (2) The destination port ranges in the case of port-to-port 
movements and geographic areas in the case of through intermodal 
movements;
    (3) The commodity or commodities involved;
    (4) The minimum volume or portion;
    (5) The service commitments;
    (6) The line-haul rate;
    (7) Liquidated damages for non-performance (if any);
    (8) Duration, including the
    (i) Effective date; and
    (ii) Expiration date;
    (9) The legal names and business addresses of the NSA parties; the 
legal

[[Page 194]]

names of all affiliates of the NSA shipper entitled to access the NSA; 
the names, titles and addresses of the representatives signing the NSA 
for the parties, except that in the case of an NSA entered into by a 
shippers' association, individual members need not be named unless the 
contract includes or excludes specific members; and the date upon which 
the NSA was signed. Subsequent references in the NSA to the signatory 
parties shall be consistent with the first reference. An NVOCC party 
which enters into an NSA that includes affiliates must either:
    (i) list the affiliates' business addresses; or
    (ii) certify that this information will be provided to the 
Commission upon request within ten (10) business days of such request.
    (10) A description of the shipment records which will be maintained 
to support the NSA and 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 Sec. 531.12 of this 
part; and
    (11) All other provisions of the NSA.
    (c) Certainty of terms. The terms described in paragraph (b) of this 
section may not:
    (1) Be uncertain, vague or ambiguous; or
    (2) Make reference to terms not explicitly contained in the NSA 
itself unless those terms are contained in a publication widely 
available to the public and well known within the industry. Reference 
may not be made to a tariff of a common carrier other than the NVOCC 
acting as carrier party to the NSA.
    (d) Other requirements. (1) For service pursuant to an NSA, no NVOCC 
may, either alone or in conjunction with any other person, directly or 
indirectly, provide service in the liner trade that is not in accordance 
with the rates, charges, classifications, rules and practices contained 
in a filed NSA.
    (2) For service pursuant to an NSA, no NVOCC, may, either alone or 
in conjunction with any other person, directly or indirectly, engage in 
any unfair or unjustly discriminatory practice in the matter of rates or 
charges with respect to any port; and
    (3) For service under an NSA, no NVOCC may, either alone or in 
conjunction with any other person, directly or indirectly, give any 
undue or unreasonable preference or advantage or impose any undue or 
unreasonable prejudice or disadvantage with respect to any port.
    (4) No NVOCC may knowingly and willfully enter into an NSA with an 
ocean transportation intermediary that does not have a tariff and a 
bond, insurance, or other surety as required by sections 8 and 19 of the 
Act.
    (e) Format requirements. Every NSA filed with BTA shall include, as 
set forth in Appendix A to this part:
    (1) A unique NSA number of more than one (1) but less than ten (10) 
alphanumeric characters in length (``NSA Number''); and
    (2) A consecutively numbered amendment number no more than three 
digits in length, with initial NSAs using ``0'' (``Amendment number''); 
and
    (3) An indication of the method by which the statement of essential 
terms will be published.
    (f) Exception in case of malfunction of Commission electronic filing 
system. (1) In the event that the Commission's electronic filing system 
is not functioning and cannot receive NSAs filings for twenty-four (24) 
continuous hours or more, affected parties will not be subject to the 
requirements of paragraph (a) of this section and Sec. 531.11 that an 
NSA be filed before cargo is shipped under it.
    (2) However, NSAs which go into effect before they are filed due to 
a malfunction of the Commission's electronic filing system pursuant to 
paragraph (f)(1) of this section, must be filed within twenty-four (24) 
hours of the Commission's electronic filing system's return to service.
    (3) For an NSA that is effective without filing due to a malfunction 
of the Commission's filing system, failure to file that NSA within 
twenty-four (24) hours of the Commission's electronic filing system's 
return to service will be considered a violation of these regulations.
    (g) Failure to comply with the provisions of this section shall 
result in the

[[Page 195]]

application of the terms of the otherwise applicable tariff.

[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 56580, Sept. 28, 2005]



Sec. 531.7  Notices.

    Within thirty (30) days of the occurrence of any event listed below, 
there shall be filed with the Commission, pursuant to the same 
procedures as those followed for the filing of an amendment pursuant to 
Sec. 531.5 and Appendix A to this part, a detailed notice of:
    (a) Correction;
    (b) Cancellation;
    (c) Adjustment of accounts, by re-rating, liquidated damages, or 
otherwise;
    (d) Final settlement of any account adjusted as described in 
paragraph (c) of this section; and
    (e) Any change to the name, legal name and/or business address of 
any NSA party.



Sec. 531.8  Amendment, correction, cancellation, and electronic transmission errors.

    (a) Amendment. (1) NSAs may be amended by mutual agreement of the 
parties. Amendments shall be filed electronically with the Commission in 
the manner set forth in Sec. 531.5 and Appendix A to this part.
    (i) Where feasible, NSAs should be amended by amending only the 
affected specific term(s) or subterms.
    (ii) Each time any part of an NSA is amended, the filer shall assign 
a consecutive amendment number (up to three digits), beginning with the 
number ``1.''
    (iii) Each time any part of a filed NSA is amended, the ``Filing 
Date'' will be the date of filing of the amendment.
    (2) [Reserved]
    (b) Correction. (1) Requests shall be filed, in duplicate, with the 
Commission's Office of the Secretary within forty-five (45) days of the 
NSA's filing with the Commission, accompanied by remittance of a $276 
service fee.
    (2) Requests shall include:
    (i) A letter of transmittal explaining the purpose of the 
submission, and providing specific information to identify the initial 
or amended NSA to be corrected;
    (ii) A paper copy of the proposed correct terms. Matter to be 
deleted shall be struck through and matter to be added shall immediately 
follow the language being deleted and 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 NSA concurring in 
the request for correction.
    (3) If the request for correction is granted, the carrier party 
shall file the corrected provisions using a special case number as 
described in Appendix A to this part.
    (c) Electronic transmission errors. (1) An authorized person who 
experiences a purely technical electronic transmission error or a data 
conversion error in transmitting an NSA filing or an amendment thereto 
is permitted to file a Corrected Transmission (``CT'') of that filing 
within 48 hours of the date and time of receipt recorded in the 
Commission's electronic filing system (excluding Saturdays, Sundays and 
legal public holidays). This time-limited permission to correct an 
initial defective NSA filing is not to be used to make changes in the 
original NSA rates, terms or conditions that are otherwise provided for 
in Sec. 531.6(b). The CT tab box in the Commission's electronic filing 
system must be checked at the time of resubmitting a previously filed 
NSA, and a description of the corrections made must be stated at the 
beginning of the corrected NSA in a comment box. Failure to check the CT 
box and enter a description of the correction will result in the 
rejection of a file with the same name, as documents with duplicate file 
names or NSA and amendment numbers are not accepted by the FMC's 
electronic filing system.
    (2) [Reserved]
    (d) Cancellation. (1) An account may be adjusted for events and 
damages covered by the NSA. This shall include

[[Page 196]]

adjustment necessitated by either liability for liquidated damages 
appearing in the NSA as filed with the Commission under Sec. 
531.6(b)(7), or the occurrence of an event described below in paragraph 
(d)(2) of this section.
    (2) In the event of cancellation as defined in Sec. 531.3(g):
    (i) Further or continued implementation of the NSA is prohibited; 
and
    (ii) The cargo previously carried under the NSA shall be re-rated 
according to the otherwise applicable tariff provisions.
    (e) If the amendment, correction or cancellation affects an 
essential term required to be published under Sec. 531.9, the statement 
of essential terms shall be changed as soon as possible after the filing 
of the amendment to accurately reflect the change to the NSA terms.



                Subpart C_Publication of Essential Terms



Sec. 531.9  Publication.

    (a) Contents. All authorized persons who choose to file NSAs under 
this part are also required to make available to the public, 
contemporaneously with the filing of each NSA with the Commission, and 
in tariff format, a concise statement of the following essential terms:
    (1) The port ranges:
    (i) origin; and
    (ii) destination;
    (2) The commodity or commodities involved;
    (3) The minimum volume or portion; and
    (4) The duration.
    (b) Certainty of terms. The terms described in paragraph (a) of this 
section may not:
    (1) Be uncertain, vague or ambiguous; or
    (2) Make reference to terms not explicitly detailed in the statement 
of essential terms, unless those terms are contained in a publication 
widely available to the public and well known within the industry. 
Reference may not be made to a tariff of a common carrier other than the 
NVOCC party to the NSA.
    (c) Location. The statement of essential terms shall be published as 
a separate part of the individual NVOCC's automated tariff system.
    (d) References. The statement of essential terms shall contain a 
reference to the ``NSA Number'' as described in Sec. 531.6(e)(1).
    (e) Terms. (1) The publication of the statement of essential terms 
shall accurately reflect the terms as filed with the Commission.
    (2) If any of the published essential terms include information not 
required to be filed with the Commission but filed voluntarily, the 
statement of essential terms shall so note.
    (f) Commission listing. The Commission will publish on its website, 
www.fmc.gov, a listing of the locations of all NSA essential terms 
publications.
    (g) Updating statements of essential terms. To ensure that the 
information contained in a published statement of essential terms is 
current and accurate, the statement of essential terms publication shall 
include a prominent notice indicating the date of its most recent 
publication or revision. When the published statement of essential terms 
is affected by filed amendments, corrections, or cancellations, the 
current terms shall be changed and published as soon as possible in the 
relevant statement of essential terms.



                 Subpart D_Exceptions and Implementation



Sec. 531.10  Excepted and exempted commodities.

    (a) Statutory exceptions. NSAs for the movement of the following, as 
defined in section 3 of the Act, the Commission's rules at 46 CFR 530.3 
or 46 CFR 520.1, are not subject to the conditions of this exemption:
    (1) Bulk cargo;
    (2) Forest products;
    (3) Recycled metal scrap;
    (4) New assembled motor vehicles; and
    (5) Waste paper or paper waste.
    (b) Commission exemptions. The following commodities and/or services 
are not subject to the conditions of this exemption:
    (1) Mail in foreign commerce. Transportation of mail between the 
United States and foreign countries.

[[Page 197]]

    (2) Department of Defense cargo. Transportation of U.S. Department 
of Defense cargo moving in foreign commerce under terms and conditions 
approved by the Military Transportation Management Command and published 
in a universal service contract. An exact copy of the universal service 
contract, including any amendments thereto, shall be filed with the 
Commission as soon as it becomes available.
    (c) Inclusion of excepted or exempted matter. (1) The Commission 
will not accept for filing NSAs which exclusively concern the 
commodities or services listed in paragraph (a) or (b) of this section.
    (2) NSAs filed with the Commission may include the commodities or 
services listed in paragraph (a) or (b) of this section only if:
    (i) There is a tariff of general applicability for the 
transportation, which contains a specific commodity rate for the 
commodity or service in question; or
    (ii) The NSA itself sets forth a rate or charge which will be 
applied if the NSA is canceled, as defined in Sec. 531.3(e) and Sec. 
531.8(d).
    (d) Waiver. Upon filing an NSA pursuant to paragraph (c) of this 
section, the NSA shall be subject to the same requirements as those for 
NSAs generally.



Sec. 531.11  Implementation.

    Generally. Performance under an NSA or amendment thereto may not 
begin before the day it is effective and filed with the Commission.



                    Subpart E_Recordkeeping and Audit



Sec. 531.12  Recordkeeping and audit.

    (a) Records retention for five years. Every NVOCC shall maintain 
original signed NSAs, amendments, and their associated records in an 
organized, readily accessible or retrievable manner for a period of five 
(5) years from the termination of each NSA. These records must be kept 
in a form that is readily available and usable to the Commission; 
electronically maintained records shall be no less accessible than if 
they were maintained in paper form.
    (b) Production for audit within 30 days of request. Every NVOCC 
shall, upon written request of the FMC's Director, Bureau of 
Enforcement, any Area Representative or the Director, Bureau of Trade 
Analysis, submit copies of requested original NSAs or their associated 
records within thirty (30) days of the date of the request.



Sec. 531.13-531.98  [Reserved]



Sec. 531.99  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    The Commission has received OMB approval for this collection of 
information pursuant to the Paperwork Reduction Act of 1995, as amended. 
In accordance with that Act, agencies are required to display a 
currently valid control number. The valid control number for this 
collection of information is 3072-0070. The valid control number for 
form FMC-78 is 3072-0070.

[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 31370, June 1, 2005]

       Appendix A to Part 531--Instructions for the Filing of NSAs

    NSAs shall be filed in accordance with the instructions found on the 
Commission's home page, http://www.fmc.gov.

                A. Registration, Log-on I.D. and Password

    To register for filing, an NVOCC or authorized agent must submit the 
NSA Registration Form (Form FMC-78) to BTA. A separate NSA Registration 
Form is required for each individual that will file NSAs. BTA will 
direct OIT to provide approved filers with a log-on identification 
number (``I.D.'') and password. Filers who would like a third party 
(agent/publisher) to file their NSAs must so indicate on Form FMC-78. 
Authority for filing can be transferred by submitting an amended 
registration form requesting the assignment of a new log-on I.D. and 
password. The original log-on ID will be canceled when a replacement 
log-on I.D. is issued. Log-on I.D.s and passwords may not be shared 
with, loaned to or used by any individual other than the individual 
registrant. The Commission reserves the right to disable any log-on I.D. 
that is shared with, loaned to or used by parties other than the 
registrant.

                                B. Filing

    After receiving a log-on I.D. and a password, a filer may log-on to 
the NSA filing area on the Commission's home page and file

[[Page 198]]

NSAs. The filing screen will request such information as: filer name, 
organization number (``Registered Persons Index'' or ``RPI'' number); 
NSA and amendment number; effective date and file name. The filer will 
attach the entire NSA file and submit it into the system. When the NSA 
has been submitted for filing, the system will assign a filing date and 
an FMC control number, both of which will be included in the 
acknowledgment/confirmation message.

[[Page 199]]

[GRAPHIC] [TIFF OMITTED] TR20DE04.117


[[Page 200]]


[GRAPHIC] [TIFF OMITTED] TR20DE04.118


[[Page 201]]


[GRAPHIC] [TIFF OMITTED] TR01JN05.637


[[Page 202]]



[69 FR 75853, Dec. 20, 2004, as amended at 70 FR 31370, June 1, 2005]



PART 535_OCEAN COMMON CARRIER AND MARINE TERMINAL OPERATOR AGREEMENTS
SUBJECT TO THE SHIPPING ACT OF 1984--Table of Contents




                      Subpart A_General Provisions

Sec.
535.101 Authority.
535.102 Purpose.
535.103 Policies.
535.104 Definitions.

                             Subpart B_Scope

535.201 Subject agreements.
535.202 Non-subject agreements.

                          Subpart C_Exemptions

535.301 Exemption procedures.
535.302 Exemptions for certain modifications of effective agreements.
535.303 Husbanding agreements--exemption.
535.304 Agency agreements--exemption.
535.305 Equipment interchange agreements--exemption.
535.306 Nonexclusive transshipment agreements--exemption.
535.307 Agreements between or among wholly-owned subsidiaries and/or 
          their parent--exemption.
535.308 Marine terminal agreements--exemption.
535.309 Marine terminal services agreements--exemption.
535.310 Marine terminal facilities agreements--exemption.
535.311 Low market share agreements--exemption.
535.312 Vessel charter party--exemption.

