[Federal Register Volume 69, Number 175 (Friday, September 10, 2004)]
[Notices]
[Pages 54788-54789]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-20475]
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FEDERAL MARITIME COMMISSION
[Petition Nos. P3-03, P5-03, P7-03, P8-03, P9-03, P1-04, P2-04, P4-04]
Petition of United Parcel Service, Inc. for Exemption; Petition
of the National Customs Brokers and Forwarders Association of America,
Inc. for Limited Exemption; Petition of Ocean World Lines, Inc. for
Rulemaking; Petition of BAX Global, Inc. for Rulemaking; Petition of
C.H. Robinson Worldwide, Inc. for Exemption; Petition of Danzas
Corporation d/b/a Danmar Lines Ltd., Danzas AEI Ocean Services, and DHL
Danzas Air and Ocean for Exemption; Petition of BDP International, Inc.
for Exemption; Petition of FEDEX Trade Networks Transport & Brokerage,
Inc. for Exemption.
Served: September 2, 2004.
Order
I. Introduction
On August 2, 2004, the National Industrial Transportation League
(``NITL''), United Parcel Service, Inc. (``UPS''), BAX Global Inc.
(``BAX''), FEDEX Trade Networks Transport & Brokerage, Inc.
(``FEDEX''), Transportation Intermediaries Association (``TIA''), C.H.
Robinson Worldwide, Inc. (``CHRW''), and BDP International, Inc.
(collectively, ``Movants'') filed a Motion for Leave (``Motion'')
pursuant to Rule 73, 46 CFR 502.73, in the proceedings referenced above
to file Joint Supplemental Comments Requesting Expedited Adoption of a
Conditional Exemption from Tariff Publication (``Supplemental
Comments''). Conceding that the comment period for these proceedings is
closed, Movants nonetheless seek acceptance of the Supplemental
Comments into the record, claiming that the comments reflect an
updated, unified version of the various forms of relief requested in
the original individual petitions.
Interested persons were given until August 20, 2004, to file
replies on the Motion, and five were received. The World Shipping
Council (``WSC''), American President Lines, Ltd. (``APL''), the U.S.
Department of Transportation (``DOT'') and Danzas Corporation d/b/a
Danmar Lines Ltd., Danzas AEI Ocean Serves, and DHL Danzas Air and
Ocean (``Danzas'') filed replies in support of the Motion. Ocean World
Lines (``OWL'') filed a reply in opposition.
The Commission hereby grants the Motion, accepts the Supplemental
Comments, and invites interested persons to respond to the Supplemental
Comments by September 30, 2004.
II. Motion and Supplemental Comments
Movants submit that they have engaged in ``substantial
discussions'' over the past several months that have resulted in a
unified approach to the pending NVOCC tariff publication exemption
proceedings. They believe that the Commission should be informed of
this approach, as it is intended to give ``clear direction'' to the
Commission in its deliberations on the petitions. Supplemental Comments
at 2-3.
Movants note that the motion and corresponding comments do not
constitute a withdrawal of the existing petitions. Supplemental
Comments at 2 n.2. Movants submit that any Commission action on the
proposed conditional tariff exemption should not supercede
consideration of petitioners' requested relief from the tariff
publication requirements. Id.
Reiterating their concerns submitted in the pending petitions and
comments that the current regulatory scheme undermines competitiveness
in the shipping industry, Movants request that the Commission use its
authority under section 16 of the Shipping Act to exempt certain NVOCC
agreements with shippers from the tariff publication requirements in
sections 8(a), (b), (d) and (e) of the Shipping Act and 46 CFR Part 520
of the Commission's Rules and Regulations, as well as the tariff-
related prohibited acts found in sections 10(b)(1), (2), (4) and (8) of
the Shipping Act. Supplemental Comments at 3, Appendix 1. The proposed
exemption would apply to any written agreements between an NVOCC and
shipper (excluding bills of lading, receipts or other transport
documents), where the shipper pledges to provide a specific volume/
portion of cargo over a fixed time period while the NVOCC commits to a
defined rate and service level. Id. According to Movants, the proposed
exemption would be subject to the following conditions: (1) The
agreements and their essential terms must be filed confidentially with
the Commission; \1\ (2) the NVOCC must publish, in tariff format, the
origin and destination port ranges, commodity involved, minimum volume/
portion, and duration of the agreement; and (3) the Commission would
retain jurisdiction to the same extent as it does over service
contracts under the Shipping Act. Id.
