Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Notices 5005

Swift, Traverse, Watonwan, Wilkin, and

Yellow Medicine.

(Catalog of Federal Domestic Assistance No.

83.516, Disaster Assistance)

James L. Witt,

Director.

[FR Doc. 97–2565 Filed 1–31–97; 8:45 am]

BILLING CODE 6718–02–P

[FEMA–1153–DR]

Nevada; Amendment to Notice of a

Major Disaster Declaration

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Notice.

SUMMARY: This notice amends the notice

of a major disaster for the State of

Nevada, (FEMA–1153–DR), dated

January 3, 1997, and related

determinations.

EFFECTIVE DATE: January 17, 1997.

FOR FURTHER INFORMATION CONTACT:

Magda Ruiz, Response and Recovery

Directorate, Federal Emergency

Management Agency, Washington, DC

20472, (202) 646–3260.

SUPPLEMENTARY INFORMATION: The notice

of a major disaster for the State of

Nevada, is hereby amended to include

the Hazard Mitigation Grant program in

those areas determined to have been

adversely affected by the catastrophe

declared a major disaster by the

President in his declaration of January

3, 1997:

The Independent City of Carson City and

the counties of Churchill, Douglas, Lyon,

Mineral, Storey, and Washoe, including the

Walker River Paiute tribal lands located in

Lyon, Churchill, and Mineral Counties for

Hazard Mitigation assistance. (Already

designated for Individual Assistance and

Public Assistance).

(Catalog of Federal Domestic Assistance No.

83.516, Disaster Assistance)

Lacy E. Suiter,

Executive Associate Director, Response and

Recovery Directorate.

[FR Doc. 97–2564 Filed 1–31–97; 8:45 am]

BILLING CODE 6718–02–P

FEDERAL HOUSING FINANCE BOARD

Sunshine Act Meeting

Announcing an Open Meeting of the

Board

Time and Date: 9:00 a.m. Thursday,

February 6, 1997.

Place: Board Room, Second Floor, Federal

Housing Finance Board, 1777 F Street, NW.,

Washington, DC 20006.

Status: The entire meeting will be open to

the public.

Matters to be Considered During Portions

Open to the Public:

• Qualified Thrift Lender Test—Interim

Final Rule

• Federal Home Loan Bank of Seattle AHP

First-Time Homebuyer Set-Aside Program.

Contact Person for More Information:

Elaine L. Baker, Secretary to the Board, (202)

408–2837.

Rita I. Fair,

Managing Director.

[FR Doc. 97–2702 Filed 1–30–97; 12:51 pm]

BILLING CODE 6725–01–P

FEDERAL MARITIME COMMISSION

[Docket No. 86–9]

A/S Ivarans Rederi v. Companhia De

Navegacao Lloyd Brasileiro, et al.;

Order

This case originated with the

complaint of A/S Ivarans Rederi

(‘‘Ivarans’’) filed in 1986, which sought

a cease and desist order and reparations

for violations of the Shipping Act, 1916,

46 U.S.C. § 801 et seq. (1982) (‘‘1916

Act’’), and the Shipping Act of 1984, 46

U.S.C. app. § 1701 et seq. (‘‘1984 Act’’),

resulting from attempts by respondent

carrier members of the Brazil/U.S.

Atlantic Coast Pool Agreement (FMC

No. 10027) (‘‘Respondents’’), to enforce

an arbitration award obtained in Brazil.

The Commission’s proceeding was

discontinued in 1990 with the

understanding that no further efforts to

enforce the arbitration award would be

undertaken by the parties pursuant to

rulings by the U.S. Court of Appeals for

the D.C. Circuit that enforcement of the

arbitration award would result in

violation of the 1984 Act. Nevertheless,

it appears that a new effort to enforce

the arbitration award is being made in

Brazil by one of the original six

Respondents, Companhia de Navegacao

Maritima Netumar (‘‘Netumar’’).

Therefore, Ivarans filed the Motion to

Reinstate Complaint and for a Cease and

Desist Order (‘‘Motion’’) which is before

us.

Background

Ivarans, a party to Agreement No.

10027, a revenue pooling agreement in

the northbound Brazil/U.S. Atlantic

coast trade, filed its complaint against

the other members of the Agreement in

1986. In addition to Netumar and

Ivarans, the Respondents and parties to

the Agreement were Companhia de

Navegacao Lloyd Brasileiro (‘‘Lloyd

Brasileiro’’), another Brazilian-flag

carrier, referred to along with Netumar

and the U.S.-flag carrier (originally

Moore-McCormack succeeded by United

States Lines, (S.A.) Inc. (‘‘USLSA’’)) as

the ‘‘National-Flag Lines,’’ and Empresa

Lineas Maritimas Argentinas, S.A.

(‘‘ELMA’’), A. Bottachi S.A. de

Navigacion C.F.I.I. (‘‘Bottachi’’), and

Van Nievelt Goudriaan and Co., B.V.

(‘‘Hopal’’), referred to as the ‘‘Nonnational Flag Lines.’’

