75850 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

1 DOJ filed its comments on December 3, 2004, 

along with a motion requesting leave to submit its 

comments past the deadline. We agree with DOJ’s 

assertion that the public interest will be served and 

no prejudice will result, and have accepted the late 

filing.

V. Deletion Action 

The EPA, with concurrence of the 

State of Colorado, has determined that 

all appropriate responses, for the 9.84 

acres containing two historic structures, 

under CERCLA have been completed, 

and that no further response actions, 

under CERCLA, other than O&M and 

five-year reviews, are necessary. 

Therefore, EPA is partially deleting the 

Site from the NPL. 

Because EPA considers this action to 

be noncontroversial and routine, EPA is 

taking it without prior publication. This 

action will be effective February 18, 

2005, unless EPA receives adverse 

comments by January 19, 2005. If 

adverse comments are received within 

the 30-day public comment period, EPA 

will publish a timely withdrawal of this 

direct final notice of deletion before the 

effective date of the deletion and it will 

not take effect and, EPA will prepare a 

response to comments and continue 

with the deletion process on the basis of 

the notice of intent to delete and the 

comments already received. There will 

be no additional opportunity to 

comment.

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

Waste, Hazardous substances, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply.

Dated: December 6, 2004. 

Max Dodson, 

Acting Regional Administrator, Region 8.

■ For the reasons set out in this 

document, 40 CFR part 300 is amended 

as follows:

PART 300—[AMENDED]

■ 1. The authority citation for part 300 

continues to read as follows:

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O.12777, 56 FR 54757, 3 CFR, 

1991 Comp., p.351, E.O. 12580, 52 FR 2923, 

3 CFR, 1987 Comp., p.193.

Appendix B—[Amended]

■ 2. Table 1 of Appendix B to Part 300 

is amended by revising the entry for 

‘‘Uravan’’ by adding a note ‘‘P’’ so that 

it reads as follows:

TABLE 1.—GENERAL SUPERFUND

SECTION

State Site 

name 

City/county Notes(a) 

CO ...... Uravan 

Uranium 

Project 

(Union 

Carbide).

Uravan ... P 

(a) * * * 

*****

P = Sites with partial deletion(s). 

[FR Doc. 04–27551 Filed 12–17–04; 8:45 am] 

BILLING CODE 6560–50–P

FEDERAL MARITIME COMMISSION

46 CFR Part 531 

[Docket No. 04–12] 

RIN 3072–AC30 

Non-Vessel-Operating Common Carrier 

Service Arrangements

AGENCY: Federal Maritime Commission.

ACTION: Final rule.

SUMMARY: The Federal Maritime 

Commission is exempting non-vesseloperating common carriers from the 

tariff publication requirements of the 

Shipping Act of 1984, subject to certain 

filing and publication conditions placed 

on these Non-Vessel-Operating Common 

Carrier Service Arrangements or 

‘‘NSAs.’’ This final rule: Revises the rule 

as proposed to allow affiliates of NSA 

signatories to have access to service, and 

to provide service under an NSA; 

corrects typographical errors and an 

internal reference; and deletes a portion 

of Form FMC–78 that affects only 

internal agency use.

DATES: Effective January 19, 2005.

FOR FURTHER INFORMATION CONTACT: 

Amy W. Larson, General Counsel, 

Federal Maritime Commission, 800 N. 

Capitol St., NW., Washington, DC 

20573–0001, (202) 523–5740, 

generalcounsel@fmc.gov; 

Austin L. Schmitt, Director of 

Operations, Federal Maritime 

Commission, 800 N. Capitol St., NW., 

Washington, DC 20573–0001, (202) 

523–0988.

SUPPLEMENTARY INFORMATION: On 

October 28, 2004, the Federal Maritime 

Commission (‘‘FMC’’ or ‘‘Commission’’) 

issued a notice of proposed rulemaking 

(‘‘NPR’’) pursuant to its authority under 

section 16 of the Shipping Act of 1984 

(‘‘Shipping Act’’), 46 U.S.C. app. § 1715, 

to exempt non-vessel-operating common 

carriers (‘‘NVOCCs’’) from the tariff 

publication requirements of the 

Shipping Act, subject to certain 

conditions. 69 FR 63981 (Nov. 3, 2004). 