                     Subpart D_Filing of Agreements

535.401 General requirements.
535.402 Complete and definite agreements.
535.403 Form of agreements.
535.404 Agreement provisions.
535.405 Organization of conference agreements.
535.406 Modification of agreements.
535.407 Application for waiver.
535.408 Activities that may be conducted without further filings.

                 Subpart E_Information Form Requirements

535.501 General requirements.
535.502 Agreements subject to the Information Form requirements.
535.503 Information Form.
535.504 Application for waiver.

                     Subpart F_Action on Agreements

535.601 Preliminary review--rejection of agreements.
535.602 Federal Register notice.
535.603 Comment.
535.604 Waiting period.
535.605 Requests for expedited review.
535.606 Requests for additional information.
535.607 Failure to comply with requests for additional information.
535.608 Confidentiality of submitted material.
535.609 Negotiations.

                    Subpart G_Reporting Requirements

535.701 General requirements.
535.702 Agreements subject to Monitoring Report and alternative periodic 
          reporting requirements.
535.703 Monitoring Report form.
535.704 Filing of minutes.
535.705 Application for waiver.

              Subpart H_Mandatory and Prohibited Provisions

535.801 Independent action.
535.802 Service contracts.
535.803 Ocean freight forwarder compensation.

                           Subpart I_Penalties

535.901 Failure to file.
535.902 Falsification of reports.

                      Subpart J_Paperwork Reduction

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

Appendix A to Part 535--Information Form and Instructions
Appendix B to Part 535--Monitoring Report and Instructions

    Authority: 5 U.S.C. 553; 46 U.S.C. 1701-1707, 1709-1710, 1712 and 
1714-1718; Pub. L. 105-258, 112 Stat. 1902 (46 U.S.C. 1701 note); Sec. 
424, Pub. L. 105-383, 112 Stat. 3440.

    Source: 69 FR 64414, Nov. 4, 2004, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 535.101  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), sections 
2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 15, 16, 17, and 19 of the Shipping Act 
of 1984 (``the Act''), and the Ocean Shipping Reform Act of 1998, Pub. 
L. 105-258, 112 Stat. 1902.

[[Page 203]]



Sec. 535.102  Purpose.

    This part implements those provisions of the Act that govern 
agreements by or among ocean common carriers and agreements 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. 535.103  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.
    (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 types of agreements that must be 
accompanied by information submissions when they are first filed, and 
sets forth the kind of information for certain agreements that the 
Commission believes relevant to that review. Only information that 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) 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 commercial relationships and provide efficient and economic 
transportation systems.
    (d) The Act itself excludes certain agreements from the filing 
requirements and authorizes the Commission to exempt other classes of 
agreements from any requirement of the Act or this part. To minimize 
delay in the implementation of routine agreements and to avoid the 
private and public cost of unnecessary regulation, certain classes of 
agreements are exempt from the filing requirements of this part.
    (e) Under the regulatory framework established by the Act, the role 
of the Commission as a monitoring 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 their 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 agreements that 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 
information that is necessary to assure that the Commission's monitoring 
responsibilities will be fulfilled is requested.
    (f) The Act requires that conference agreements contain certain 
mandatory provisions. Each conference 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.
    (g) To promote competitive and efficient transportation and a 
greater reliance on the marketplace, the Act places limits on carriers' 
agreements regarding service contracts. Carriers may not enter into an 
agreement to

[[Page 204]]

prohibit or restrict members from engaging in contract negotiations, may 
not require members to disclose service contract negotiations or terms 
and conditions (other than those required to be published), and may not 
adopt mandatory rules or requirements affecting the right of an 
agreement member or agreement members to negotiate and enter into 
contracts. However, agreement members may adopt voluntary guidelines 
covering the terms and procedures of members' contracts.



Sec. 535.104  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.
    (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, that provides 
for 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 rationalization means a concerted reduction, 
stabilization, withholding, or other limitation in any manner whatsoever 
by ocean common carriers on the size or number of vessels or available 
space offered collectively or individually to shippers in any trade or 
service.
    (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, except that the term does 
not include a common carrier engaged in ocean transportation by ferry 
boat, ocean tramp, or chemical parcel tanker, or by a vessel when 
primarily engaged in the carriage of perishable agricultural 
commodities:
    (i) If the common carrier and the owner of those commodities are 
wholly owned, directly or indirectly, by a person primarily engaged in 
the marketing and distribution of those commodities; and
    (ii) Only with respect to those commodities.
    (g) Conference agreement means an agreement between or among two or 
more ocean common carriers that provides for the fixing of and adherence 
to uniform tariff rates, charges, practices, and conditions of service 
relating to the receipt, carriage, handling and/or delivery of 
passengers or cargo for all members. 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 that 
establishes exclusive, preferential, or cooperative working 
relationships that are subject to the Act, but that do not fall 
precisely within the parameters of any specifically defined agreement.
    (j) Effective agreement means an agreement effective under the Act.

[[Page 205]]

    (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 ocean 
common carriers associate for the purpose of gaining reciprocal access 
to cargo that 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 of the conference agreement 
and/or the conference's properly promulgated tariffs, rules, or 
regulations by any member of the conference.
    (m) Information Form means the form containing economic information 
that must accompany the filing of certain agreements and modifications.
    (n) Interconference agreement means an agreement between 
conferences.
    (o)(1) Joint service agreement means an agreement between ocean 
common carriers operating as a joint venture whereby a separate service 
is established that:
    (i) Holds itself out in its own distinct operating name;
    (ii) Independently fixes its own rates, charges, practices, and 
conditions of service or chooses to participate under its operating name 
in another agreement that is duly authorized to determine and implement 
such activities;
    (iii) Independently publishes its own tariff or chooses to 
participate under its operating name in an otherwise established tariff;
    (iv) Issues its own bills of lading; and
    (v) Acts generally as a single carrier.
    (2) The common use of facilities in a joint service may occur, and 
there is no competition between members for cargo 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, or in 
connection with a common carrier and a water carrier subject to 
subchapter II of chapter 135 of title 49 U.S.C. 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 or water carrier.
    (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 multi-employer bargaining group, or an 
agreement specifically implementing provisions of such a collective-
bargaining agreement or providing for the formation, financing or 
administration of a multi-employer 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 that must be filed at defined intervals with regard to 
certain agreements that are effective under the Act.
    (u) Ocean common carrier means a common carrier that operates, for 
all

[[Page 206]]

or part of its common carrier service, a vessel 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.
    (v) Ocean freight forwarder means a person in the United States that 
dispatches shipments from the United States via common carriers and 
books or otherwise arranges space for those shipments on behalf of 
shippers; and processes the documentation or performs related activities 
incident to those shipments.
    (w) Person means individuals, corporations, partnerships and 
associations existing under or authorized by the laws of the United 
States or of a foreign country.
    (x) Pooling agreement means an agreement between ocean common 
carriers that provides for the division of cargo carryings, earnings, or 
revenue and/or losses between the members in accordance with an 
established formula or scheme.
    (y) 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.
    (z) 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.
    (aa) Rate agreement means an agreement between ocean common carriers 
that authorizes the discussion of or agreement on, either on a binding 
basis under a common tariff or on a non-binding basis, any kind of rate 
or charge.
    (bb) Sailing agreement means an agreement between ocean common 
carriers to provide service by establishing a schedule of ports that 
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 
rationalization agreements.
    (cc) Service contract means a written contract, other than a bill of 
lading or a receipt, between one or more shippers and an individual 
ocean common carrier or an agreement between or among ocean common 
carriers in which the shipper or shippers makes a commitment to provide 
a certain volume or portion of cargo over a fixed time period, and the 
ocean common carrier or the agreement commits to a certain rate or rate 
schedule and 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 any 
party.
    (dd) Shipper means:
    (1) A cargo owner;
    (2) The person for whose account the ocean transportation is 
provided;
    (3) The person to whom delivery is to be made;
    (4) A shippers' association; or
    (5) A non-vessel-operating common carrier (i.e., 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) that accepts responsibility for payment of all charges 
applicable under the tariff or service contract.
    (ee) 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.
    (ff) 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.

[[Page 207]]

    (gg) Space charter agreement means an agreement between ocean common 
carriers whereby a carrier (or carriers) agrees to provide vessel space 
for use by 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 
rationalization as defined in this subpart.
    (hh) Sub-trade means the scope of ocean liner cargo carried between 
each U.S. port range and each foreign country within the scope of the 
agreement. U.S. port ranges are defined as follows:
    (1) Atlantic and Gulf shall encompass ports along the eastern 
seaboard and the Gulf of Mexico from the northern boundary of Maine to 
Brownsville, Texas. It also includes all ports bordering on the Great 
Lakes and their connecting waterways, all ports in the State of New York 
on the St. Lawrence River, and all ports in Puerto Rico and the U.S. 
Virgin Islands; and
    (2) Pacific shall encompass all ports in the States of Alaska, 
Hawaii, California, Oregon, and Washington. It also includes all ports 
in Guam, American Samoa, Northern Marianas, Johnston Island, Midway 
Island, and Wake Island.
    (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 and the publishing carrier performs the 
transportation on one leg of the through transportation on its own 
vessel or on a vessel on which it has rights to space under a filed and 
effective agreement. 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 that involves the movement of cargo 
in a domestic 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 Act and 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.



                             Subpart B_Scope



Sec. 535.201  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 exclusive, preferential, or cooperative working 
arrangements among themselves or with one or more marine terminal 
operators;
    (6) Control, regulate, or prevent competition in international ocean 
transportation; or

[[Page 208]]

    (7) Discuss and agree on any matter related to service contracts.
    (b) Marine terminal operator agreements. This part applies to 
agreements among marine terminal operators and among one or more marine 
terminal operators and one or more ocean carriers to:
    (1) Discuss, fix, or regulate rates or other conditions of service; 
or
    (2) Engage in exclusive, preferential, or cooperative working 
arrangements, to the extent that such agreements involve ocean 
transportation in the foreign commerce of the United States.



Sec. 535.202  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; and
    (e) Any agreement among marine terminal operators that exclusively 
and solely involves transportation in the interstate commerce of the 
United States.



                          Subpart C_Exemptions



Sec. 535.301  Exemption procedures.

    (a) Authority. The Commission, upon application or its own motion, 
may by order or rule exempt for the future any class of agreement 
involving ocean common carriers and/or marine terminal operators from 
any requirement of the Act if it finds that the exemption will not 
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 file such an agreement with the Commission.
    (c) Application for exemption. Applications for exemptions shall 
conform to the general filing requirements for exemptions set forth at 
Sec. 502.67 of this title.
    (d) Retention of agreement by parties. Any agreement that 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 Trade Analysis for inspection during the term of the agreement 
and for a period of three years after its termination.



Sec. 535.302  Exemptions for certain modifications of effective agreements.

    (a) Non-substantive modifications to effective agreements. A non-
substantive modification to an effective agreement between ocean common 
carriers and/or marine terminal operators, acting individually or 
through approved agreements, is one which:
    (1) 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;
    (2) Corrects typographical and grammatical errors in the text of the 
agreement or renumbers or reletters articles or sub-articles of 
agreements and references thereto in the text; or
    (3) Reflects changes in the titles of 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) Other Miscellaneous Modifications to effective agreements. A 
miscellaneous modification to an effective agreement is one that:
    (1) Cancels the agreement or a portion thereof;
    (2) Deletes an agreement party;
    (3) Changes the parties to a conference agreement or a discussion 
agreement among passenger vessel operating common carriers that is open 
to all ocean common carriers operating passenger vessels of a class 
defined in the agreements and that does not contain ratemaking, pooling, 
joint service, sailing or space chartering authority; or
    (4) Changes the officials of the agreement and delegations of 
authority.

[[Page 209]]

    (c) A copy of a modification described in (a) or (b) of this section 
shall be submitted to the Commission but is otherwise exempt from the 
waiting period requirement of the Act and this part.
    (d) Parties to agreements may seek a determination from the Director 
of the Bureau of Trade Analysis as to whether a particular modification 
is a non-substantive or other miscellaneous modification within the 
meaning of this section.
    (e) The filing fee for non-substantive or other miscellaneous 
modifications is provided in Sec. 535.401(g).



Sec. 535.303  Husbanding agreements--exemption.

    (a) A husbanding agreement is an agreement between an ocean common 
carrier and another ocean common carrier or marine terminal operator, 
acting as the former's agent, under which the agent handles 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 that 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 optional filing of husbanding agreements is 
provided in Sec. 535.401(g).



Sec. 535.304  Agency agreements--exemption.

    (a) An agency agreement is an agreement between an ocean common 
carrier and another ocean common carrier or marine terminal operator, 
acting as the former's agent, under which the agent solicits and books 
cargoes and signs contracts of affreightment and bills of lading on 
behalf of the 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 as defined above 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 ocean 
common carrier in the same trade; or
    (2) That permit an agent to enter into similar agreements with more 
than one ocean common carrier in a trade.
    (c) The filing fee for optional filing of agency agreements is 
provided in Sec. 535.401(g).



Sec. 535.305  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 optional filing of equipment interchange 
agreements is provided in Sec. 535.401(g).



Sec. 535.306  Nonexclusive transshipment agreements--exemption.

    (a) A nonexclusive transshipment agreement is a transshipment 
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:

[[Page 210]]

    (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 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 nonexclusive 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 optional filing of nonexclusive transshipment 
agreements is provided in Sec. 535.401(g).



Sec. 535.307  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 Act between or 
among an ocean common carrier or marine terminal operator subject to the 
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.

[[Page 211]]

    (b) All agreements between or among wholly-owned subsidiaries and/or 
their parent are exempt from the filing requirements of the Act and this 
part.
    (c) Ocean common carriers are exempt from section 10(c) of the 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) The filing fee for optional filing of these agreements is 
provided in Sec. 535.401(g).



Sec. 535.308  Marine terminal agreements--exemption.

    (a) Marine terminal agreement means an agreement, understanding, or 
association written or oral (including any modification or appendix) 
that applies to future, prospective activities between or among the 
parties and that 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.
    (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 
that provides for the fixing of and adherence to uniform maritime 
terminal rates, charges, practices and conditions of service relating to 
the receipt, handling, and/or delivery of passengers or cargo for all 
members.
    (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. 535.308(a), 
with the exception of marine terminal conference, marine terminal 
interconference, and marine terminal discussion agreements as defined in 
Sec. 535.308(b), (c), and (d), are exempt from the waiting period 
requirements of the Act and this part and will, accordingly, be 
effective on filing with the Commission.
    (f) The filing fee for marine terminal agreements is provided in 
Sec. 535.401(g).



Sec. 535.309  Marine terminal services agreements--exemption.