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\1\ The essential terms would include: (1) Origin and
destination port ranges; (2) origin and destination geographic areas
in the case of through intermodal movements; (3) list of
commodities; (4) minimum volume/portion; (5) line-haul rate; (6)
duration; (7) service commitments; (8) liquidated damages for non-
performance. Id.
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Movants also assert that the elements of the conditional tariff
exemption are based upon the requested relief submitted in the original
petitions and are therefore not novel. Supplemental Comments at 3. As
such, they aver that the Commission need not seek any further inquiry
on the matter and should find the exemption to be ``justified'' based
upon the ``substantial evidence'' already developed in the record.
Movants urge the Commission to take immediate action to adopt the
exemption. Id. at 3-4.
III. Replies
WSC submitted a reply to the Commission on August 17, 2004. Because
the Supplemental Comments appear to address WSC's concern that the
original petitions were vague and inconsistent, WSC claims that it does
not oppose the Motion as long as interested persons are provided a
reasonable amount of time to comment on Movants' proposed tariff
exemption. According to WSC, its Board of Directors and general
membership are scheduled to meet in mid-September. As such, WSC
requests that the comment period be set for September 30, 2004, and
notes that Movants have authorized WSC counsel to represent that they
have no objection to this date. WSC Reply at 2-3. On August 19, 2004,
APL submitted a one-line reply expressing its support of WSC's
position. APL Reply at 1. DOT also filed a reply indicating its support
of WSC's position. DOT Reply at 1-2.
On August 17, 2004, Danzas, petitioner in Petition P1-04, submitted
a reply in support of the Motion as it affects its own petition. Danzas
asserts that the Motion serves as a ``consensus position'' to the many
diverse requests for relief under consideration by the Commission and
could be useful in expediting the deliberation process on the
petitions. Danzas Reply at 2. As such, Danzas asserts that the
Commission should reopen the comment period under Rule 10 of the
Commission's Rules of Practice and Procedure, 46 CFR 502.10, which
allows the Commission to waive rules in particular cases ``if
expeditious conduct of business so requires,'' except where such a
waiver would be inconsistent with any statute.
OWL, petitioner in Petition P7-03, filed its reply on August 18,
2004. OWL contends that granting the Motion would unnecessarily delay
the proceedings not only by reopening the comment period, but also by
diverting
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the Commission's attention and resources from taking final action on
the petitions to crafting a response to the instant request. OWL Reply
at 2. Because the new, unified proposal differs from the varying relief
sought by individual petitioners who are also parties to this Motion,
OWL argues that it would be more appropriate for Movants to file a new
petition. Id. OWL also claims that the Motion provides no compelling
reason to reopen the comment period, as the only new fact that will be
contributed to the already voluminous record is ``that they have agreed
among themselves that they now want the exact same thing.'' Id. at 3.
IV. Discussion
While OWL's concerns of delay are well-taken, the deliberation
process requires a full, up-to-date picture of the participants'
positions.\2\ Because the Supplemental Comments provide a unified,
tangible proposal to the overarching NVOCC tariff publication exemption
matter, the granting of this Motion and the acceptance of the comments
into the record may serve to advance an administratively final decision
rather than postpone one.
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\2\ We should note that NITL and TIA did not file petitions
before the Commission, but instead have commented on other persons'
petitions.
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The Commission has determined to grant the Motion, accept the
Supplemental Comments into the record, and allow interested persons to
respond to the Supplemental Comments by September 30, 2004. Interested
persons are requested to submit their views or arguments in reply to
the Supplemental Comments no later than September 30, 2004. Comments
shall consist of an original and 15 copies, and shall be directed to
the Secretary, Federal Maritime Commission, 800 North Capitol Street,
NW., Washington, DC 20573-0001. It is also requested that a copy be
submitted in electronic form (WordPerfect, Word or ASCII) on diskette,
or e-mailed to Secretary@fmc.gov. The Commission has also determined to
waive the service requirements found at 46 CFR 502.114(b). Instead,
copies of all filed comments may be viewed on the Commission's Web page
at http://www.fmc.gov.
Conclusion
Therefore, it is ordered, That Movants' Motion is granted and the
Joint Supplemental Comments are accepted into the record;
It is further ordered, That the Commission waives the service
requirements found at 46 CFR 502.114(b) for any responses to the Joint
Supplemental Comments. Interested persons may respond to the Joint
Supplemental Comments until September 30, 2004.
By the Commission.
Bryant L. VanBrakle,
Secretary.
[FR Doc. 04-20475 Filed 9-9-04; 8:45 am]
BILLING CODE 6730-01-P