[Federal Register Volume 79, Number 183 (Monday, September 22, 2014)]
[Rules and Regulations]
[Pages 56522-56523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22426]
=======================================================================
-----------------------------------------------------------------------
FEDERAL MARITIME COMMISSION
46 CFR Part 515
[Docket No. 14-08]
RIN 3072-AC56
Procedure for Public Notification of Ocean Transportation
Intermediary Licensing Activity
AGENCY: Federal Maritime Commission.
ACTION: Direct final rule; confirmation of effective date and response
to public comment.
-----------------------------------------------------------------------
SUMMARY: The Federal Maritime Commission (FMC or Commission) is
confirming the effective date of the direct final rule published on
July 24, 2014, and responds to the comment received. The rule changes
the method the Commission uses to provide public notice of Ocean
Transportation Intermediary (OTI) license applications, revocations and
suspensions by publishing this information on the FMC's official public
Web site rather than publishing the same information in the Federal
Register. This change provides more timely public notification of
official FMC action on OTI licensing matters, simplifies the
Commission's business processes, and reduces agency administrative
costs.
DATES: The direct final rule published July 24, 2014, at 79 FR 42986,
is effective on September 22, 2014.
FOR FURTHER INFORMATION CONTACT: Karen V. Gregory, Secretary, Federal
Maritime Commission, 800 N. Capitol Street NW., Washington, DC 20573-
0001, (202) 523-5725, Fax (202) 523-0014, Email: [email protected].
SUPPLEMENTARY INFORMATION: While not statutorily mandated, current
Commission rules require Federal Register (FR) notice for both OTI
license applications, 46 CFR 515.12, and revocation or suspension of
OTI licenses, 46 CFR 515.16. The Commission has historically used the
FR to provide public notice of OTI licensing activity long before the
emergence and wide-spread use of the internet and before courts began
to often treat information on official government Web sites as proper
items for judicial notice.
Section 19(c) of the Shipping Act, 46 U.S.C. 40903, requires that
notice be provided prior to suspension or revocation of an OTI license.
The Administrative Procedures Act (APA), 5 U.S.C. 558, provides that an
agency must, when acting to withdraw, or annul a license required by
law, provide notice in writing of (1) the facts or conduct warranting
the action, and (2) opportunity for the licensee to demonstrate
compliance with the law. Neither the APA, nor the Freedom of
Information Act, 5 U.S.C. Sec. 552(a)(1)(A), specify that notice must
be published in the FR. Nonetheless, current Commission rules require
FR notice for both OTI license applications, 46 CFR 515.12, and
revocation or suspension of OTI licenses, 46 CFR 515.12.
Consequently, in the direct final rule published July 24, 2014 (79
FR 42986) the Commission amended its regulations to change the method
by which it provides notice of OTI
[[Page 56523]]
licensing matters by publishing the information it currently publishes
in the FR on the FMC's public Web site.
The Commission received one comment to the direct final rule from
UPS Ocean Freight Services, Inc., a licensed non-vessel-operating
common carrier (NVOCC); UPS Europe SPRL, a registered foreign NVOCC;
UPS Asia Group Pte. Ltd., a registered foreign NVOCC; and UPS Supply
Chain Solutions, Inc., a licensed freight forwarder (collectively
``UPS'').
UPS voiced concern that adoption of the direct final rule and ``. .
. reliance solely on a Web site, without the formal record and
archiving functions of Federal Register notices, places the general
shipping public, and licensed or registered OTIs in particular, at risk
when making or accepting ocean freight bookings with shipper OTIs.''
UPS noted the Shipping Act requirements contained in 46 U.S.C 41104(11)
and (12) as well as the Commission's regulations that prohibit
accepting cargo for transport, entering into a service contract, or
entering into arrangements with an unlicensed person. In this regard,
UPS raised concern about reliance on the ``current [FMC] Web site OTI
listing'' and noted that it does not appear to be a resource like the
FR that can be researched to determine the exact date on which the
Commission took action with respect to the status of an OTI. UPS is
concerned that ``if a carrier or forwarder is challenged by the
Commission staff with respect to the lawfulness of a particular booking
accepted from a shipper OTI, the exact date of such shipper OTI's
licensing or disqualification can be established with reference to a
source of which judicial notice will be taken.''
The Commission appreciates UPS's comments and concerns and
addresses those concerns by clarifying the effect of the proposed rule.
UPS's comments suggest that they believe adoption of this change will
result in replacing the OTI licensing information the Commission has
historically published in the FR solely with the information maintained
and listed on the Commission's Ocean Transportation Intermediaries
(OTI) List at http://www2.fmc.gov/oti/. This is not the Commission's
intention.
In changing its publication method from FR publication to Web site
publication pursuant to the direct final rule, the Commission plans to
create a new, dedicated Web page where it will continue to publish the
same OTI licensing information that it has historically published in
the FR, i.e., date of application, license number, applicant name,
applicant address, type of application, date of revocation, and reason
for revocation. The Commission will also create new Web pages to
archive older OTI licensing activity postings for easy reference and
historical research so the public and particularly carriers and OTIs
can determine the exact, official date the Commission took an action
with respect to the licensing status of an OTI. Therefore, the same OTI
licensing activity information that the Commission historically
published in the FR will now be published and searchable on the FMC's
public Web site including archived postings.
The Commission acknowledges that courts take judicial notice of
documents published in the FR with ease. Information on official
government Web sites has often been treated as proper content for
judicial notice because the nature of the material posted lends itself
to meeting the requirements under Federal Rule of Evidence 201(b).
Paralyzed Veterans of Am. v. McPherson, 2008 U.S. Dist. LEXIS 69542, at
*16-17 (N.D. Cal. 2008).
After careful review and consideration of UPS's comment submitted
in response to the direct final rule, the Commission has determined
that no further rulemaking action is necessary. Therefore, the direct
final rule published July 24, 2014 (79 FR 42986) will become effective
as scheduled on September 22, 2014.
By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2014-22426 Filed 9-19-14; 8:45 am]
BILLING CODE 6730-01-P