    (a) Marine terminal services agreement means an agreement, contract, 
understanding, arrangement, or association, written or oral, (including 
any modification or appendix) between a marine terminal operator and an 
ocean common carrier that applies to marine terminal services that are 
provided to and paid for by an ocean common carrier. These services 
include: checking, dockage, free time, handling, heavy lift, loading and 
unloading, terminal storage, usage, wharfage, and wharf demurrage and 
including any marine terminal facilities that may be provided 
incidentally to such marine terminal services. The term marine terminal 
services agreement does not include any agreement that 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.
    (b) All marine terminal services agreements as defined in Sec. 
535.309(a) are exempt from the filing and waiting period requirements of 
the Act and this part on condition that:
    (1) They do not include rates, charges, rules, and regulations that 
are determined through a marine terminal conference agreement, as 
defined in Sec. 535.308(b); and

[[Page 212]]

    (2) No antitrust immunity is conferred under the Act with regard to 
terminal services provided to an ocean common carrier under a marine 
terminal services agreement that is not filed with the Commission.
    (c) The filing fee for optional filing of terminal services 
agreements is provided in Sec. 535.401(g).



Sec. 535.310  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, that 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. 
535.310(a) are exempt from the filing and waiting period requirements of 
the Act and this part.
    (c) Parties to marine terminal facilities agreements currently in 
effect shall provide copies to any requesting party for a reasonable 
copying and mailing fee.
    (d) The filing fee for optional filing of terminal facilities 
agreements is provided in Sec. 535.401(g).



Sec. 535.311  Low market share agreements--exemption.

    (a) Low market share agreement means any agreement among ocean 
common carriers which contains none of the authorities listed in Sec. 
535.502(b) and for which the combined market share, based on cargo 
volume, of the parties in any of the agreement's sub-trades is either:
    (1) Less than 30 percent, if all parties are members of another 
agreement in the same trade or sub-trade containing any of the 
authorities listed in Sec. 535.502(b); or
    (2) Less than 35 percent, if at least one party is not a member of 
another agreement in the same trade or sub-trade containing any of the 
authorities listed in Sec. 535.502(b).
    (b) Low market share agreements are exempt from the waiting period 
requirement of the Act and this part, and are effective on filing.
    (c) Parties to agreements may seek a determination from the 
Director, Bureau of Trade Analysis, as to whether a proposed agreement 
meets the general definition of a low market share agreement.
    (d) The filing fee for low market share agreements is provided in 
Sec. 535.401(g).

[69 FR 64414, Nov. 4, 2004, as amended at 70 FR 20303, Apr. 19, 2005]



Sec. 535.312  Vessel charter party-exemption.

    (a) For purposes of this section, vessel charter party shall mean a 
contractual agreement between two ocean common carriers for the charter 
of the full reach of a vessel, which agreement sets forth the entire 
terms and conditions (including duration, charter hire, and geographical 
or operational limitations, if any) under which the vessel will be 
employed.
    (b) Vessel charter parties, as defined in paragraph (a) of this 
section, are exempt from the filing requirements of the Act and this 
part.
    (c) The filing fee for optional filing of vessel charter parties is 
provided in Sec. 535.401(g).



                     Subpart D_Filing of Agreements



Sec. 535.401  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, DC 20573. Such filing shall 
consist of:
    (1) A true copy and seven additional copies of the executed 
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

[[Page 213]]

    (3) A letter of transmittal as described in paragraph (b) of this 
section.
    (b) The letter of transmittal shall:
    (1) 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;
    (2) 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;
    (3) Clearly provide the typewritten or otherwise imprinted name, 
position, business address, and telephone number of the filing party; 
and
    (4) Be signed in the original by the filing party or on the filing 
party's behalf by an authorized employee or agent of the filing party.
    (c) 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.
    (d) Any agreement that does not meet the filing requirements of this 
section, including any applicable Information Form requirements, shall 
be rejected in accordance with Sec. 535.601(b).
    (e) Assessment agreements shall be filed and shall be effective upon 
filing.
    (f) 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 45-day waiting 
period required under the Act.
    (g) Fees. The filing fee is $1,780 for new agreements requiring 
Commission review and action; $851 for agreement modifications requiring 
Commission review and action; $397 for agreements processed under 
delegated authority (for types of agreements that can be processed under 
delegated authority, see Sec. 501.26(e) of this chapter); $138 for 
carrier exempt agreements; and $75 for terminal exempt agreements.
    (h) The fee for the Commission's agreement database report is $6.

[69 FR 64414, Nov. 4, 2004, as amended at 70 FR 10330, Mar. 3, 2005]



Sec. 535.402  Complete and definite agreements.

    An agreement filed under the Act must be clear and definite in its 
terms, must embody the complete, present understanding of the parties, 
and must set forth the specific authorities and conditions under which 
the parties to the agreement will conduct their operations and regulate 
the relationships among the agreement members, unless those details are 
matters specifically enumerated as exempt from the filing requirements 
of this part.



Sec. 535.403  Form of agreements.

    The requirements of this section apply to all agreements except 
marine terminal agreements and assessment agreements.
    (a) Agreements shall be clearly and legibly written. Agreements in a 
language other than English shall be accompanied by an English 
translation.
    (b) Every agreement shall include a Title Page indicating:
    (1) The full name of the agreement;
    (2) Once assigned, the Commission-assigned agreement number;
    (3) If applicable, the expiration date of the agreement; and
    (4) The original effective date of the agreement whenever the Title 
Page is revised.
    (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. For agreement 
modifications, the appropriate amendment number for each modification 
should also appear on the page along with the basic agreement number.
    (d) Each agreement and/or modification filed will be signed in the 
original by an official or authorized representative of each of the 
parties and shall indicate the typewritten full name of the signing 
party and his or her position, including organizational affiliation. 
Faxed or photocopied signatures will

[[Page 214]]

be accepted if replaced with an original signature as soon as 
practicable before the effective date.
    (e) Every agreement shall include a Table of Contents indicating the 
location of all agreement provisions.



Sec. 535.404  Agreement provisions.

    Generally, each agreement should:
    (a) Indicate the full legal name of each party, including any FMC-
assigned agreement number associated with that name, and the address of 
its principal office (not the address of any agent or representative not 
an employee of the participating party);
    (b) State the ports or port ranges to which the agreement applies as 
well as any inland points or areas to which it also applies; and
    (c) Specify, by organizational title, the administrative and 
executive officials determined by the agreement parties to be 
responsible for designated affairs of the agreement and the respective 
duties and authorities delegated to those officials. At a minimum, the 
agreement should specify:
    (1) The official(s) with authority to file the agreement and any 
modification thereto and to submit associated supporting materials; and
    (2) A statement as to any designated U.S. representative of the 
agreement required by this chapter.



Sec. 535.405  Organization of conference agreements.

    Each conference agreement shall:
    (a) 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. The agreement must 
include a description of any such neutral body authority and procedures 
related thereto.
    (b) State affirmatively that the conference parties shall not engage 
in conduct prohibited by sections 10(c)(1) or 10(c)(3) of the Act.
    (c) Specify the procedures for consultation with shippers and for 
handling shippers' requests and complaints.
    (d) Include provisions for independent action in accordance with 
Sec. 535.801 of this part.



Sec. 535.406  Modification of agreements.

    The requirements of this section apply to all agreements except 
marine terminal agreements and assessment agreements.
    (a) Agreement modifications shall be filed in accordance with the 
provisions of Sec. Sec. 535.401, 535.402, and 535.403.
    (b) Agreement modifications shall be made by reprinting the entire 
page on which the matter being changed is published (``revised page''). 
The revised page shall indicate the consecutive denomination of the 
revision (e.g., ``1st Revised Page 7''). Additional material may be 
published on a new original page. New original pages inserted between 
existing effective pages shall be numbered with an alpha suffix (e.g., a 
page inserted between page 7 and page 8 shall be numbered 7a).
    (c) Each revised page shall be accompanied by a duplicate page, 
submitted for illustrative purposes only, indicating the language being 
modified in the following manner:
    (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.
    (d) If a modification requires the relocation of the provisions of 
the agreement, such modification shall be accompanied by a revised Table 
of Contents page that shall indicate the new location of the provisions.



Sec. 535.407  Application for waiver.

    (a) Upon a showing of good cause, the Commission may waive the 
requirements of Sec. Sec. 535.401, 535.403, 535.404, 535.405, and 
535.406.
    (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 review of the agreement.

[[Page 215]]



Sec. 535.408  Activities that may be conducted without further filings.

    (a) Agreements that arise from authority of an effective agreement 
but whose terms are not fully set forth in the effective agreement to 
the extent required by Sec. 535.402 are permitted without further 
filing only if they:
    (1) Are themselves exempt from the filing requirements of this part 
(pursuant to subpart C--Exemptions of this part); or
    (2) Are listed in paragraph (b) of this section.
    (b) Unless otherwise exempt in subpart C of this part, only the 
following technical or operational matters of an agreement's affairs 
established pursuant to express enabling authority in an agreement are 
considered part of the effective agreement and do not require further 
filing under section 5 of the Act:
    (1) Establishment of tariff rates, rules and regulations and their 
joint publication;
    (2) The terms and conditions of space allocation and slot sales, the 
procedures for allocating space, the establishment of space charter 
rates, and the terms and conditions of charter parties;
    (3) Stevedoring, terminal, and related services including the 
operation of tonnage centers or other joint container marshaling 
facilities;
    (4) The following administrative matters:
    (i) Scheduling of agreement meetings;
    (ii) Collection, collation and circulation of data and reports from 
or to members;
    (iii) Procurement, maintenance, or sharing of office facilities, 
furnishings, equipment and supplies, the allocation and assessment of 
costs thereof, or the provisions for the administration and management 
of such agreements by duly appointed individuals;
    (iv) Procedures for anticipating parties' space requirements;
    (v) Maintenance of books and records; and
    (vi) Details as to the following matters as between parties to the 
agreement: insurance, procedures for resolutions of disputes relating to 
loss and/or damage of cargo, and force majeure clauses;
    (5) The following operational matters:
    (i) Port rotations and schedule adjustments; and
    (ii) Changes in vessel size, number of vessels, or vessel 
substitution or replacement, if the resulting change is within a 
capacity range specified in the agreement; and
    (6) Neutral body policing (limited to the description of neutral 
body authority and procedures related thereto).



                 Subpart E_Information Form Requirements



Sec. 535.501  General requirements.

    (a) Agreements and modifications to agreements identified in Sec. 
535.502 shall be accompanied by an Information Form containing 
information and data on the agreement and the parties' authority under 
the agreement.
    (b) Parties to an agreement subject to this subpart shall complete 
and submit an original and five copies of the Information Form at the 
time the agreement is filed. A copy of the Form in Microsoft Word and 
Excel format may be downloaded from the Commission's home page at http:/
/www.fmc.gov, or a paper copy of the Form may be obtained from the 
Bureau of Trade Analysis. In lieu of submitting paper copies, parties 
may complete and submit their Information Form in the Commission's 
prescribed electronic format, either on diskette or CD-ROM.
    (c) A complete response in accordance with the instructions on the 
Information Form shall be supplied to each item. If a party to the 
agreement 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 statement of reasons for noncompliance 
and the efforts made to obtain the required information.
    (d) Agreement parties may supplement the Information Form with any 
additional information or material to assist the Commission's review of 
an agreement.
    (e) The Information Form and any additional information submitted in

[[Page 216]]

conjunction with the filing of an agreement shall not be disclosed by 
the Commission except as provided in Sec. 535.608.



Sec. 535.502  Agreements subject to the Information Form requirements.

    Agreements and modifications to agreements between or among ocean 
common carriers subject to this subpart are:
    (a) All agreements identified in Sec. 535.201(a), except for low 
market share agreements identified in Sec. 535.311;
    (b) Modifications to an agreement that add any of the following 
authorities:
    (1) The discussion of, or agreement upon, whether on a binding basis 
under a common tariff or a non-binding basis, any kind of rate or 
charge;
    (2) The discussion of, or agreement on, capacity rationalization;
    (3) The establishment of a joint service;
    (4) The pooling or division of cargo traffic, earnings, or revenues 
and/or losses; or
    (5) The discussion of, or agreement on, any service contract matter; 
and
    (c) Modifications that expand the geographic scope of an agreement 
containing any authority identified in Sec. 535.502(b).



Sec. 535.503  Information Form.

    (a) The Information Form, with instructions, for agreements and 
modifications to agreements subject to this subpart, are set forth in 
sections I through V of appendix A of this part. The instructions should 
be read in conjunction with the Act and this part.
    (b) The Information Form shall apply as follows:
    (1) Sections I and V shall be completed by parties to all agreements 
identified in Sec. 535.502;
    (2) Section II shall be completed by parties to agreements 
identified in Sec. 535.502(a) that contain any of the following 
authorities: the charter or use of vessel space in exchange for 
compensation or services; or the rationalization of sailings or services 
relating to a schedule of ports, the frequency of vessel calls at ports, 
or the size and capacity of vessels for deployment. Such authorities do 
not include the establishment of a joint service, nor capacity 
rationalization;
    (3) Section III shall be completed by parties to agreements 
identified in Sec. 535.502 that contain the authority to discuss or 
agree on capacity rationalization; and
    (4) Section IV shall be completed by parties to agreements 
identified in Sec. 535.502 that contain any of the following 
authorities:
    (i) The discussion of, or agreement upon, whether on a binding basis 
under a common tariff or a non-binding basis, any kind of rate or 
charge;
    (ii) The establishment of a joint service;
    (iii) The pooling or division of cargo traffic, earnings, or 
revenues and/or losses; or
    (iv) The discussion of, or agreement on, any service contract 
matter.



Sec. 535.504  Application for waiver.

    (a) Upon a showing of good cause, the Commission may waive any part 
of the Information Form requirements in this subpart.
    (b) A request for such a waiver must be submitted and approved by 
the Commission in advance of the filing of the Information Form to which 
the requested waiver would apply. Requests for a waiver shall be 
submitted in writing to the Director, Bureau of Trade Analysis, Federal 
Maritime Commission, Washington, DC 20573-0001, and shall state:
    (1) The specific requirements from which relief is sought;
    (2) The special circumstances requiring the requested relief;
    (3) Relevant trade and industry data and information to substantiate 
and support the special circumstances requiring the requested relief;
    (4) Why granting the requested waiver will not substantially impair 
effective review of the agreement; and
    (5) A description of the full membership, geographic scope, and 
authority of the agreement or the agreement modification that is to be 
filed with the Commission.
    (c) The Commission may take into account the presence or absence of 
shipper complaints as well as the past compliance of the agreement 
parties with any reporting requirement under

[[Page 217]]

this part in considering an application for a waiver.



                     Subpart F_Action on Agreements



Sec. 535.601  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 
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. 535.504.
    (b)(1) The Commission shall reject any agreement that fails to 
comply substantially with the filing and Information Form of the Act and 
this part. The Commission shall notify the filing party in writing of 
the reason for rejection of the agreement. The original filing, along 
with any supplemental information or documents submitted, shall be 
returned to the filing party.
    (2) Should a rejected agreement be refiled, the full 45-day waiting 
period will apply to the refiled agreement.



Sec. 535.602  Federal Register notice.

    (a) A notice of any filed agreement 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.



Sec. 535.603  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) A 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 that may be instituted.



Sec. 535.604  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 section 6(d) of the Act. A new 45-day 
waiting period begins on the date of receipt of all the additional 
material requested or of a statement of the reasons for noncompliance, 
and the agreement becomes effective in 45 days unless the waiting period 
is further extended by court order or the Commission grants expedited 
review.

[[Page 218]]



Sec. 535.605  Requests for expedited review.