Interested persons were given until 

November 19, 2004, to comment on the 

NPR. This deadline was later extended 

to November 30, 2004 in response to a 

request from the U.S. Department of 

Justice (‘‘DOJ’’). 

The Commission received comments 

on the NPR from: Transoceanic 

Shipping Co., Inc. and Jagremar Marine, 

Inc. (‘‘Transoceanic’’); NVOCC 

Committee of China Association of 

Shipping Agency (‘‘CASA’’); the 

American Institute for Shippers’

Associations, Inc. (‘‘AISA’’); the 

National Customs Brokers and 

Forwarders Association of America, Inc. 

(‘‘NCBFAA’’); the North Atlantic 

Alliance Association, Inc. (‘‘NAAA’’); 

the Fashion Accessories Shippers 

Association, Inc. (‘‘FASA’’); the Pacific 

Coast Tariff Bureau (‘‘PCTB’’); the 

International Shippers’ Association 

(‘‘ISA’’); DOJ; 1 and joint comments from 

the National Industrial Transportation 

League, United Parcel Service, Inc., 

BAX Global, Inc., Transportation 

Intermediaries Association, Fedex Trade 

Networks Transport and Brokerage, Inc., 

C.H. Robinson Worldwide, Inc., and 

BDP International, Inc. (‘‘Joint 

Commenters’’).

The exemption as proposed would 

allow individual NVOCCs to offer 

NVOCC Service Arrangements (‘‘NSAs’’) 

to NSA shippers, provided that such 

NSAs are filed with the Commission 

and their essential terms are published 

in the NVOCC’s tariff. The proposed 

rule defined an NSA as ‘‘a written 

contract, other than a bill of lading or 

receipt, between one or more NSA 

shippers and an individual NVOCC 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.’’ 69 FR at 63990. 

The proposed rule defined an ‘‘NSA 

shipper’’ as a cargo owner, the person 

for whose account the ocean 

transportation is provided, the person to 

whom delivery is to be made, or a 

shippers’ association. Id. This proposed 

definition, however, specifically did not 

include NVOCCs or shippers’

associations with NVOCC members. Id.

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 75851

2The Commission’s views on the inapplicability 

of Shipping Act antitrust immunity to service 

contracts between VOCCs and NVOCCs is reflected 

in the committee report on the bill that became the 

Ocean Shipping Reform Act of 1998. See, Report of 

the Committee on Commerce, Science and 

Transportation on S.414, S.Rep. No. 105–61 at 20 

(July 31, 1997). See also, FASA at 5. 3 In order to do the same, VOCCs must file 

agreements with the Commission, which are 

available for public review and comment. 4Horizontal price fixing might also be 

accomplished in an NSA where the carrier NVOCC 

and the shipper NVOCC are also competitors.

Commenters generally support the 

rule as proposed and urge the 

Commission to act expeditiously to 

provide the relief it represents. AISA at 

1; NCBFAA at 1, 4; ISA at 2; DOJ at 2; 

Joint Commenters at 1; Transoceanic at 

1. But see FASA at 2 (rule is not within 

agency’s authority). The Joint 

Commenters believe the rule as 

proposed represents ‘‘a progressive 

solution which will be beneficial at all 

levels of the U.S. ocean transportation 

industry.’’ Joint Commenters at 3. The 

Joint Commenters also urge the 

Commission not to delay the 

implementation of the exemption now 

to further consider how conditions other 

than those already proposed might 

ensure that competition is not 

substantially harmed. They assert that if 

the conditions imposed on the 

exemption as proposed later prove to be 

‘‘unnecessarily burdensome, or [that a] 

less onerous means of achieving the 

same end can be fashioned, the 

Commission could consider subsequent 

adjustments.’’ Id. at 2. DOJ states that 

the ‘‘proposal would promote 

competition in ocean transportation.’’

DOJ at 2. 

