[Federal Register: February 14, 2005 (Volume 70, Number 29)]
[Notices]
[Page 7503-7504]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14fe05-56]
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FEDERAL MARITIME COMMISSION
[Docket No. 04-12]
Non-Vessel-Operating Common Carrier Service Arrangements
Served: February 8, 2005.
Order
The Commission's rule exempting non-vessel-operating common
carriers (NVOCCs) from the Shipping Act's tariff publication
requirements, conditioned upon the filing of confidential service
arrangements (NSAs), went into effect on January 19, 2005. 69 FR 75850
(Dec. 20, 2004). The International Shippers' Association (ISA) and the
American Institute for Shippers' Associations (AISA) have filed
petitions seeking reconsideration of the new rule, and asking the
Commission to stay the effectiveness of that rule.\1\ Both petitions
were filed under Rule 261 of the Commission's Rules of Practice and
Procedure; both also seek a waiver, under Rule 10, if the Commission
finds them deficient under Rule 261.
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\1\ ISA's petition was filed on January 7, 2005, and AISA's
petition was filed on January 11. The 15 day comment periods for
both petitions extended beyond the scheduled effective date of the
new rule. See 46 CFR 502.74. However, neither petitioner requested a
shorter comment period for consideration of its request for a stay.
See 46 CFR 502.103 (time may be shortened ``for good cause'').
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For the reasons set forth below, we summarily reject both
petitions, pursuant to Rule 261. We further deny the requests for
waiver under Rule 10, and deny the requests for stay as moot.
[[Page 7504]]
I. Background
Both ISA and AISA participated in the NSA rulemaking by filing
comments, and both objected to the Commission's determination not to
allow NVOCCs, in their capacity as shippers, to enter into NSAs. They
disagreed with the Commission's decision to define ``NSA shipper'' as
excluding ``NVOCCs or shippers' associations whose membership includes
NVOCCs.'' 46 CFR 531.3(o). ISA and AISA now contend that in the
rulemaking process, the Commission failed to consider their arguments;
acted beyond its statutory authority in enacting the new rule; failed
to adequately analyze the rule's potential effects on competition
between large NVOCCs and smaller NVOCCs; and improperly regulated the
membership of shippers' associations.
Two joint replies in opposition to the petitions were filed by the
National Industrial Transportation League, United Parcel Service, BAX
Global, FedEx Trade Networks Transport & Brokerage, the Transportation
Intermediaries Association, C.H. Robinson Worldwide, and BDP
International. The first joint reply addresses the two petitions'
request for a stay of the rule's effective date, arguing that a stay is
not warranted. The second joint reply contends that the substantive
arguments advanced by the two petitioners are erroneous. In particular,
the second joint reply argues that the Commission did make adequate
findings concerning the new rule's potential effects on competition,
and that the new rule is within the agency's statutory authority under
section 16 of the Shipping Act, 46 U.S.C. app. 1715.
II. Discussion
Both petitions were filed pursuant to the Commission's Rule 261.
That rule provides:
(a) Within thirty (30) days after issuance of a final decision
or order by the Commission, any party may file a petition for
reconsideration * * *. 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.
46 CFR 502.261(a).
We conclude that the two petitions have failed to meet any one of
these standards. First, neither petition alleges that there has been a
``change in material fact or in applicable law'' subsequent to the
issuance of the Commission's new rule. Neither petition cites an
intervening judicial decision published subsequent to the issuance of
the Commission's rule, nor to any alleged changes in material fact.
Second, neither petition seeks to identify ``a substantive error in
material fact'' within the Commission's new rule. On the contrary, both
petitions contend that the Commission reached an erroneous legal
conclusion. As the text of Rule 261 makes clear, however, this is not
an acceptable ground for seeking reconsideration.
Finally, neither ISA nor AISA contends that it did not have the
opportunity to comment on any provision of the rule. Indeed, AISA even
incorporates by reference its previously filed comments, in lieu of
reiterating them. See AISA Petition at 2.
Pursuant to the standards of Rule 261, both petitions will be
summarily rejected. See 46 CFR 502.261 (petitions failing to meet
threshold standard for reconsideration ``will be'' summarily rejected).
Both petitioners also request, if their petitions are deemed subject to
summary rejection, that the Commission instead grant a waiver of Rule
261's requirements, pursuant to Rule 10. That rule provides:
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.
46 CFR 502.10.
Neither petition sets forth an argument why summary rejection would
constitute ``undue hardship'' or ``manifest injustice,'' and neither
contends that the ``expeditious conduct of business'' requires a
waiver. Accordingly, the Commission concludes that ``undue hardship''
or ``manifest injustice'' will not arise from the summary rejection of
the two petitions for reconsideration. The requests for a waiver are
denied.
Finally, both petitions ask the Commission to stay the effective
date of the new rule. As mentioned, the rule went into effect on
January 19. The requests for stay are denied as moot.
III. Conclusion
We summarily reject the two petitions for reconsideration, decline
to authorize a waiver under Rule 10, and deny the requests for stay as
moot.
Therefore, it is ordered, That the petitions are denied.
By the Commission.
Karen V. Gregory,
Assistant Secretary.
[FR Doc. 05-2796 Filed 2-11-05; 8:45 am]
BILLING CODE 6730-01-P