    (a) Upon written request of the filing party, the Commission may 
shorten the waiting period. In support of a request, the filing party 
should provide a full explanation, with reference to specific facts and 
circumstances, of the necessity for a shortened waiting period. In 
reviewing requests, the Commission will consider the parties' needs and 
the Commission's ability to complete its review of the agreement's 
potential impact. In no event, however, may the period be shortened to 
less than fourteen (14) days after the publication of the notice of the 
filing of the agreement in the Federal Register. When a request for 
expedited review is denied, the normal 45-day waiting period will apply. 
Requests for expedited review will not be granted routinely and will be 
granted only on a showing of good cause. Good cause would include, but 
is not limited to, the impending expiration of the agreement; an 
operational urgency; Federal or State imposed time limitations; or other 
reasons that, in the Commission's discretion, constitute grounds for 
granting the request.
    (b) A request for expedited review will be considered for an 
agreement whose 45-day waiting period has begun anew after being stopped 
by a request for additional information.



Sec. 535.606  Requests for additional information.

    (a) The Commission may request from the filing party any additional 
information and documents necessary to complete the statutory review 
required by the Act. The request shall be made prior to the expiration 
of the 45-day waiting period. All responses to a request for additional 
information shall be submitted to the Director, Bureau of Trade 
Analysis, Federal Maritime Commission, Washington, DC 20573.
    (b) Where the Commission has made a request for additional 
information, the agreement's effective date will be 45 days after 
receipt of the complete response to the request for additional 
information. If all questions are not fully answered or requested 
documents are not supplied, the parties must include a statement of 
reasons why questions were not fully answered or documents supplied. In 
the event all material is not submitted, the agreement's effective date 
will be 45 days after receipt of both the documents and information 
which are submitted, if any, and the statement indicating the reasons 
for noncompliance. The Commission may, upon notice to the Attorney 
General, and pursuant to sections 6(i) and 6(k) of the Act, request the 
United States District Court for the District of Columbia to further 
extend the agreement's effective date until there has been substantial 
compliance.
    (c) A request for additional information may be made orally or in 
writing. In the case of an oral request, a written confirmation of the 
request shall be mailed to the filing party within seven days of the 
oral request.
    (d) The Commission will publish a notice in the Federal Register 
that it has requested additional information and serve that notice on 
any commenting parties. The notice will indicate only that a request was 
made and will not specify what information is being sought. Interested 
parties will have fifteen (15) days after publication of the notice to 
file further comments on the agreement.



Sec. 535.607  Failure to comply with requests for additional information.

    (a) A failure to comply with a request for additional information 
results when a person filing an agreement, or an officer, director, 
partner, agent, or employee thereof fails to substantially respond to 
the request or does not file a satisfactory statement of reasons for 
noncompliance. An adequate response is one which directly addresses the 
Commission's request. When a response is not received by the Commission 
within a specified time, failure to comply will have occurred.
    (b) The Commission may, pursuant to section 6(i) of the Act, request 
relief from the United States District Court for the District of 
Columbia when it considers that there has been a failure to 
substantially comply with a request for additional information. The 
Commission may request that the court:
    (1) Order compliance with the request;

[[Page 219]]

    (2) Extend the review period until there has been substantial 
compliance; or
    (3) Grant other equitable relief that under the circumstances seems 
necessary or appropriate.
    (c) Where there has been a failure to substantially comply, section 
6(i)(2) of the Act provides that the court shall extend the review 
period until there has been substantial compliance.



Sec. 535.608  Confidentiality of submitted material.

    (a) Except for an agreement filed under section 5 of the Act, all 
information submitted to the Commission by the filing party will be 
exempt from disclosure under 5 U.S.C. 552. Included in this disclosure 
exemption is information provided in the Information Form, voluntary 
submission of additional information, reasons for noncompliance, and 
replies to requests for additional information.
    (b) Information that is confidential pursuant to paragraph (a) of 
this section may be disclosed, however, to the extent:
    (1) It is relevant to an administrative or judicial action or 
proceeding; or
    (2) It is disclosed to either body of Congress or to a duly 
authorized committee or subcommittee of Congress.
    (c) Parties may voluntarily disclose or make information publicly 
available. If parties elect to disclose information they shall promptly 
inform the Commission.



Sec. 535.609  Negotiations.

    At any time after the filing of an agreement and prior to the 
conclusion of judicial injunctive proceedings, the filing party or an 
authorized representative may submit additional factual or legal support 
for an agreement or may propose modifications of an agreement. Such 
negotiations between Commission personnel and filing parties may 
continue during the pendency of injunctive proceedings. Shippers, other 
government departments or agencies, and other third parties may not 
participate in these negotiations.



                    Subpart G_Reporting Requirements



Sec. 535.701  General requirements.

    (a) Parties to agreements identified in Sec. 535.702(a) shall 
submit quarterly Monitoring Reports on an ongoing basis for as long as 
the agreement remains in effect, containing information and data on the 
agreement and the parties' authority under the agreement.
    (b) Parties to agreements identified in Sec. 535.704 are required 
to submit minutes of their meetings for as long as their agreements 
remain in effect.
    (c) If a joint service is a party to an agreement that is subject to 
the requirements of this subpart, the joint service shall be treated as 
one member of that agreement for purposes of that agreement's Monitoring 
Reports.
    (d) Monitoring Reports and minutes required to be filed by this 
subpart should be submitted to: Director, Bureau of Trade Analysis, 
Federal Maritime Commission, Washington, DC 20573-0001. A copy of the 
Monitoring Report form in Microsoft Word and Excel format may be 
downloaded from the Commission's home page at http://www.fmc.gov, or a 
paper copy may be obtained from the Bureau of Trade Analysis. In lieu of 
submitting paper copies, parties may complete and submit their 
Monitoring Reports in the Commission's prescribed electronic format, 
either on diskette or CD-ROM.
    (e)(1) The regulations in this paragraph (e) are stayed until 
further notice.
    (2) Reports and minutes required to be filed by this subpart may be 
filed by direct electronic transmission in lieu of hard copy. Detailed 
information on electronic transmission is available from the 
Commission's Bureau of Trade Analysis. Certification and signature 
requirements of this subpart can be met on electronic transmissions 
through use of a pre-assigned Personal Identification Number (PIN) 
obtained from the Commission. PINs can be obtained by submission by an 
official of the filing party of a statement to the Commission agreeing 
that inclusion of the PIN in the transmission constitutes the signature 
of the official. Only one PIN will be issued for each agreement. Where a 
filing party has

[[Page 220]]

more than one official authorized to file minutes or reports, each 
additional official must submit such a statement countersigned by the 
principal official of the filing party. Each filing official will be 
issued a unique password. A PIN or designation of authorized filing 
officials may be canceled or changed at any time upon the written 
request of the principal official of the filing party. Direct electronic 
transmission filings may be made at any time except between the hours of 
8:30 a.m. and 2 p.m. Eastern time on Commission business days.
    (f) Time for filing. Except as otherwise instructed, Monitoring 
Reports shall be filed within 75 days of the end of each calendar 
quarter. Minutes of meetings shall be filed within 21 days after the 
meeting. Other documents shall be filed within 15 days of the receipt of 
a request for documents.
    (g) A complete response in accordance with the instructions on the 
Monitoring Report shall be supplied to each item. If a party to an 
agreement 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 statement of reasons for noncompliance 
and the efforts made to obtain the required information.
    (h) A Monitoring Report for a particular agreement may be 
supplemented with any other relevant information or documentary 
material.
    (i) Confidentiality. (1) The Monitoring Reports, minutes, and any 
other additional information submitted by a particular agreement will be 
exempt from disclosure under 5 U.S.C. 552, except to the extent:
    (i) It is relevant to an administrative or judicial action or 
proceeding; or
    (ii) It is disclosed to either body of Congress or to a duly 
authorized committee or subcommittee of Congress.
    (2) Parties may voluntarily disclose or make Monitoring Reports, 
minutes or any other additional information publicly available. The 
Commission must be promptly informed of any such voluntary disclosure.
    (j) Monitoring Report or alternative periodic reporting requirements 
in this subpart shall not be construed to authorize the exchange or use 
by or among agreement members of information required to be submitted.

    Effective Date Note: At 69 FR 64414, Nov. 4, 2004, paragraph (e) of 
Sec. 535.701 was stayed indefinitely.



Sec. 535.702  Agreements subject to Monitoring Report and alternative
periodic reporting requirements.

    (a) Agreements subject to the Monitoring Report requirements of this 
subpart are:
    (1) An agreement that contains the authority to discuss or agree on 
capacity rationalization; or
    (2) Where the parties to an agreement hold a combined market share, 
based on cargo volume, of 35 percent or more in the entire U.S. inbound 
or outbound geographic scope of the agreement and the agreement contains 
any of the following authorities:
    (i) The discussion of, or agreement upon, whether on a binding basis 
under a common tariff or a non-binding basis, any kind of rate or 
charge;
    (ii) The establishment of a joint service;
    (iii) The pooling or division of cargo traffic, earnings, or 
revenues and/or losses; or
    (iv) The discussion of, or agreement on, any service contract 
matter.
    (b) The determination of an agreement's reporting obligation under 
Sec. 535.702(a)(2) in the first instance shall be based on the market 
share data reported on the agreement's Information Form pursuant to 
Sec. 535.503. Thereafter, at the beginning of each calendar year, the 
Bureau of Trade Analysis will notify the agreement parties of any 
changes in its reporting requirements based on market share data 
reported on the agreement's quarterly Monitoring Report for the previous 
second quarter (April-June).
    (c) The Commission may require, as necessary, that the parties to an 
agreement with market share below the 35 percent threshold, as 
identified and defined in Sec. 535.702(a)(2), submit Monitoring Reports 
pursuant to Sec. 535.703.
    (d) In addition to or instead of the Monitoring Report in Sec. 
535.703, the Commission may prescribe, as necessary, alternative 
periodic reporting requirements for parties to any agreement identified 
in Sec. 535.201.

[[Page 221]]



Sec. 535.703  Monitoring Report form.

    (a) For agreements subject to the Monitoring Report requirements in 
Sec. 535.702(a), the Monitoring Report form, with instructions, is set 
forth in sections I through III of appendix B of this part. The 
instructions should be read in conjunction with the Act and this part.
    (b) The Monitoring Report shall apply as follows:
    (1) Section I shall be completed by parties to agreements identified 
in Sec. 535.702(a)(1);
    (2) Section II shall be completed by parties to agreements 
identified in Sec. 535.702(a)(2); and
    (3) Section III shall be completed by parties to all agreements 
identified in Sec. 535.702(a).
    (c) In accordance with the requirements and instructions in appendix 
B of this part, parties to an agreement subject to part 2(C) of section 
I of the Monitoring Report shall submit a narrative statement on any 
significant reductions in vessel capacity that the parties will 
implement under the agreement. The term ``a significant reduction'' is 
defined in appendix B. The narrative statement shall be submitted to the 
Director, Bureau of Trade Analysis, no later than 15 days after a 
significant reduction in vessel capacity has been agreed upon by the 
parties but prior to the implementation of the actual reduction under 
the agreement.
    (d)(1) The Commission may require, in its discretion, that the 
information on the top agreement commodities in part 4 of section II of 
the Monitoring Report be reported on a sub-trade basis, as defined in 
appendix B of this part, rather than on an agreement-wide basis. When 
commodity sub-trade information is required under this section, the 
Commission shall notify the parties to the agreement.
    (2) For purposes of Sec. 535.703(d)(1), the top agreement 
commodities shall mean the top 10 liner commodities (including 
commodities not subject to tariff publication) carried by all the 
agreement parties in each sub-trade within the geographic scope of the 
agreement during the calendar quarter. Where the agreement covers both 
U.S. inbound and outbound liner movements, inbound and outbound sub-
trades shall be stated separately. All other instructions, definitions, 
and terms shall apply as specified and required in appendix B of this 
part.



Sec. 535.704  Filing of minutes.

    (a) Agreements required to file minutes. (1) This section applies to 
agreements authorized to engage in any of the following activities: 
discussion or establishment of any type of rates or charges, whether in 
tariffs or service contracts; pooling or apportionment of cargo traffic; 
discussion of revenues, losses, or earnings; or discussion or agreement 
on service contract matters, including the establishment of voluntary 
service contract guidelines.
    (2) Each agreement to which this section applies shall file with the 
Commission, through a designated official, minutes of all meetings 
defined in paragraph (b) of this section, except as provided in 
paragraph (d) of this section.
    (b) Meetings. For purposes of this subpart, the term meeting shall 
include all discussions at which any agreement is reached among any 
number of the parties to an agreement relating to the business of the 
agreement, and all other discussions among three or more members of the 
agreement (or all members if fewer than three) relating to the business 
of the agreement. This includes, but is not limited to, meetings of the 
members' agents, principals, owners, officers, employees, 
representatives, committees, or subcommittees, and communications among 
members facilitated by agreement officials. Discussions conducted by 
telephone, electronic device, or other means are included.
    (c) Content of minutes. Minutes shall include the following:
    (1) The date, time, and place of the meeting;
    (2) A list of participants and companies represented;
    (3) A description of discussions detailed enough so that a non-
participant reading the minutes could reasonably gain a clear 
understanding of the nature and extent of the discussions and, where 
applicable, any decisions reached. Such description need not disclose 
the identity of the parties that

[[Page 222]]

participated in the discussion or the votes taken; and
    (4) Any report, circular, notice, statistical compilation, 
analytical study, survey, or other work distributed, discussed, or 
exchanged at the meeting, whether presented by oral, written, 
electronic, or other means. Where the aforementioned materials are 
reasonably available to the public, a citation to the work or relevant 
part thereof is acceptable in lieu of the actual work. Any documents 
submitted to the Commission pursuant to this section need not disclose 
the identity of the party or parties that circulated the document at the 
meeting.
    (d) Exemption. For parties to agreements subject to this section, 
the following exemptions shall apply:
    (1) Minutes of meetings between parties are not required to reflect 
discussions of matters set forth in Sec. 535.408(b)(2), (b)(3), 
(b)(4)(iii), (b)(4)(iv), (b)(4)(v), and (b)(4)(vi);
    (2) Minutes of meetings between parties are not required to reflect 
discussion of matters set forth in Sec. 535.408(b)(5) to the extent 
that such discussions involve minor operational matters that have little 
or no impact on the frequency of vessel calls at ports or the amount of 
vessel capacity offered by the parties in the geographic scope of the 
agreement; and
    (3) Minutes of meetings between parties are not required to reflect 
discussions of or actions taken with regard to rates that, if adopted, 
would be required to be published in an appropriate tariff. This 
exemption does not apply to discussions concerning general rate policy, 
general rate changes, the opening or closing of rates, service 
contracts, or time/volume rates.
    (e) Serial numbers. Each set of minutes filed with the Commission 
shall include the agreement name and FMC number and a unique 
identification number indicating the sequence in which the meeting took 
place during the calendar year.

[69 FR 64414, Nov. 4, 2004, as amended at 70 FR 20303, Apr. 19, 2005]



Sec. 535.705  Application for waiver.