I. Antitrust Immunity for NSA Activity 

and Substantial Reduction in 

Competition 

The NPR explained the Commission’s 

rationale for limiting the exemption to 

NSAs offered by an individual NVOCC 

acting as carrier and a non-NVOCC 

shipper as follows. Courts may interpret 

the coordinated activity of multiple 

NVOCCs offering NSAs, and of NSAs 

between one NVOCC acting as a carrier 

and one NVOCC acting as a shipper, as 

immune from the antitrust laws under 

section 7(a)(2) of the Shipping Act, 46 

U.S.C. app. 1706(a)(2). 69 FR 63986–

63987. Section 16 of the Shipping Act, 

46 U.S.C. app. 1715, gives the 

Commission the authority to make rules 

exempting regulated entities from the 

requirements of the Shipping Act only 

if it finds the exemption will not result 

in substantial reduction in competition 

or detriment to commerce. Id. The 

Commission determined that, in order 

to ensure that the exemption as 

proposed will not result in a substantial 

reduction in competition, it must limit 

the exemption to individual NVOCCs 

acting in their capacity as carriers. This 

is the case because antitrust immunity 

under section 7(a)(2), along with a lack 

of regulatory oversight, could 

substantially reduce competition. 

Several commenters disagree with 

this finding. They argue that no such 

reduction in competition will occur 

because, unlike those of vesseloperating common carriers (‘‘VOCCs’’) 

or marine terminal operators (‘‘MTOs’’), 

the concerted activities of NVOCCs are 

not entitled to immunity from the 

antitrust laws by any provision of the 

Shipping Act. They regard the 

Commission’s concern that the holding 

of United States v. Tucor, 189 F.2d 834 

(9th Cir. 1999) may have this effect as 

misplaced because Tucor is either 

incorrect or inapposite to the analysis of 

immunity granted by section 7(a)(2), 46 

U.S.C. app. 1706(a)(2). AISA at 13–14; 

NCBFAA at 5; ISA at 6–9; DOJ at 2–3; 

compare, FASA at 4–5. Furthermore, 

commenters assert that not only would 

such activity be subject to the regulatory 

oversight of DOJ under the antitrust 

laws, it would also be subject to 

Commission oversight under section 

10(c) of the Shipping Act (e.g., 46 U.S.C. 

app. 1709(c)(1)–(5)). Joint Commenters 

at n.1; FASA at 3. 

Three commenters argue that the 

Commission should allow groups of 

NVOCCs to offer NSAs as carriers and 

to enter into NSAs as shippers because 

there is no way that such action could 

result in substantial harm to 

competition. NCBFAA at 5; NAAA at 8; 

ISA at 8, 9, 11. Similarly, three 

commenters specifically argue that 

shippers’ associations with NVOCC 

members should be able to enter into 

NSAs as shippers. ISA at 8–12; NAAA 

at 8; AISA at 15–16. AISA makes several 

arguments to support this position: the 

Commission does not have the authority 

to regulate the membership of shippers’

associations; DOJ’s safe harbor 

guidelines for shippers’ associations are 

sufficient; restricting shippers’

associations’ uses of NSAs would be an 

‘‘arbitrary and capricious’’ policy; and 

such a limitation would reduce 

competition. AISA at 1, 5–10, 11, 15–16. 

ISA requests that, if the Commission 

finds it cannot allow NVOCCs to act as 

shippers, it should make an exception 

limited to household goods NVOCC 

shippers’ associations. ISA at 14. FASA, 

on the other hand, believes the 

Commission is correct to be concerned 

about the competitive impact of NVOCC 

collusion because there are NVOCCs 

that hold enormous market power and 

could ‘‘easily engage in discriminatory 

tactics against target [beneficial cargo 

owner shippers’] associations.’’ FASA at 

4.

The Commission agrees with the 

commenters that the rationale of Tucor

is incorrect and that its direct 

precedential value is limited to section 

7(a)(4) of the Shipping Act, 46 U.S.C. 