The Agreement divided the pool cargo

among the members, assigning an 80 per

cent share to the National-Flag Lines,

divided equally between Brazilian and

U.S.-flag lines, and a 20 per cent share

to the Non-national Flag Lines; provided

for a minimum number of sailings per

pool period for each member carrier;

established penalties for over-carriage;

and provided for automatic suspension

of the pool when any party or

combination of parties exceeding one

third of the total pool share failed to

provide the minimum number of

sailings.

In 1982, Moore-McCormack, then the

only U.S.-flag carrier member, fell

substantially short of its minimum 40

sailings. The other members of the

Agreement sought substantial penalties

from Ivarans which had carried a greater

proportion of the trade cargo as a result

of Moore-McCormack’s missed sailings.

Pursuant to the Agreement’s provision

for arbitration, an arbitration panel was

assembled in Brazil. The panel ruled

that the Agreement had not been

suspended during the 1982 pool period.

The panel found that Ivarans owed

some $1,475,017 in over-carriage

penalties to be paid to the other

agreement parties in proportion to their

pool shares. However, the panel

reasoned that, because MooreMcCormack’s failure to make its sailings

had been voluntary, the over-carriage

penalties due Moore-McCormack’s

corporate successor, USLSA, should be

paid instead to the remaining

Agreement parties in proportion to their

pool shares.

Ivarans then filed its FMC complaint,

contending that the interpretation of the

Agreement by the other parties and the

arbitration panel was inconsistent with

the Agreement’s own terms and the

Commission’s intention in approving

the Agreement and thus, enforcement of

the arbitration award would result in

implementation of the Agreement not in

accordance with its terms in violation of

the 1984 and 1916 Acts. The presiding

administrative law judge (‘‘ALJ’’) agreed

with the arbitration panel’s

interpretation of the Agreement, but

found that the remedy fashioned by the

arbitration panel was unauthorized by

the Agreement and that its

implementation would result in a

violation of the 1984 Act.

The Commission adopted this finding,

agreeing with the ALJ that the thrust of
5006 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Notices

1A/S Ivarans Rederi v. United States, 895, F.2d

1441 (D.C. Cir. 1990).

2 Ivarans served its Motion on counsel who had

represented Netumar, Lloyd Brasileiro, USLSA,

ELMA and Bottachi before the proceeding was

discontinued in 1990. It does not appear from the

record that service on attorneys who represented

Netumar in the bankruptcy proceeding was

attempted.

3This information is based on examination of the

Commission’s tariff and agreement files, of which

the Commission herein takes official notice

pursuant to 46 CFR § 502.161. Netumar’s only ATFI

tariff, Tariff No. 030, was canceled as of May 23,

1995 (Notice published in the Federal Register, 60

FR 25910 (May 15, 1995)). Netumar was reflected

in FMC tariff organization records as an affiliate of

the Inter-American Freight Conference until May

16, 1994.

the pooling agreement was to divide the

rights to pool cargo between NationalFlag Lines and Non-national Flag Lines,

and that the National-Flag Lines could

be considered as a group for purposes of

considering whether there was a failure

to meet its minimum sailings by any

party or combination of parties

exceeding one third of the total pool. In

addition, finding that the mere

‘‘homologation,’’ or judicial approval, of

the arbitration panel’s decision would

not result in the enforcement of the

unauthorized remedy, because the

arbitration award was not self-enforcing

and had, in fact, been vacated by a

Brazilian court, the Commission denied

the cease and desist order sought by

Ivarans.

On appeal by Ivarans, the U.S. Court

of Appeals for the D.C. Circuit reversed

the Commission’s dismissal of the

complaint, finding that the language of

the Agreement required that the

Agreement be suspended under the facts

presented.1 On remand, the Commission

again denied Ivarans’ request for an

order directing the Respondents to cease

and desist from attempting to collect

monies under the Agreement and for

attorney’s fees. The Commission

concluded that a cease and desist order

was unnecessary, despite the

intervening decision of the Brazilian

Supreme Court said to reinstate the

arbitrators’ award of pool payments for

the 1982 pool period when the

Agreement was suspended. The

Commission found Ivarans’ concerns

unwarranted, because ‘‘no payments

under the Agreement may lawfully be

made for the suspension period by

virtue of the Court of Appeals’ decision,

and enforcement of the Agreement for

this period appears unlikely.’’ ll

F.M.C. ll, 25 S.R.R. 1061, 1062

(1990). The Commission noted,

moreover, that USLSA had stated that it

‘‘will take no action to enforce the

arbitration award [,]’’ and that the

Brazilian and Argentina carriers

recognized that ‘‘the arbitral decision

was contrary to the terms of the Pooling

Agreement and could not be enforced by

any party without violating the 1984 Act

and/or the 1916 Act.’’ Id. at 1062.

Therefore, the Commission found no

indication that violation of the statute

was likely and considered an injunction

to obey the statute unnecessary. In

dismissing Ivarans’ compliant, however,

the Commission acted * * *

* * * without prejudice to its reinstatement

if any action is taken by respondents to

enforce the Agreement for the suspended

period.* * * Furthermore, to save Ivarans

the additional expense of filing a new

complaint * * *, the Commission will

permit reinstitution of this proceeding upon

motion * * * should further action with

respect to the complaint become necessary.