    (a) Upon a showing of good cause, the Commission may waive any 
requirement of this subpart.
    (b) A request for such a waiver must be submitted and approved by 
the Commission in advance of the filing of the Monitoring Report or 
minutes to which the requested waiver would apply. Requests for a waiver 
shall be submitted in writing to the Director, Bureau of Trade Analysis, 
Federal Maritime Commission, Washington, DC 20573-0001, and shall state 
and provide the following:
    (1) The specific requirements from which relief is sought;
    (2) The special circumstances requiring the requested relief;
    (3) Relevant trade and industry data and information to substantiate 
and support the special circumstances requiring the requested relief; 
and
    (4) Why granting the requested waiver will not substantially impair 
effective monitoring of the agreement.
    (c) The Commission may take into account the presence or absence of 
shipper complaints as well as the past compliance of the agreement 
parties with any reporting requirement under this part in considering an 
application for a waiver.



              Subpart H_Mandatory and Prohibited Provisions



Sec. 535.801  Independent action.

    (a) Each conference agreement shall specify the independent action 
(``IA'') procedures of the conference, which shall provide that any 
conference member may take independent action on any rate or service 
item upon not more than 5 calendar days' notice to the conference and 
shall otherwise be in conformance with section 5(b)(8) of the Act.
    (b)(1) Each conference agreement that provides for a period of 
notice for independent action shall establish a fixed or maximum period 
of notice to the conference. A conference agreement shall not require or 
permit a conference member to give more than 5 calendar days' notice to 
the conference, except that in the case of a new or increased rate the 
notice period shall conform to the tariff publication requirements of 
this chapter.
    (2) A conference agreement shall not prescribe notice periods for 
adopting, withdrawing, postponing, canceling, or

[[Page 223]]

taking other similar actions on independent actions.
    (c) Each conference agreement shall indicate the conference 
official, single designated representative, or conference office to 
which notice of independent action is to be provided. A conference 
agreement shall not require notice of independent action to be given by 
the proposing member to the other parties to the agreement.
    (d) A conference agreement shall not require a member who proposes 
independent action to attend a conference meeting, to submit any further 
information other than that necessary to accomplish the publication of 
the independent tariff item, or to comply with any other procedure for 
the purpose of explaining, justifying, or compromising the proposed 
independent action.
    (e) A conference agreement shall specify that any new rate or 
service item proposed by a member under independent action (except for 
exempt commodities not published in the conference tariff) shall be 
included by the conference in its tariff for use by that member 
effective no later than 5 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.
    (f)(1) As it pertains to this part, ``adopt'' means the assumption 
in identical form of an originating member's independent action rate or 
service item, or a particular portion of such a rate or service item. If 
a carrier adopts an IA at a lower rate than the conference rate when 
there is less than 30 days remaining on the original IA, the adopted IA 
should be made to expire 30 days after its effectiveness to comply with 
the statutory 30-day notice requirement. In the case of an independent 
action time/volume rate (``IA TVR''), the dates of the adopting IA may 
vary from the dates of the original IA, so long as the duration of the 
adopting IA is the same as that of the originating IA. Furthermore, no 
term other than ``adopt'' (e.g., ``follow,'' ``match'') can be used to 
describe the action of assuming as one's own an initiating carrier's IA. 
Additionally, if a party to an agreement chooses to take on an IA of 
another party, but alters it, such action is considered a new IA and 
must be published pursuant to the IA publication and notice provisions 
of the applicable agreement.
    (2) An IA TVR published by a member of a ratemaking agreement may be 
adopted by another member of the agreement, provided that the adopting 
member takes on the original IA TVR in its entirety without change to 
any aspect of the original rate offering (except beginning and ending 
dates in the time period) (i.e., a separate TVR with a separate volume 
of cargo but for the same duration). Any subsequent IA TVR offering that 
results in a change in any aspect of the original IA TVR, other than the 
name of the offering carrier or the beginning date of the adopting IA 
TVR, is a new independent action and shall be processed in accordance 
with the provisions of the applicable agreement. The adoption procedures 
discussed above do not authorize the participation by an adopting 
carrier in the cargo volume of the originating carrier's IA TVR. Member 
lines may publish and participate in joint IA TVRs, if permitted to do 
so under the terms of their agreement; however, no carrier may 
participate in an IA TVR already published by another carrier.
    (g) A conference agreement shall not require or permit individual 
member lines to be assessed on a per carrier usage basis the costs and/
or administrative expenses incurred by the agreement in processing 
independent action filings.
    (h) A conference agreement may not permit the conference to 
unilaterally designate an expiration date for an independent action 
taken by a member line. The right to determine the duration of an IA 
remains with the member line, and a member line must be given the 
opportunity to designate whatever duration it chooses for its IA, 
regardless if the duration is for a specified period or open ended. Only 
in instances where a member line gives its consent to the conference, or 
where a member line freely elects not to provide for the duration of its 
IA after having been given the opportunity, can the conference designate 
an expiration date for the member line's IA.

[[Page 224]]

    (i) Any new conference agreement or any modification to an existing 
conference agreement that does not comply with the requirements of this 
section shall be rejected pursuant to Sec. 535.601 of this part.
    (j) If ratemaking is by sections within a conference, then any 
notice to the conference required by Sec. 535.801 may be made to the 
particular ratemaking section.



Sec. 535.802  Service contracts.

    (a) Ocean common carrier agreements may not prohibit or restrict a 
member or members of the agreement from engaging in negotiations for 
service contracts with one or more shippers.
    (b) Ocean common carrier agreements may not require a member or 
members of the agreement to disclose a negotiation on a service 
contract, or the terms and conditions of a service contract, other than 
those terms or conditions required by section 8(c)(3) of the Act.
    (c) Ocean common carrier agreements may not adopt mandatory rules or 
requirements affecting the right of an agreement member or agreement 
members to negotiate or enter into service contracts.
    (d) An agreement may provide authority to adopt voluntary guidelines 
relating to the terms and procedures of an agreement member's or 
agreement members' service contracts if the guidelines explicitly state 
the right of the members of the agreement not to follow these 
guidelines.
    (e) Voluntary guidelines shall be submitted to the Director, Bureau 
of Trade Analysis, Federal Maritime Commission, Washington, DC 20573-
0001. Voluntary guidelines shall be kept confidential in accordance with 
Sec. 535.608 of this part. Use of voluntary guidelines prior to their 
submission is prohibited.



Sec. 535.803  Ocean freight forwarder compensation.

    No conference or group of two or more ocean common carriers may:
    (a) Deny to any member of such conference or group the right, upon 
notice of not more than 5 calendar days, to take independent action on 
any level of compensation paid to an ocean freight forwarder; or
    (b) Agree to limit the payment of compensation to an ocean freight 
forwarder to less than 1.25 percent of the aggregate of all rates and 
charges applicable under the tariff assessed against the cargo on which 
the forwarding services are provided.



                           Subpart I_Penalties



Sec. 535.901  Failure to file.

    Any person operating under an agreement, involving activities 
subject to the Act pursuant to sections 4 and 5(a) of the Act and this 
part and not exempted pursuant to section 16 of the Act or excluded from 
filing by the Act, that has not been filed and that has not become 
effective pursuant to the Act and this part is in violation of the Act 
and this part and is subject to the civil penalties set forth in section 
13(a) of the Act.



Sec. 535.902  Falsification of reports.

    Knowing falsification of any report required by the Act or this 
part, including knowing falsification of any item in any applicable 
agreement information and/or reporting requirements pursuant to subparts 
E and G of this part, is a violation of the rules of this part and is 
subject to the civil penalties set forth in section 13(a) of the Act and 
may be subject to the criminal penalties provided for in 18 U.S.C. 1001.



                      Subpart J_Paperwork Reduction



Sec. 535.991  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    This section displays the control number 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 1995, 
Pub. L. 104-13. The Commission intends that this section comply with the 
requirements of section 3507(a)(3) 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

[[Page 225]]

(OMB) for each agency information collection requirement in the 
following table:

------------------------------------------------------------------------
                                                            Current OMB
                         Section                            control No.
------------------------------------------------------------------------
535.101 through 535.902.................................       3072-0045
------------------------------------------------------------------------

        Appendix A to Part 535--Information Form and Instructions

                      Information Form Instructions

    1. All agreements and modifications to agreements between or among 
ocean common carriers identified in 46 CFR 535.502 must be accompanied 
by a completed Information Form to the full extent required in sections 
I through V of this Form. Sections I and V must be completed by all such 
agreements. In addition, sections II, III and IV must be completed, as 
applicable, in accordance with the authority contained in each 
agreement. Where an agreement containing multiple authorities is subject 
to duplicate reporting requirements in the various sections of this 
Form, the parties may provide only one response so long as the reporting 
requirements within each section are fully addressed. The Information 
Form specifies the data and information which must be reported for each 
section and the format in which it must be provided. If a party to an 
agreement is unable to supply a complete response to any item of this 
Form, that party shall provide either estimated data (with an 
explanation of why precise data are not available) or a detailed 
statement of reasons for noncompliance and the efforts made to obtain 
the required information. For purposes of this Form, if one of the 
agreement signatories is a joint service operating under an effective 
agreement, that signatory shall respond to the Form as a single 
agreement party.
    2. For clarification of the agreement terminology used in this Form, 
the parties may refer to the definitions provided in 46 CFR 535.104. In 
addition, the following definitions shall apply for purposes of this 
Form: liner movement means the carriage of liner cargo by liner 
operators; liner cargo means cargo carried on liner vessels in a liner 
service; liner operator means a vessel-operating common carrier engaged 
in liner service; liner vessel means a vessel used in a liner service; 
liner service means a definite, advertised schedule of sailings at 
regular intervals; and TEU means a unit of measurement equivalent to one 
20-foot shipping container. Further, when used in this Form, the terms 
``entire geographic scope of the agreement'' or ``agreement-wide'' refer 
to the combined U.S. inbound trade and/or the combined U.S. outbound 
trade as such trades apply to the geographic scope of the agreement, as 
opposed to the term ``sub-trade,'' which is defined for reporting 
purposes as the scope of all liner movements between each U.S. port 
range and each foreign country within the scope of the agreement. 
Whether required on a combined trade basis or a sub-trade basis, the 
U.S. inbound trade (or sub-trades) and the U.S. outbound trade (or sub-
trades) shall always be stated separately.

                                Section I

    Section I applies to all agreements identified in 46 CFR 535.502. 
Parties to such agreements must complete parts 1 through 4 of this 
section. The authorities listed in part 4 of this section do not 
necessarily include all of the authorities that must be set forth in an 
agreement filed under the Act. The specific authorities between the 
parties to an agreement, however, must be set forth, clearly and 
completely, in a filed agreement in accordance with 46 CFR 535.402.

                                 Part 1

    State the full name of the agreement.

                                 Part 2

    Provide a narrative statement describing the specific purpose(s) of 
the agreement pertaining to the parties' business activities as ocean 
common carriers in the foreign commerce of the United States, and the 
commercial or other relevant circumstances within the geographic scope 
of the agreement that led the parties to enter into the agreement.

                                 Part 3

    List all effective agreements that cover all or part of the 
geographic scope of this agreement, and whose parties include one or 
more of the parties to this agreement.

                                Part 4(A)

    Identify whether the agreement authorizes the parties to discuss, or 
agree upon, whether on a binding basis under a common tariff or a non-
binding basis, any kind of rate or charge.

                                Part 4(B)

    Identify whether the agreement authorizes the parties to establish a 
joint service.

                                Part 4(C)

    Identify whether the agreement authorizes the parties to pool cargo 
traffic or revenues.

                                Part 4(D)

    Identify whether the agreement authorizes the parties to discuss, or 
agree on, any service contract matter.

                                Part 4(E)

    Identify whether the agreement authorizes the parties to discuss or 
agree on capacity

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rationalization as defined in 46 CFR 535.104(e).

                                Part 4(F)

    Identify whether the agreement contains provisions that place 
conditions or restrictions on the parties' agreement participation, and/
or use or offering of competing services within the geographic scope of 
the agreement.

                                Part 4(G)

    Identify whether the agreement authorizes the parties to charter or 
use vessel space in exchange for compensation or services. This 
authority does not include capacity rationalization as referred to in 
part 4(E) of this section.

                                Part 4(H)

    Identify whether the agreement authorizes the parties to rationalize 
sailings or services relating to a schedule of ports, the frequency of 
vessel calls at ports, or the size and capacity of vessels for 
deployment. This authority does not include the establishment of a joint 
service or capacity rationalization as referred to in parts 4(B) and 
4(E) of this section.

                               Section II

    Section II applies to agreements identified in 46 CFR 535.502(a) 
that contain any of the following authorities: a) the charter or use of 
vessel space in exchange for compensation or services; or b) the 
rationalization of sailings or services relating to a schedule of ports, 
the frequency of vessel calls at ports, or the size and capacity of 
vessels for deployment. Such authorities do not include the 
establishment of a ``joint service,'' nor ``capacity rationalization'' 
as these terms are defined in 46 CFR 535.104 (o) and (e). Parties to 
agreements identified in this section must complete all items in part 1.

                                Part 1(A)

    For the most recent 12-month period for which complete data are 
available, provide the number of vessel calls each party made at each 
port for its liner services that would be covered by the agreement 
within the entire geographic scope of the agreement.

                                Part 1(B)

    Provide a narrative statement on any significant changes, 
anticipated or planned to be implemented when the agreement goes into 
effect, in the number of vessel calls at a port for the parties' liner 
services that would be covered by the agreement within the entire 
geographic scope of the agreement. Specifically, explain the nature of 
the significant change and its effect on the frequency of vessel calls 
at the port for the liner service that would be subject to the change. 
For purposes of this part, a significant change refers to an increase or 
a decrease in the number of vessel calls at a port for a fixed, 
seasonally planned, or indefinite period of time. A significant change 
excludes an incidental or temporary alteration in the number of vessel 
calls at a port, or an operational change in vessel calls that would 
have little or no impact on the number of vessel calls at a port. If no 
significant change is anticipated or planned, it shall be noted with the 
term ``none'' in response to part 1(B) of this section.

                               Section III

    Section III applies to agreements identified in 46 CFR 535.502 that 
contain the authority to discuss or agree on capacity rationalization as 
defined in 46 CFR 535.104(e). Parties to such agreements must complete 
parts 1 and 2 of this section.

                                Part 1(A)

    1. For the most recent calendar quarter for which complete data are 
available, provide the amount of vessel capacity for each party for each 
of its liner services that would be covered by the agreement within the 
entire geographic scope of the agreement, stated separately for the U.S. 
inbound and outbound trades as applicable to the geographic scope of the 
agreement. For purposes of this Form, vessel capacity means a party's 
total commercial liner space on line-haul vessels, whether operated by 
it or other parties from whom space is obtained, sailing to and/or from 
the continent of North America for each of its liner services that would 
be covered by the agreement.
    2. When 50 percent or more of the total liner cargo carried by all 
the parties in the geographic scope of the agreement during the calendar 
quarter was containerized, the amount(s) of vessel capacity for each 
party shall be reported in TEUs. When 50 percent or more of the total 
liner cargo carried by all the parties in the geographic scope of the 
agreement during the calendar quarter was non-containerized, the 
amount(s) of vessel capacity for each party shall be reported in non-
containerized units of measurement. The unit of measurement used in 
calculating the amounts of non-containerized vessel capacity must be 
specified clearly and consistently applied.