1706(a)(4).2 However, other tribunals 

may find Tucor’s analysis of section 

7(a)(4), which the court read in isolation 

from the balance of the statute, 

analogous to section 7(a)(2), 46 U.S.C. 

app. 1706(a)(2). This is true because a 

court could regard an NSA-related 

activity as an activity within the scope 

of the Shipping Act undertaken with a 

reasonable basis to conclude that it is 

‘‘exempt from any publication * * * 

requirement of this Act.’’ 46 U.S.C. app. 

1706(a)(2)(B)(emphasis added). Such a 

judicial interpretation would result in a 

vacuum of regulatory oversight over 

anti-competitive arrangements 

undertaken under the cloak of an NSA. 

While we would disagree with it, we 

must consider the likelihood of such an 

outcome in light of Tucor.

We agree with FASA that competing 

NVOCCs acting together clearly have the 

ability to affect competition.3 By 

agreeing to jointly offer an NSA to a 

shipper, they would collectively fix a 

price for their services, i.e., a horizontal 

price-fixing agreement. The 

Commission’s concern with NVOCCs 

acting as shippers in NSAs, either 

individually or collectively through 

shippers’ associations, may be price 

fixing by NVOCCs who resell the service 

they are jointly purchasing to end-users 

(beneficial cargo interest shippers).4 The 

under-20% market share threshold of 

the DOJ ‘‘safe harbor’’ provisions for 

joint purchasing agreements by itself 

does not appear to completely cover 

NVOCC shippers’ associations as it may 

beneficial cargo interest shippers’

associations. See, Antitrust Division 

Response to Request for Business 

Review Letter—Household Goods 

Forwarders Association of America, Inc. 

September 19, 1985, B.R.L. 85–21, 1985 

WL 71889 (DOJ) (unopposed because 

there was no collective rate making or 

discussions and because the negotiation 

of rates for services in a market 

substantially controlled by the group 

expressly was not authorized). In any 

case, if activity under an NSA is 

immunized from the antitrust laws, 

DOJ’s policy guidance on shippers’

associations would become 

inapplicable.

There is nothing in the text of the 

Shipping Act to prevent the concurrent 

jurisdiction of the Commission under 

section 10(c) of the Shipping Act and 

75852 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

the agencies responsible for 

enforcement of the general antitrust 

laws over NSAs. However, if NSA 

activities are judged immune from the 

antitrust laws under section 7(a)(2) of 

the Shipping Act, there appears to be no 

prohibition in section 10(c) specifically 

applicable to NSAs to address pricefixing or market division, activities 

which are almost universally accepted 

as the most egregious types of 

anticompetitive behavior. Therefore, 

even if the Commission were to find 

that the provisions of section 10(c) 

applied generally to NVOCC collective 

activity, because a court might find 

NVOCCs immune from the antitrust 

statutes, there may be no regulation of 

such patently anticompetitive 

arrangements if they are undertaken 

through an NSA. 

Accordingly, the Commission has 

determined at this time not to extend 

the definition of NSAs to include 

arrangements between two NVOCCs, 

whether individually or acting in 

concert through a shippers’ association, 

due to the potential that they may 

include activities considered per se anticompetitive under the Sherman Act, 15 

U.S.C. § 1. The lack of oversight over the 

competitive impacts of activities 

undertaken through NSAs may lead to 

the substantial reduction in competition 

that section 16 prohibits. As such, the 

Commission finds that at this time it 

must limit the exemption as set forth in 

the proposed rule. However, in 

accordance with the recommendations 

of the Joint Commenters, as we gain 

further experience regarding the 

practical effects of the exemption, and 

as the courts assess the scope of the 

antitrust immunity the Shipping Act 

grants, the Commission will continue to 

consider whether there are other means 

to ensure NSAs meet the criteria of 

section 16. 

II. Affiliates’ Access to NSAs 

The Joint Commenters and CASA 

believe the Commission should allow 

affiliated NVOCCs to jointly offer NSAs. 

Joint Commenters at 3; CASA at 1–2. 