                                Part 1(B)

    Provide the percentage of vessel capacity utilization for each party 
for each of its liner services that would be covered by the agreement 
within the entire geographic scope of the agreement, corresponding to 
the figures and time period used in part 1(A) of this section, stated 
separately for the U.S. inbound

[[Page 227]]

and outbound trades as applicable to the geographic scope of the 
agreement. For purposes of this Form, the percentage of vessel capacity 
utilization means a party's total volume of liner cargo, for each of its 
liner services that would be covered by the agreement, carried on any 
vessel space counted under part 1(A) of this section, divided by its 
total vessel capacity as defined and derived in part 1(A) of this 
section, which quotient is multiplied by 100.

                                Part 1(C)

    Provide a narrative statement on any significant changes, 
anticipated or planned to be implemented when the agreement goes into 
effect, in the amounts of vessel capacity for the parties' liner 
services that would be covered by the agreement within the entire 
geographic scope of the agreement. Specifically, explain the nature of 
and the reasons for the significant change and its effects on the liner 
service and the total amount of vessel capacity for such service that 
would be subject to the change. For purposes of this part, a significant 
change refers to the removal from or addition to a liner service of 
vessels or vessel space for a fixed, seasonally planned, or indefinite 
period of time. A significant change excludes instances when vessels may 
be temporarily repositioned or shifted from one service to another, or 
when vessel space may be temporarily altered, or when vessels are 
removed from a liner service and vessels of similar capacity are 
substituted. It also excludes operational changes in vessels or vessel 
space that would have little or no impact on the amount of vessel 
capacity offered in a liner service or a trade. If no significant change 
is anticipated or planned, it shall be noted with the term ``none'' in 
response to part 1(C) of this section.

                                Part 2(A)

    For the most recent 12-month period for which complete data are 
available, provide the number of vessel calls each party made at each 
port for its liner services that would be covered by the agreement 
within the entire geographic scope of the agreement.

                                Part 2(B)

    Provide a narrative statement on any significant changes, 
anticipated or planned to be implemented when the agreement goes into 
effect, in the number of vessel calls at a port for the parties' liner 
services that would be covered by the agreement within the entire 
geographic scope of the agreement. Specifically, explain the nature of 
the significant change and its effect on the frequency of vessel calls 
at the port for the liner service that would be subject to the change. 
For purposes of this part, a significant change refers to an increase or 
a decrease in the number of vessel calls at a port for a fixed, 
seasonally planned, or indefinite period of time. A significant change 
excludes an incidental or temporary alteration in the number of vessel 
calls at a port, or an operational change in vessel calls that would 
have little or no impact on the number of vessel calls at a port. If no 
significant change is anticipated or planned, it shall be noted with the 
term ``none'' in response to part 2(B) of this section.

                               Section IV

    Section IV applies to agreements identified in 46 CFR 535.502 that 
contain any of the following authorities: a) the discussion of, or 
agreement upon, whether on a binding basis under a common tariff or a 
non-binding basis, any kind of rate or charge; b) the establishment of a 
joint service; c) the pooling or division of cargo traffic, earnings, or 
revenues and/or losses; or d) the discussion of, or agreement on, any 
service contract matter. Parties to such agreements must complete parts 
1 through 5 of this section.

                                 Part 1

    1. For the most recent calendar quarter for which complete data are 
available, provide the market shares of all liner operators for the 
entire geographic scope of the agreement and in each sub-trade within 
the scope of the agreement. A joint service shall be treated as a single 
liner operator, whether it is an agreement line or a non-agreement line. 
Sub-trade is defined as the scope of all liner movements between each 
U.S. port range within the scope of the agreement and each foreign 
country within the scope of the agreement. Where the agreement covers 
both U.S. inbound and outbound liner movements, inbound and outbound 
market shares shall be shown separately.
    2. U.S. port ranges are defined as follows:
    a. Atlantic and Gulf--Includes ports along the eastern seaboard and 
the Gulf of Mexico from the northern boundary of Maine to Brownsville, 
Texas. Also includes all ports bordering upon the Great Lakes and their 
connecting waterways, all ports in the State of New York on the St. 
Lawrence River, and all ports in Puerto Rico and the U.S. Virgin 
Islands.
    b. Pacific--Includes all ports in the States of Alaska, Hawaii, 
California, Oregon, and Washington. Also includes all ports in Guam, 
American Samoa, Northern Marianas, Johnston Island, Midway Island, and 
Wake Island.
    3. An application may be filed for a waiver of the definition of 
``sub-trade'' under the procedures described in 46 CFR 535.504. In any 
such application, the burden shall be on the parties to show that their 
marketing and pricing practices have been done by ascertainable multi-
country regions rather than by individual countries or, in the case of 
the

[[Page 228]]

United States, by broader areas than the port ranges defined herein. The 
parties must further show that, though operating individually, they were 
nevertheless applying essentially similar regional practices.
    4. The formula for calculating market share in the entire agreement 
scope or in a sub-trade is as follows: The total amount of liner cargo 
carried on each liner operator's liner vessels in the entire agreement 
scope or in the sub-trade during the most recent calendar quarter for 
which complete data are available, divided by the total liner movements 
in the entire agreement scope or in the sub-trade during the same 
calendar quarter, which quotient is multiplied by 100. The calendar 
quarter used must be clearly identified. The market shares held by non-
agreement lines as well as by agreement lines must be provided, stated 
separately in the format indicated.
    5. If 50 percent or more of the total liner cargo carried by the 
parties in the entire agreement scope during the calendar quarter was 
containerized, only containerized liner movements (measured in TEUs) 
must be used for determining market share. If 50 percent or more of the 
total liner cargo carried by the parties was non-containerized, only 
non-containerized liner movements must be used for determining market 
share. The unit of measurement used in calculating amounts of non-
containerized cargo must be specified clearly and applied consistently.

                                 Part 2

    1. For each party that served all or any part of the geographic 
scope of the agreement during all or any part of the most recent 12-
month period for which complete data are available, provide each party's 
total liner revenues within the geographic scope, total liner cargo 
carried within the geographic scope, and average revenue. For purposes 
of this Form, total liner revenues means the total revenues, in U.S. 
dollars, of each party corresponding to its total cargo carried for its 
liner services that would fall under the agreement, inclusive of all 
ocean freight charges, whether assessed on a port-to-port basis or a 
through intermodal basis; accessorial charges; surcharges; and charges 
for inland cargo carriage. Average revenue shall be calculated as the 
quotient of each party's total liner revenues within the geographic 
scope divided by its total cargo carried within the geographic scope.
    2. When 50 percent or more of the total liner cargo carried by all 
the parties in the geographic scope of the agreement during the 12-month 
period was containerized, each party shall report only its total 
carryings of containerized liner cargo (measured in TEUs) within the 
geographic scope, total revenues generated by its carriage of 
containerized liner cargo, and average revenue per TEU. When 50 percent 
or more of the total liner cargo carried by all the parties in the 
geographic scope of the agreement during the 12-month period was non-
containerized, each party shall report only its total carryings of non-
containerized liner cargo (specifying the unit of measurement used), 
total revenues generated by its carriage of non-containerized liner 
cargo, and average revenue per unit of measurement. When the agreement 
covers both U.S. inbound and outbound liner movements, inbound and 
outbound data shall be stated separately.

                                Part 3(A)

    For the same 12-month period used in part 2 of this section, provide 
a list, for the entire geographic scope of the agreement, of the top 10 
liner commodities (including commodities not subject to tariff 
publication) carried by all the parties for their liner services that 
would fall under the agreement. For purposes of this Form, commodities 
shall be identified at the 4-digit level of customarily used commodity 
coding schedules. When 50 percent or more of the total liner cargo 
carried by all the parties in the geographic scope of the agreement 
during the 12-month period was containerized, this list shall include 
only containerized commodities. When 50 percent or more of the total 
liner cargo carried by all the parties in the geographic scope of the 
agreement during the 12-month period was non-containerized, this list 
shall include only non-containerized commodities. When the agreement 
covers both U.S. inbound and outbound liner movements, inbound and 
outbound data shall be stated separately.

                                Part 3(B)

    Provide the cargo volume and revenue results for each party for each 
of the major commodities listed in part 3(A) of this section, 
corresponding to the same 12-month period and unit of measurement used. 
For purposes of this Form, revenue results means the revenues, in U.S. 
dollars, earned by each party on the cargo volume of each major 
commodity listed in part 3(A) of this section, inclusive of all ocean 
freight charges, whether assessed on a port-to-port basis or a through 
intermodal basis; accessorial charges; surcharges; and charges for 
inland cargo carriage. If a party has no cargo volume and revenue 
results for a commodity listed in part 3(A) of this section, it shall be 
noted by using a zero for that party in response to part 3(B) of this 
section.

                                Part 4(A)

    For the same calendar quarter used in part 1 of this section, 
provide the amount of vessel capacity for each party for each of its 
liner services that would fall under the agreement within the entire 
geographic scope of the agreement, stated separately for

[[Page 229]]

the U.S. inbound and outbound trades as applicable to the geographic 
scope of the agreement. For purposes of this Form, vessel capacity means 
a party's total commercial liner space on line-haul vessels, whether 
operated by it or other parties from whom space is obtained, sailing to 
and/or from the continent of North America for each of its liner 
services that would fall under the agreement. When 50 percent or more of 
the total liner cargo carried by all the parties in the geographic scope 
of the agreement during the calendar quarter was containerized, the 
amount(s) of vessel capacity for each party shall be reported in TEUs. 
When 50 percent or more of the total liner cargo carried by all the 
parties in the geographic scope of the agreement during the calendar 
quarter was non-containerized, the amount(s) of vessel capacity for each 
party shall be reported in non-containerized units of measurement. The 
unit of measurement used in calculating the amounts of non-containerized 
vessel capacity must be specified clearly and consistently applied.

                                Part 4(B)

    Provide the percentage of vessel capacity utilization for each party 
for each of its liner services that would fall under the agreement 
within the entire geographic scope of the agreement, corresponding to 
the figures and time period used in part 4(A) of this section, stated 
separately for the U.S. inbound and outbound trades as applicable to the 
geographic scope of the agreement. For purposes of this Form, the 
percentage of vessel capacity utilization means a party's total volume 
of liner cargo, for each of its liner services that would fall under the 
agreement, carried on any vessel space counted under part 4(A) of this 
section, divided by its total vessel capacity as defined and derived in 
part 4(A) of this section, which quotient is multiplied by 100.

                                Part 4(C)

    Provide a narrative statement on any significant changes, 
anticipated or planned for when the agreement goes into effect, in the 
amounts of vessel capacity for the parties' liner services that would 
fall under the agreement within the entire geographic scope of the 
agreement. Specifically, explain the nature of and reasons for the 
significant change and its effects on the liner service and the total 
amount of vessel capacity for such service that would be subject to the 
change. For purposes of this part, a significant change refers to the 
removal from or addition to a liner service of vessels or vessel space 
for a fixed, seasonally planned, or indefinite period of time. A 
significant change excludes instances when vessels may be temporarily 
repositioned or shifted from one service to another, or when vessel 
space may be temporarily altered, or when vessels are removed from a 
liner service and vessels of similar capacity are substituted. It also 
excludes operational changes in vessels or vessel space that would have 
little or no impact on the amount of vessel capacity offered in a liner 
service or a trade. If no significant change is anticipated or planned, 
it shall be noted with the term ``none'' in response to part 4(C) of 
this section.

                                Part 5(A)

    For the same 12-month period used in parts 2 and 3 of this section, 
provide the number of vessel calls each party made at each port for its 
liner services that would fall under the agreement within the entire 
geographic scope of the agreement.

                                Part 5(B)

    Provide a narrative statement on any significant changes, 
anticipated or planned for when the agreement goes into effect, in the 
number of vessel calls at a port for the parties' liner services that 
would fall under the agreement within the entire geographic scope of the 
agreement. Specifically, explain the nature of the significant change 
and its effect on the frequency of vessel calls at the port for the 
liner service that would be subject to the change. For purposes of this 
part, a significant change refers to an increase or decrease in the 
number of vessel calls at a port for a fixed, seasonally planned, or 
indefinite period of time. A significant change excludes an incidental 
or temporary alteration in vessel calls at a port, or an operational 
change in vessel calls that would have little or no impact on the number 
of vessel calls at a port. If no significant change is anticipated or 
planned, it shall be noted with the term ``none'' in response to part 
5(B) of this section.

                                Section V

    Section V applies to all agreements identified in 46 CFR 535.502. 
Parties to such agreements must complete all items in part 1 of this 
section.

                                Part 1(A)

    State the name, title, address, telephone and fax numbers, and 
electronic mail address of a person the Commission may contact regarding 
the Information Form and any information provided therein.

                                Part 1(B)

    State the name, title, address, telephone and fax numbers, and 
electronic mail address of a person the Commission may contact regarding 
a request for additional information or documents.

[[Page 230]]

                                Part 1(C)

    A representative of the parties shall sign the Information Form and 
certify that the information in the Form and all attachments and 
appendices are, to the best of his or her knowledge, true, correct and 
complete. The representative also shall indicate his or her relationship 
with the parties to the agreement.

             Privacy Act and Paperwork Reduction Act Notice

    1. The collection of this information is authorized generally by 
section 15 of the Shipping Act of 1984, 46 U.S.C. app. Sec. 1714. The 
submission of this form is mandatory for parties to agreements that 
contain certain authorities.
    2. You are not required to provide information requested on a form 
that is subject to the Paperwork Reduction Act unless the form displays 
a valid OMB control number. The valid control number for this 
information collection is 3072-0045.
    3. The time needed to complete and submit this form will vary 
depending on individual circumstances. The total estimated average time 
to complete this form is about 30 hours. This estimate includes reading 
the instructions, collecting necessary data, and compiling that data.
    4. If you have any comments concerning the accuracy of the above 
estimate or have any suggestions for simplifying the form, please 
contact Secretary, Federal Maritime Commission, 800 North Capitol 
Street, NW., Washington, DC 20573-0001; or by e-mail secretary@fmc.gov.

FMC Form-150                                   OMB Control No. 3072-0045
                       FEDERAL MARITIME COMMISSION
                          INFORMATION FORM FOR
            AGREEMENTS BETWEEN OR AMONG OCEAN COMMON CARRIERS
 

                                Section I

                                 Part 1

 Agreement Name:________________________________________________________

                                 Part 2

 Narrative statement on agreement purpose, and commercial or other 
circumstances requiring the agreement:__________________________________

________________________________________________________________________

________________________________________________________________________

                                 Part 3

    List all effective agreements covering all or part of the geographic 
scope of this agreement, whose parties include one or more of the 
parties to this agreement.

                                 Part 4

This agreement includes:
    (A) Authority to discuss or agree upon rates    Yes [squ]   No [squ]
     or charges?..................................
    (B) Joint service?............................  Yes [squ]   No [squ]
    (C) Pooling of cargo traffic or revenues?.....  Yes [squ]   No [squ]
    (D) Authority to discuss or agree on service    Yes [squ]   No [squ]
     contracts and their terms?...................
    (E) Authority to discuss or agree on capacity   Yes [squ]   No [squ]
     rationalization?.............................
    (F) Conditions or restrictions on the parties'  Yes [squ]   No [squ]
     agreement participation, and/or use or
     offering of competing services in the
     geographic scope?............................
    (G) Authority to charter vessel space?........  Yes [squ]   No [squ]
    (H) Authority to rationalize sailings or        Yes [squ]   No [squ]
     services?....................................
 

                               Section II

                                 Part 1

(A) Vessel Calls
Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [12-Months]
[Port Names] Port 1 Port 2 Port 3 Port 4 Etc. . . .
Carrier A [Name]
Carrier B
Carrier C
Etc. . . .


[[Page 231]]


 (B) Narrative statement on significant changes in vessel calls:________

________________________________________________________________________

________________________________________________________________________

                               Section III

                 Part 1 Vessel Capacity And Utilization

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                            (A)  Vessel
                                             Capacity           (B)
                                          [TEUs or other    Utilization
                                              units]         [percent]
 
Carrier A [Name]
    Liner Service 1 [Name]..............          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Carrier B
    Liner Service 1.....................          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
 

Etc. . . .

 (C) Narrative statement on significant changes in vessel capacity:_____

________________________________________________________________________

________________________________________________________________________

                           Part 2 Vessel Calls

(A) Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [12-Months]
[Port Names] Port 1 Port 2 Port 3 Port 4 Etc. . . .
Carrier A [Name]
Carrier B
Carrier C
Etc. . . .

 (B) Narrative statement on significant changes in vessel calls:________

________________________________________________________________________

________________________________________________________________________

                               Section IV

                           Part 1 Market Share

Agreement-Wide Trade (or Sub-Trade): U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                             TEUs  [or
                                           other units]       Percent
 
Agreement Market Share:
    Line A [Name].......................           X,XXX              XX
    Line B..............................           X,XXX              XX
    Line C..............................           X,XXX              XX
    Etc. . . .
        Total Agreement.................           X,XXX              XX
Non-Agreement Market Share:
    Line X..............................           X,XXX              XX
    Line Y..............................           X,XXX              XX
    Line Z..............................           X,XXX              XX
    Etc. . . .
        Total Non-Agreement.............           X,XXX              XX
Total Trade [or Sub-Trade]..............           X,XXX             100
 

                  Part 2 Total Liner Cargo and Revenues

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [12-Months]

 
                                                                       Total         TEUs  [or        Average
                             [Name]                                  revenues      other units]       revenue
 
Carrier A.......................................................               $           X,XXX               $
Carrier B.......................................................               $           X,XXX               $

[[Page 232]]

 
Carrier C.......................................................               $           X,XXX               $
    Etc. . . .
 

                      Part 3 Top Liner Commodities

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Same 12-Months in part 2 of this section]

 
                             [Name]                                  Carrier A       Carrier B      Etc. . . .
 
Commodity 1 [Name and 4-Digit Code]:
    TEUs [or other units].......................................           X,XXX           X,XXX
    Revenues....................................................               $               $
Commodity 2:
    TEUs........................................................           X,XXX           X,XXX
    Revenues....................................................               $               $
    Etc. . . .
 

                 Part 4 Vessel Capacity and Utilization

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Same Calendar Quarter in part 1 of this section]

 
                                            (A)  Vessel
                                             capacity           (B)
                                          [TEUs or other    Utilization
                                              units]         [percent]
 
Carrier A [Name]
    Liner Service 1 [Name]..............          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Carrier B
    Liner Service 1.....................          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Etc. . . .
 

 (C) Narrative statement on significant changes in vessel capacity:_____

________________________________________________________________________

________________________________________________________________________

                                 Part 5

(A) Vessel Calls
Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Same 12-Months in parts 2 and 3 of this section]
[Port Names] Port 1 Port 2 Port 3 Port 4 Etc. . . .
Carrier A [Name]
Carrier B
Carrier C
Etc. . . .
 (B) Narrative statement on significant changes in vessel calls:________

________________________________________________________________________

________________________________________________________________________

                                Section V

                Part 1 Contact Persons and Certification

(A) Person(s) to Contact Regarding Information Form.

 (1) Name_______________________________________________________________

 (2) Title______________________________________________________________

 (3) Firm Name and Business_____________________________________________

 (4) Business Telephone Number__________________________________________

 (5) Fax Number_________________________________________________________

 (6) E-Mail Address_____________________________________________________

(B) Individual Located in the United States Designated for the Limited 
Purpose of Receiving Notice of an Issuance of a Request for Additional 
Information or Documents (see 46 CFR 535.606).

 (1) Name_______________________________________________________________

 (2) Title______________________________________________________________

 (3) Firm Name and Business_____________________________________________

 (4) Business Telephone Number__________________________________________


[[Page 233]]

________________________________________________________________________
 (5) Fax Number_________________________________________________________

 (6) E-Mail Address_____________________________________________________

(C) Certification

This Information Form, together with any and all appendices and 
attachments thereto, was prepared and assembled in accordance with 
instructions issued by the Federal Maritime Commission. The information 
is, to the best of my knowledge, true, correct, and complete.

 Name (please print or type)____________________________________________

 Title__________________________________________________________________

 Relationship with parties to agreement_________________________________

 Signature______________________________________________________________

 Date___________________________________________________________________

[69 FR 64414, Nov. 4, 2004, as amended at 70 FR 20304, Apr. 19, 2005]

       Appendix B to Part 535--Monitoring Report and Instructions

                     Monitoring Report Instructions

    1. All agreements between or among ocean common carriers identified 
in 46 CFR 535.702(a) must submit completed Monitoring Reports to the 
full extent required in sections I through III of this Report. Sections 
I and II must be completed, as applicable, in accordance with the 
authority contained in each agreement. Section III must be completed by 
all agreements subject to Monitoring Report requirements.
    2. Where an agreement containing multiple authorities is subject to 
duplicate reporting requirements in the various sections of this Report, 
the parties may provide only one response so long as the reporting 
requirements within each section are fully addressed. The Monitoring 
Report specifies the data and information which must be reported for 
each section and the format in which it must be provided. If a party to 
an agreement is unable to supply a complete response to any item of this 
Report, that party shall provide either estimated data (with an 
explanation of why precise data are not available) or a detailed 
statement of reasons for noncompliance and the efforts made to obtain 
the required information. For purposes of this Report, if one of the 
agreement signatories is a joint service operating under an effective 
agreement, that signatory shall respond to the Report as a single 
agreement party.
    3. For clarification of the agreement terminology used in this 
Report, the parties may refer to the definitions provided in 46 CFR 
535.104. In addition, the following definitions shall apply for purposes 
of this Report: liner movement means the carriage of liner cargo by 
liner operators; liner cargo means cargo carried on liner vessels in a 
liner service; liner operator means a vessel-operating common carrier 
engaged in liner service; liner vessel means a vessel used in a liner 
service; liner service means a definite, advertised schedule of sailings 
at regular intervals; and TEU means a unit of measurement equivalent to 
one 20-foot shipping container. Further, when used in this Report, the 
terms ``entire geographic scope of the agreement'' or ``agreement-wide'' 
refer to the combined U.S. inbound trade and/or the combined U.S. 
outbound trade as such trades apply to the geographic scope of the 
agreement, as opposed to the term ``sub-trade,'' which is defined for 
reporting purposes as the scope of all liner movements between each U.S. 
port range and each foreign country within the scope of the agreement. 
Whether required on a combined trade basis or a sub-trade basis, the 
U.S. inbound trade (or sub-trades) and the U.S. outbound trade (or sub-
trades) shall always be stated separately.

                                Section I

    Section I applies to agreements, identified in 46 CFR 535.702(a)(1), 
that contain the authority to discuss or agree on capacity 
rationalization as defined in 46 CFR 535.104(e). Parties to such 
agreements must complete parts 1 through 3 of this section.

                                 Part 1

    State the full name of the agreement and the agreement number 
assigned by the FMC.

                                Part 2(A)

    1. For the preceding calendar quarter, provide the amount of vessel 
capacity for each party for each of its liner services that is covered 
by the agreement within the entire geographic scope of the agreement, 
stated separately for the U.S. inbound and outbound trades as applicable 
to the geographic scope of the agreement. For purposes of this Report, 
vessel capacity means a party's total commercial liner space on line-
haul vessels, whether operated by it or other parties from whom space is 
obtained, sailing to and/or from the continent of North America for each 
of its liner services that is covered by the agreement.
    2. When 50 percent or more of the total liner cargo carried by all 
the parties in the geographic scope of the agreement during the calendar 
quarter was containerized, the amount(s) of vessel capacity for each 
party shall be reported in TEUs. When 50 percent or more of the total 
liner cargo carried by all the parties in the geographic scope of the 
agreement during the calendar quarter was non-containerized, the 
amount(s) of vessel capacity for each party shall be reported in non-
containerized units of measurement. The unit of measurement used in 
calculating the amounts of non-containerized vessel capacity must be 
specified clearly and consistently applied.

[[Page 234]]

                                Part 2(B)

    For the preceding calendar quarter, provide the percentage of vessel 
capacity utilization for each party for each of its liner services that 
is covered by the agreement within the entire geographic scope of the 
agreement, corresponding to the figures used in part 2(A) of this 
section, stated separately for the U.S. inbound and outbound trades as 
applicable to the geographic scope of the agreement. For purposes of 
this Report, the percentage of vessel capacity utilization means a 
party's total volume of liner cargo, for each of its liner services that 
is covered by the agreement, carried on any vessel space counted under 
part 2(A) of this section, divided by its total vessel capacity as 
defined and derived in part 2(A) of this section, which quotient is 
multiplied by 100.

                                Part 2(C)

    Provide a narrative statement on any significant reductions, to be 
implemented under the agreement, in the amounts of vessel capacity for 
the parties' liner services that are covered by the agreement within the 
entire geographic scope of the agreement. Specifically, explain the 
nature of and the reasons for the significant reduction and its effects 
on the liner service and the total amount of vessel capacity for such 
service that would be subject to the reduction. The narrative statement 
for part 2(C) of this section shall be submitted to the Director, Bureau 
of Trade Analysis, no later than 15 days after a significant reduction 
in the amount of vessel capacity has been agreed upon by the parties but 
prior to the implementation of the actual reduction under the agreement. 
For purposes of this part, a significant reduction refers to the removal 
from a liner service of vessels or vessel space for a fixed, seasonally 
planned, or indefinite period of time. A significant reduction excludes 
instances when vessels may be temporarily repositioned or shifted from 
one service to another, or when vessel space may be temporarily altered, 
or when vessels are removed from a liner service and vessels of similar 
or greater capacity are substituted. It also excludes operational 
changes in vessels or vessel space that would have little or no impact 
on the amount of vessel capacity offered in a liner service or a trade.

                                Part 2(D)

    Excluding those changes already reported in part 2(C) of this 
section, provide a narrative statement on any other significant changes, 
implemented under the agreement during the preceding calendar quarter, 
in the amounts of vessel capacity for the parties' liner services that 
are covered by the agreement within the entire geographic scope of the 
agreement. Specifically, explain the nature of and the reasons for the 
significant change and its effects on the liner service and the total 
amount of vessel capacity for such service that was subject to the 
change. For purposes of this part, a significant change refers to the 
addition to a liner service of vessels or vessel space for a fixed, 
seasonally planned, or indefinite period of time. A significant change 
excludes instances when vessels were temporarily repositioned or shifted 
from one service to another, or when vessel space was temporarily 
altered, or when vessels were removed from a liner service and vessels 
of similar capacity were substituted. It also excludes operational 
changes in vessels or vessel space that had little or no impact on the 
amount of vessel capacity offered in a liner service or a trade. If no 
significant change was implemented, it shall be noted with the term 
``none'' in response to part 2(D) of this section.

                                 Part 3

    Provide a narrative statement on any significant changes, 
implemented under the agreement during the calendar quarter, in the 
number of vessel calls at a port for the parties' liner services that 
are covered by the agreement within the entire geographic scope of the 
agreement. Specifically, explain the nature of the significant change 
and its effect on the frequency of vessel calls at the port for the 
liner service that was subject to the change. For purposes of this part, 
a significant change refers to an increase or a decrease in the number 
of vessel calls at a port for a fixed, seasonally planned, or indefinite 
period of time. A significant change excludes an incidental or temporary 
alteration in the number of vessel calls at a port, or an operational 
change in vessel calls that had little or no impact on the number of 
vessel calls at a port. If no significant change was implemented, it 
shall be noted with the term ``none'' in response to part 3 of this 
section.

                               Section II

    Section II applies to agreements, identified in 46 CFR 
535.702(a)(2), where the parties to the agreement hold a combined market 
share, based on cargo volume, of 35 percent or more in the entire U.S. 
inbound or outbound geographic scope of the agreement and the agreement 
contains any of the following authorities: a) the discussion of, or 
agreement upon, whether on a binding basis under a common tariff or a 
non-binding basis, any kind of rate or charge; b) the establishment of a 
joint service; c) the pooling or division of cargo traffic, earnings, or 
revenues and/or losses; or d) the discussion of, or agreement on, any 
service contract matter. Parties to such agreements must complete parts 
1 through 6 of this section.

[[Page 235]]

                                 Part 1

    State the full name of the agreement and the agreement number 
assigned by the FMC.

                                 Part 2

    1. For the preceding calendar quarter, provide the market shares of 
all liner operators for the entire geographic scope of the agreement and 
in each sub-trade within the scope of the agreement. A joint service 
shall be treated as a single liner operator, whether it is an agreement 
line or a non-agreement line. Sub-trade is defined as the scope of all 
liner movements between each U.S. port range within the scope of the 
agreement and each foreign country within the scope of the agreement. 
Where the agreement covers both U.S. inbound and outbound liner 
movements, inbound and outbound market shares shall be shown separately.
    2. U.S. port ranges are defined as follows:
    a. Atlantic and Gulf--Includes ports along the eastern seaboard and 
the Gulf of Mexico from the northern boundary of Maine to Brownsville, 
Texas. Also includes all ports bordering upon the Great Lakes and their 
connecting waterways, all ports in the State of New York on the St. 
Lawrence River, and all ports in Puerto Rico and the U.S. Virgin 
Islands.
    b. Pacific--Includes all ports in the States of Alaska, Hawaii, 
California, Oregon, and Washington. Also includes all ports in Guam, 
American Samoa, Northern Marianas, Johnston Island, Midway Island, and 
Wake Island.
    3. An application may be filed for a waiver of the definition of 
``sub-trade'' under the procedures described in 46 CFR 535.705. In any 
such application, the burden shall be on the parties to show that their 
marketing and pricing practices have been done by ascertainable multi-
country regions rather than by individual countries or, in the case of 
the United States, by broader areas than the port ranges defined herein. 
The Commission will also consider whether the alternative definition of 
``sub-trade'' requested by the waiver application is reasonably 
consistent with the definition of ``sub-trade'' applied in the original 
Information Form for the agreement.
    4. The formula for calculating market share in the entire agreement 
scope or in a sub-trade is as follows: The total amount of liner cargo 
carried on each liner operator's liner vessels in the entire agreement 
scope or in the sub-trade during the most recent calendar quarter for 
which complete data are available, divided by the total liner movements 
in the entire agreement scope or in the sub-trade during the same 
calendar quarter, which quotient is multiplied by 100. The market shares 
held by non-agreement lines as well as by agreement lines must be 
provided, stated separately in the format indicated.
    5. If 50 percent or more of the total liner cargo carried by the 
parties in the entire agreement scope during the calendar quarter was 
containerized, only containerized liner movements (measured in TEUs) 
must be used for determining market share. If 50 percent or more of the 
total liner cargo carried by the parties was non-containerized, only 
non-containerized liner movements must be used for determining market 
share. The unit of measurement used in calculating amounts of non-
containerized cargo must be specified clearly and applied consistently.