PCTB and CASA similarly argues that 

shippers’ affiliates should be able to 

have access to NSAs negotiated by a 

related entity. PCTB at 3–4; CASA at 1–

2. The Joint Commenters point out that 

the Supreme Court has held that the 

coordinated activities of a parent and its 

wholly-owned subsidiary must be 

viewed as a single entity for purposes of 

restraint of trade analysis under section 

1 of the Sherman Act. Copperweld Corp.

v. Independence Tube Corp., 467 U.S. 

752 (1984). 

We agree that the analysis of 

Copperweld with respect to competition 

under the antitrust laws and the 

Commission’s service contract rules 

with respect to competitive analysis 

under the Shipping Act are 

appropriately applied to the 

Commission’s approach to NSAs, and 

therefore have decided to allow the 

participation of affiliates to the NSA 

signatory parties. The Commission 

accordingly: (1) Revises the proposed 

rule’s requirements for NSAs at section 

531.6(b)(9); (2) revises the definition of 

‘‘NSA’’ (Final Rule at section 531.3(p)); 

and (3) adds a definition of ‘‘affiliate’’

(Final Rule at section 531.3(b)), based 

on the language proposed by the Joint 

Commenters. Joint Commenters at 3–4.

Proposed section 531.6(b)(9) is 

revised as follows:

The legal names and business addresses of 

the NSA parties; the legal 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.

Similarly, the Commission adds the 

following definition of ‘‘affiliate’’ in 

section 531.3(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. 

The Final Rule revises the definition 

of NSA (section 531.3(o) as proposed; 

section 531.3(p) in the Final Rule), as 

follows:

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.

Finally, the definition of ‘‘NSA 

shipper’’ as it appeared in the proposed 

rule contained a typographical error. 

The Final Rule corrects this error and 

eliminates the article ‘‘a’’ appearing 

before ‘‘shippers’ associations.’’ The 

definition section in 531.3(o) as final 

reads, ‘‘NSA shipper means a cargo 

owner, the person for whose account the 

ocean transportation is provided, the 

person to whom delivery is to be made, 

or a shippers’ association. The term 

does not include NVOCCs or shippers’

associations whose membership 

includes NVOCCs.’’

III. Other Matters 

NCBFAA and DOJ argue that the 

exemption should be broadened to 

exempt all NVOCCs from all tariff 

publication requirements without 

condition because such requirements 

are unnecessary. NCBFAA at 2,6; DOJ at 

2. The Commission, NCBFAA argues, 

has never explained how these 

conditions will protect competition and 

improperly relies on the eliminated 

‘‘ability to regulate’’ criterion. NCBFAA 

at 6. NCBFAA argues that the proposed 

rule’s view that the filed rate doctrine is 

no longer ‘‘sacrosanct’’ is correct; NSA 

rates would be ‘‘applicable’’ or ‘‘legal’’

even if not filed with the Commission. 

NCBFAA at 8–10. 

Either eliminating the tariff 

publication requirement completely 

and/or eliminating the condition of the 

exemption that all NSAs be filed with 

the Commission and their essential 

terms be published could substantially 

impact the competition between large 

NVOCCs and VOCCs (who continue to 

be required to publish their tariffs, file 

service contracts and publish service 

contract essential terms) by continuing 

to impose costs on one while relieving 

costs for the other. We anticipate 

NVOCCs who offer NSAs may wish to 

use their tariffs in much the same way 

as VOCCs do for service contracts, as a 

convenient place to house generallyapplicable provisions. 

PCTB questions whether the 

Commission intended to allow NSAs to 

make reference to tariff publications of 

NVOCCs other than that offering the 

NSA. PCTB at 4–5. We agree with PCTB 

that doing so would likely be confusing 

to shippers and we revise section 

531.6(c)(2) of the Final Rule 

accordingly. The Commission will 

endeavor, as PCTB has requested, to 

post ‘‘frequently asked questions’’

regarding NSAs on its Web site. 

Finally, the Final Rule makes several 

typographical corrections. It corrects the 

facsimile number to which registrants 

may file Forms FMC–78 in section 

531.5(d)(1) and the Instructions for 

Form FMC–78. It corrects the internal 

reference to cancellations in section 

531.8(d)(2). The line for indicating the 

initially assigned password appearing in 

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 75853

the ‘‘FMC use only’’ portion of Form 

FMC–78 has been eliminated. 

IV. Statutory Reviews 

In accordance with the Paperwork 

Reduction Act, 44 U.S.C. 3507, the 

Commission has submitted estimated 

burdens of collection of information 

authorized by this Final Rule to the 

Office of Management and Budget 

(‘‘OMB’’). The estimated total annual 

burden for the estimated 110 annual 

respondents is 165,932 manhours. No 

comments were received on this 

estimate. 

In accordance with the Regulatory 

Flexibility Act, 5 U.S.C. 605, the 

Chairman of the Federal Maritime 

Commission has certified to the Chief 

Counsel for Advocacy, Small Business 

Administration, that the Final Rule will 

not have a significant impact on a 

substantial number of small entities. 

Although NVOCCs as an industry 

include small entities, the Final Rule 

provides, but does not require, an 

alternative for NVOCCs, from the 

otherwise applicable tariff publication 

requirements of the Shipping Act and 

the Commission’s regulations. It 

potentially relieves a burden. Therefore, 

the Commission has found that the 

Final Rule will have no significant 

economic impact on a substantial 

number of small entities.

List of Subjects in 46 CFR Part 531 

Exports, Non-vessel-operating 

common carriers, Ocean transportation 

intermediaries.

■ Accordingly, the Federal Maritime 

Commission adds 46 CFR part 531 as 

follows:

PART 531—NVOCC SERVICE 

ARRANGEMENTS

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.

Subpart A—General Provisions

§ 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.

§ 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.

§ 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 § 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. 

75854 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

(o) NSA shipper means a cargo owner, 

the person for whose account the ocean 

transportation is provided, the person to 

whom delivery is to be made, or a 

shippers’ association. The term does not 

include NVOCCs or shippers’

associations whose membership 

includes NVOCCs. 

(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.

§ 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.

§ 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 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.

Subpart B—Filing Requirements

§ 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 nonperformance (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 

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 

§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 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. 

(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 §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 

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 75855

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 application of the terms of the 

otherwise applicable tariff.

§ 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 

§531.5 and Appendix A to this part, a 

detailed notice of: 

(a) Correction; 

(b) Cancellation; 

(c) Adjustment of accounts, by rerating, 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.

§ 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 

§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 

§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 

adjustment necessitated by either 

liability for liquidated damages 

appearing in the NSA as filed with the 

Commission under §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 §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 §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

§ 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 

§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. 

75856 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

5Commissioner Brennan issued the following 

statement: I strongly support the concept of 

allowing NVOCCs to offer confidential contracts. I 

voted against the draft final rule because it does not 

go far enough. For example, the exemption does not 

allow shippers’ associations, which are often made 

up of small and medium-sized shippers, to use 

confidential contracts unless the association 

excludes an NVO member of the association.

(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

§ 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. 

(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 § 531.3(e) and 

§ 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.

§ 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

§ 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.

§ 531.13–531.98 [Reserved]

§ 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 3072–0067. The valid 

control number for form FMC–78 is 

3072–0067.

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 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.

By the Commission.5

Bryant L. VanBrakle, 

Secretary.

BILLING CODE 6730–01–P

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 75857


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75858 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 


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ER20DE04.119</GPH>
75860 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

[FR Doc. 04–27803 Filed 12–17–04; 8:45 am] 

BILLING CODE 6730–01–C

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 04–3808; MM Docket No. 01–120; RM–

10126] 

Radio Broadcasting Services; Lincoln 

and Sherman, IL

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: This document denies a 

Petition for Reconsideration filed by 

Long Nine, Inc. directed to the Report 

and Order in this proceeding. See 67 FR 

16652, April 8, 2002. With this action, 

the proceeding is terminated.

FOR FURTHER INFORMATION CONTACT:

Robert Hayne, Media Bureau, (202) 418–

2177.