                                 Part 3

    1. For the preceding calendar quarter, provide each party's total 
liner revenues in the entire geographic scope of the agreement, total 
liner cargo carried in the entire geographic scope of the agreement, and 
average revenue. For purposes of this Report, total liner revenues means 
the total revenues, in U.S. dollars, of each party corresponding to its 
total cargo carried for its liner services that fall under the 
agreement, inclusive of all ocean freight charges, whether assessed on a 
port-to-port basis or a through intermodal basis; accessorial charges; 
surcharges; and charges for inland cargo carriage. Average revenue shall 
be calculated as the quotient of each party's total liner revenues in 
the entire geographic scope divided by its total cargo carried in the 
entire geographic scope.
    2. When 50 percent or more of the total liner cargo carried by all 
the parties in the geographic scope of the agreement during the calendar 
quarter was containerized, each party shall report only its total 
carryings of containerized liner cargo (measured in TEUs) during the 
calendar quarter, total revenues generated by its carriage of 
containerized liner cargo, and average revenue per TEU. When 50 percent 
or more of the total liner cargo carried by all the parties in the 
geographic scope of the agreement during the calendar quarter was non-
containerized, each party shall report only its total carryings of non-
containerized liner cargo during the calendar quarter (specifying the 
unit of measurement used), total revenues generated by its carriage of 
non-containerized liner cargo, and average revenue per unit of 
measurement. When the agreement covers both U.S. inbound and outbound 
liner movements, inbound and outbound data shall be stated separately.

                                Part 4(A)

    For the preceding calendar quarter, provide a list, for the entire 
geographic scope of the agreement, of the top 10 liner commodities 
(including commodities not subject to tariff publication) carried by all 
the parties for their liner services that fall under the

[[Page 236]]

agreement. For purposes of this Report, commodities shall be identified 
at the 4-digit level of customarily used commodity coding schedules. 
When 50 percent or more of the total liner cargo carried by all the 
parties in the geographic scope of the agreement during the calendar 
quarter was containerized, this list shall include only containerized 
commodities. When 50 percent or more of the total liner cargo carried by 
all the parties in the geographic scope of the agreement during the 
calendar quarter was non-containerized, this list shall include only 
non-containerized commodities. When the agreement covers both U.S. 
inbound and outbound liner movements, inbound and outbound data shall be 
stated separately.

                                Part 4(B)

    For the preceding calendar quarter, provide the cargo volume and 
revenue results for each party for each of the major commodities listed 
in part 4(A) of this section, corresponding to the same unit of 
measurement used. For purposes of this Report, revenue results means the 
revenues, in U.S. dollars, earned by each party on the cargo volume of 
each major commodity listed in part 4(A) of this section, inclusive of 
all ocean freight charges, whether assessed on a port-to-port basis or a 
through intermodal basis; accessorial charges; surcharges; and charges 
for inland cargo carriage. If a party has no cargo volume and revenue 
results for a commodity listed in part 4(A) of this section, it shall be 
noted by using a zero for that party in response to part 4(B) of this 
section.

                                Part 5(A)

    For the preceding calendar quarter, provide the amount of vessel 
capacity for each party for each of its liner services that falls under 
the agreement within the entire geographic scope of the agreement, 
stated separately for the U.S. inbound and outbound trades as applicable 
to the geographic scope of the agreement. For purposes of this Report, 
vessel capacity means a party's total commercial liner space on line-
haul vessels, whether operated by it or other parties from whom space is 
obtained, sailing to and/or from the continent of North America for each 
of its liner services that falls under the agreement. When 50 percent or 
more of the total liner cargo carried by all the parties in the 
geographic scope of the agreement during the calendar quarter was 
containerized, the amount(s) of vessel capacity for each party shall be 
reported in TEUs. When 50 percent or more of the total liner cargo 
carried by all the parties in the geographic scope of the agreement 
during the calendar quarter was non-containerized, the amount(s) of 
vessel capacity for each party shall be reported in non-containerized 
units of measurement. The unit of measurement used in calculating the 
amounts of non-containerized vessel capacity must be specified clearly 
and consistently applied.

                                Part 5(B)

    For the preceding calendar quarter, provide the percentage of vessel 
capacity utilization for each party for each of its liner services that 
falls under the agreement within the entire geographic scope of the 
agreement, corresponding to the figures used in part 5(A) of this 
section, stated separately for the U.S. inbound and outbound trades as 
applicable to the geographic scope of the agreement. For purposes of 
this Report, the percentage of vessel capacity utilization means a 
party's total volume of liner cargo, for each of its liner services that 
falls under the agreement, carried on any vessel space counted under 
part 5(A) of this section, divided by its total vessel capacity as 
defined and derived in part 5(A) of this section, which quotient is 
multiplied by 100.

                                Part 5(C)

    Provide a narrative statement on any significant changes in the 
amount of vessel capacity that occurred during the preceding calendar 
quarter for the parties' liner services that fall under the agreement 
within the entire geographic scope of the agreement. Specifically, 
explain the nature of and the reasons for the significant change and its 
effects on the liner service and the total amount of vessel capacity for 
such service that was subject to the change. For purposes of this part, 
a significant change refers to the removal from or addition to a liner 
service of vessels or vessel space for a fixed, seasonally planned, or 
indefinite period of time. A significant change would exclude instances 
when vessels were temporarily repositioned or shifted from one service 
to another, or when vessel space was temporarily altered, or when 
vessels were removed from a liner service and vessels of similar 
capacity were substituted. It also excludes operational changes in 
vessels and vessel space that had little or no impact on the amount of 
vessel capacity offered in a liner service or a trade. If no significant 
change occurred during the calendar quarter, it shall be noted with the 
term ``none'' in response to part 5(C) of this section.

                                 Part 6

    Provide a narrative statement on any significant changes in the 
number of vessel calls at a port that occurred during the preceding 
calendar quarter for the parties' liner services that fall under the 
agreement within the entire geographic scope of the agreement. 
Specifically, explain the nature of the significant change and its 
effect on the frequency of vessel calls at the port for the liner 
service that was subject to the change.

[[Page 237]]

For purposes of this part, a significant change refers to an increase or 
a decrease in the number of vessel calls at a port for a fixed, 
seasonally planned, or indefinite period of time. A significant change 
excludes an incidental or temporary alteration in the number of vessel 
calls at a port, or an operational change in vessel calls that had 
little or no impact on the number of vessel calls at a port. If no 
significant change occurred during the calendar quarter, it shall be 
noted with the term ``none'' in response to part 6 of this section.

                               Section III

    Section III applies to all agreements identified in 46 CFR 
535.702(a). Parties to such agreements must complete all items in part 1 
of this section.

                                Part 1(A)

    State the name, title, address, telephone and fax numbers, and 
electronic mail address of a person the Commission may contact regarding 
the Monitoring Report and any information provided therein.

                                Part 1(B)

    A representative of the parties shall sign the Monitoring Report and 
certify that the information in the Report and all attachments and 
appendices are, to the best of his or her knowledge, true, correct and 
complete. The representative also shall indicate his or her relationship 
with the parties to the agreement.

             Privacy Act and Paperwork Reduction Act Notice

    1. The collection of this information is authorized generally by 
section 15 of the Shipping Act of 1984, 46 U.S.C. app. Sec. 1714. The 
submission of this form is mandatory for parties to agreements that 
contain certain authorities.
    2. You are not required to provide information requested on a form 
that is subject to the Paperwork Reduction Act unless the form displays 
a valid OMB control number. The valid control number for this 
information collection is 3072-0045.
    3. The time needed to complete and submit this form will vary 
depending on individual circumstances. The total estimated average time 
to complete this form is about 63.5 hours. This estimate includes 
reading the instructions, collecting necessary data, and compiling that 
data.
    4. If you have any comments concerning the accuracy of the above 
estimate or have any suggestions for simplifying the form, please 
contact Secretary, Federal Maritime Commission, 800 North Capitol 
Street, NW., Washington, DC 20573-0001; or by e-mail secretary@fmc.gov.

FMC Form-151                                   OMB Control No. 3072-0045
                       FEDERAL MARITIME COMMISSION
                          MONITORING REPORT FOR
            AGREEMENTS BETWEEN OR AMONG OCEAN COMMON CARRIERS
 

                                Section I

                                 Part 1

 Agreement Name:________________________________________________________

 FMC Number:____________________________________________________________

                 Part 2 Vessel Capacity and Utilization

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                            (A)  Vessel
                                             capacity           (B)
                                          [TEUs or other    Utilization
                                              units]         [percent]
 
Carrier A [Name]:
    Liner Service 1 [Name]..............          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . ...........................
Carrier B:
    Liner Service 1.....................          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Etc. . . .
 


[[Page 238]]

 (C) Narrative statement on significant reductions in vessel capacity to 
be implemented (submit statement no later than 15 days after a reduction 
has been agreed upon but prior to the implementation of the reduction):_

________________________________________________________________________

 (D) Narrative statement on other significant changes in vessel capacity 
implemented during the calendar quarter:________________________________

________________________________________________________________________

                           Part 3 Vessel Calls

 Narrative statement on significant changes in vessel calls implemented 
during the calendar quarter:____________________________________________

________________________________________________________________________

                               Section II

                                 Part 1

 Agreement Name:________________________________________________________

 FMC Number:____________________________________________________________

                           Part 2 Market Share

Agreement-Wide Trade (or Sub-Trade): U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                             TEUs  [or
                                           other units]       Percent
 
Agreement Market Share:
    Line A [Name].......................           X,XXX              XX
    Line B..............................           X,XXX              XX
    Line C..............................           X,XXX              XX
    Etc. . . .
        Total Agreement.................           X,XXX              XX
Non-Agreement Market Share:
    Line X..............................           X,XXX              XX
    Line Y..............................           X,XXX              XX
    Line Z..............................           X,XXX              XX
    Etc. . . .
        Total Non-Agreement.............           X,XXX              XX
Total Trade [or Sub-Trade]..............           X,XXX             100
 

                  Part 3 Total Liner Cargo and Revenues

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                                                                                  TEUs [or other      Average
                             [Name]                               Total revenues      units]          revenue
 
Carrier A.......................................................               $           X,XXX               $
Carrier B.......................................................               $           X,XXX               $
Carrier C.......................................................               $           X,XXX               $
    Etc. . . .
 

                      Part 4 Top Liner Commodities

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

 
                             [Name]                                  Carrier A       Carrier B       Etc. . .
 
Commodity 1 [Name and 4-Digit Code]:
    TEUs [or other units].......................................           X,XXX           X,XXX
    Revenues....................................................               $               $
Commodity 2:
    TEUs........................................................           X,XXX           X,XXX
    Revenues....................................................               $               $
Etc. . . .
 

                 Part 5 Vessel Capacity and Utilization

Agreement-Wide Trade: U.S. Inbound (or Outbound) Name
Time Period: [Calendar Quarter]

[[Page 239]]


 
                                            (A)  Vessel
                                             capacity           (B)
                                          [TEUs or other    Utilization
                                              units]         [percent]
 
Carrier A [Name]:
    Liner Service 1 [Name]..............          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . ...........................
Carrier B:
    Liner Service 1.....................          XX,XXX              XX
    Liner Service 2.....................          XX,XXX              XX
    Liner Service 3.....................          XX,XXX              XX
    Etc. . . .
Etc. . . .
 

 (C) Narrative statement on significant changes in vessel capacity that 
occurred during the calendar quarter:___________________________________

________________________________________________________________________

                           Part 6 Vessel Calls

 Narrative statement on significant changes in vessel calls that 
occurred during the calendar quarter:___________________________________

________________________________________________________________________

________________________________________________________________________

                               Section III

                 Part 1 Contact Person and Certification

(A) Person(s) To Contact Regarding Monitoring Report.

 (1) Name_______________________________________________________________

 (2) Title______________________________________________________________

 (3) Firm Name and Business_____________________________________________

 (4) Business Telephone Number__________________________________________

 (5) Fax Number_________________________________________________________

 (6) E-Mail Address_____________________________________________________

(B) Certification.

This Monitoring Report, together with any and all appendices and 
attachments thereto, was prepared and assembled in accordance with 
instructions issued by the Federal Maritime Commission. The information 
is, to the best of my knowledge, true, correct, and complete.

 Name (please print or type)____________________________________________

 Title__________________________________________________________________

 Relationship with parties to agreement_________________________________

 Signature______________________________________________________________

 Date___________________________________________________________________



PART 540_PASSENGER VESSEL FINANCIAL RESPONSIBILITY--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, and escrow accounts.
540.6 Surety bonds.
540.7 Evidence of financial responsibility.
540.8 Denial, revocation, suspension, or modification.
540.9 Miscellaneous.

Form FMC-131 to Subpart A
Form FMC-132A to Subpart A
Form FMC-133A to Subpart A
Appendix A to Subpart A--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.

[[Page 240]]


Form FMC-132B to Subpart B
Form FMC-133B to Subpart B

                            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, 46 U.S.C. app. 817e, 817d; 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

[[Page 241]]

vessel for a particular voyage or series of voyages; and
    (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 
$2,767. 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 $1,382.
    (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; 67 FR 39861, June 11, 2002; 70 FR 10330, 
Mar. 3, 2005]



Sec. 540.5  Insurance, guaranties, and escrow accounts.

    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 two 
fiscal years immediately prior to the filing of the application which 
reflects the greatest amount of unearned passenger revenue. The 
Commission, for good cause shown, may consider a time period other than 
the previous two-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:

[[Page 242]]

    (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 
Protection and Indemnity Association with established assets, reserves 
and reinsurance 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) 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; 67 FR 44776, 
July 5, 2002]



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 243]]

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 244]]

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 to Subpart A of Part 540

                              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.

[[Page 245]]

                             Part I--General

                          Answer All Questions

    1. (a) Legal business name:
    (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 11-14 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).
    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.)

[[Page 246]]

    (b) Method by which bond amount is determined (attach data 
substantiating that amount is not less than that prescribed in 46 CFR 
540.6).
    (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.

                           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; 
67 FR 44776, July 5, 2002]

                 Form FMC-132A to Subpart A of Part 540

                              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

[[Page 247]]

A of part 540 of title 46, Code of Federal Regulations, in accordance 
with the ticket contract between the Principal and the passenger, and
    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 to Subpart A of Part 540

                              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

[[Page 248]]

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 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 to Subpart A of Part 540--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.

[[Page 249]]

    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
    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.

[[Page 250]]

    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, 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

[[Page 251]]

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 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 
$1,206. 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 $605.
    (c) The application shall be signed by a duly authorized officer or 
representative 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; 67 FR 39861, June 11, 2002; 70 FR 10331, 
Mar. 3, 2005]



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 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

[[Page 252]]

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 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

[[Page 253]]

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 (Casua