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Memorandum Opinion 

and Order in MM Docket No. 01–120 

adopted December 1, 2004, and released 

December 3, 2004. The full text of this 

decision is available for inspection and 

copying during normal business hours 

in the FCC Reference Information Center 

at Portals ll, CY–A257, 445 12th Street, 

SW., Washington, DC. The complete 

text of this decision may also be 

purchased from the Commission’s copy 

contractor, Best Copy and Printing, Inc., 

445 12th Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1–

800–378–3160 or http://

www.BCPIWEB.com. The Commission 

will not send a copy of this 

Memorandum Opinion and Order

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A), because 

the aforementioned petition for 

reconsideration was denied.

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau.

[FR Doc. 04–27797 Filed 12–17–04; 8:45 am] 

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 04–3616; MM Docket No. 02–212; RM–

10516, RM–10618] 

Radio Broadcasting Services; Crystal 

Beach, TX, Lumberton, TX, Vinton, LA 

and Winnie, TX

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: This document denies a 

Petition for Reconsideration filed by 

Charles Crawford directed to the Report 

and Order in this proceeding. See 69 FR 

29241, May 21, 2004. With this action, 

the proceeding is terminated.

FOR FURTHER INFORMATION CONTACT:

Robert Hayne, Media Bureau, (202) 418–

2177.

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Memorandum Opinion 

and Order in MM Docket No.02–212 

adopted November 24, 2004, and 

released November 26, 2004. The full 

text of this decision is available for 

inspection and copying during normal 

business hours in the FCC Reference 

Information Center at Portals ll, CY–

A257, 445 12th Street, SW., 

Washington, DC. The complete text of 

this decision may also be purchased 

from the Commission’s copy contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1–

800–378–3160 or http://

www.BCPIWEB.com. The Commission 

will not send a copy of this 

Memorandum Opinion and Order

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A), because 

the petition was reconsideration was 

denied.

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau.

[FR Doc. 04–27796 Filed 12–17–04; 8:45 am] 

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 04–3809; MB Docket No. 04–67; RM–

10856] 

Radio Broadcasting Services; 

Easthampton, MA; Malta, NY; and 

Pittsfield, MA

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: In response to a Notice of 

Proposed Rule Making, 69 FR 16202 

(March 29, 2004) this Report and Order

upgrades Channel 289A, Station 

WNYQ(FM), Malta, New York, to 

Channel 289B1; reallots Channel 288A, 

Station WBEC–FM, Pittsfield, 

Massachusetts, to Easthampton, 

Massachusetts; and modifies Station 

WBEC–FM’s license accordingly. The 

coordinates for Channel 289B1 at Malta, 

New York, are 42–58–17 NL and 73–40–

52 WL, with a site restriction of 9.1 

kilometers (5.7 miles) east of Malta. The 

coordinates for Channel 288A at 

Easthampton, Massachusetts, are 42–

18–52 NL and 72–41–18 WL, with a site 

restriction of 5.5 kilometers (3.4 miles) 

north of Easthampton.

DATES: Effective January 18, 2005.

FOR FURTHER INFORMATION CONTACT:

R. Barthen Gorman, Media Bureau, (202) 

418–2180.

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Report 

and Order, MB Docket No. 04–67, 

adopted December 1, 2004, and released 

December 3, 2004. The full text of this 

Commission decision is available for 

inspection and copying during normal 

business hours in the FCC’s Reference 

Information Center at Portals II, 445 

12th Street, SW., Room CY–A257, 

Washington, DC, 20554. The document 

may also be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., Portals II, 

445 12th Street, SW., Room CY–B402, 

Washington, DC, 20554, telephone 1–

800–378–3160 or http://

www.BCPIWEB.com. The Commission 

will send a copy of the Report and 

Order in a report to be sent to Congress 

and the General Accounting Office 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting.

■ Part 73 of Title 47 of the Code of 

Federal Regulations is amended as 

follows:

PART 73—RADIO BROADCASTING 

SERVICES

■ 1. The authority citation for Part 73 

reads as follows:

Authority: 47 U.S.C. 154, 303, 334, and 

336.

§ 73.202 [Amended]

■ 2. Section 73.202(b), the Table of FM 

Allotments under Massachusetts, is 

amended by removing Channel 288A at 

Pittsfield, and adding Easthampton, 

Channel 288A.