Id. at 1063.

Ivarans’ Motion To Reinstate the

Complaint and for a Cease and Desist

Order

After recounting the history of this

proceeding, Ivarans states in its Motion

that on April 11, 1996, Netumar secured

a judicial ‘‘Writ of Enforcement’’ from

the 33rd Civil Court of Rio de Janeiro for

enforcement of the arbitration award.

The amount claimed by Netumar for its

share of the original award plus interest

totals $936,587. No response to Ivarans’

Motion was received from any party.2

Ivarans reports that Netumar has filed

for protection from creditors under

Chapter 11 of the U.S. bankruptcy codes

and has obtained an order from the U.S.

bankruptcy court in Newark, N.J.,

bifurcating the case. Under the order,

the court declines jurisdiction over any

Netumar assets located in Brazil and

excludes from participation in the U.S.

bankruptcy case any claims arising from

or relating to transactions in Brazil or

creditors whose claims arise from such

transactions. Thus, Ivarans states, it will

be unable to secure relief from the U.S.

bankruptcy court if Netumar succeeds

in collecting the arbitration award in

Brazil. Ivarans states, to the best of its

knowledge, that Netumar has not filed

a bankruptcy petition in Brazil.

Ivarans requests that the Commission

reinstate this proceeding and order

Netumar to cease and desist from

proceeding in Brazil with its efforts to

enforce the arbitration award. Such an

order is appropriate, Ivarans advises,

because, absent such an order, Ivarans

will suffer irreparable injury, that is,

injury for which a later Commission

award for reparations would be

ineffective due to the Netumar

bankruptcy proceeding. Ivarans argues

that a cease and desist order is within

the Commission’s authority and is the

most appropriate form of relief, citing

Trans-Pacific Freight Conference v.

FMC, 314 F.2d 928 (9th Cir. 1963);

Pacific Coast European Conference v.

FMC, 537 F.2d 333 (9th Cir. 1976); and

FMC v. Australia/U.S. Atlantic & Gulf

Conference, 337 F.Supp. 1032 (S.D.N.Y.

1972). It is, says Ivarans, its intention to

present the cease and desist order to the

Brazilian court with a request that the

Brazilian court ‘‘recognize’’ the

Commission’s action as a matter of

comity.

Discussion

The relief requested by Ivarans was

denied by the Commission in 1990 only

because Netumar’s representations that

it recognized the unlawfulness of the

arbitration award under U.S. law

rendered a cease and desist order

unnecessary. The Commission stated

that:

It appears that no payments under the

Agreement may lawfully be made for the

suspension period by virtue of the court of

appeals’ decision and enforcement of the

Agreement for this period appears unlikely.

* * * Moreover, the Brazilian and

Argentinean carriers have done nothing to

date which would constitute a violation of

law. * * * [T]he Brazilian and Argentinean

carriers recognize that ‘‘the arbitral decision

is contrary to the terms of the Pooling

Agreement and could not be enforced by any

party without violating the 1984 Act and/or

the 1916 Act.’’ * * * We have no basis to

find that respondents will act to enforce a

decision which they recognize is unlawful,

and thus see no purpose to be served by

issuing a cease and desist order in this

proceeding.

25 S.R.R. at 1062.

However, since the last occasion on

which we had examined this matter,

Netumar appears to have ceased all

active service in the U.S. trades.

Netumar was a member of the InterAmerican Freight Conference until May

16, 1994. Netumar has no current tariff

on file with the Commission.3 We are

therefore concerned that the

Commission may lack jurisdiction over

Netumar because it is no longer a

common carrier in U.S. commerce.

Ivarans contends that, as a result of

Netumar’s action in Brazil, it is likely to

suffer injury for which it could not be

made whole. Ivarans argues that the

Commission would be unable to

effectively make an award of reparations

due to Netumar’s U.S. bankruptcy and

the order of the bankruptcy court

bifurcating the proceeding. Ivarans

indicates that it intends to present the

cease and desist order it requests from

the Commission to the Brazilian court,

with a request that it be recognized and

accorded ‘‘comity.’’ However, Ivarans

makes no statement as to whether it
Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Notices 5007

4A copy of Netumar’s March 7, 1996 application

to the Brazilian court for enforcement of the award

and an English translation are attached as Exhibit

1 to Ivarans’ Motion. However, no copies of other

pleadings or the court’s order of enforcement are

provided.

participated in the proceeding before

the Brazilian court before entry of the

order of enforcement; whether it has

presented or plans to present to the

Brazilian court the decision of the U.S.

Court of Appeals finding that the

arbitration award was not in accordance

with the Shipping Act of 1984; whether

it presented to the Brazilian court the

Commission’s 1990 order on remand or

Netumar’s own acknowledgment in the

Commission proceeding on remand that

‘‘the arbitral decision was contrary to

the terms of the Pooling Agreement and

could not be enforced by any party

without violating the 1984 Act and/or

the 1916 Act;’’ or whether Ivarans has

appealed the decision of the Brazilian

court.4 Nor does Ivarans raise or address

the issue of present Commission

jurisdiction over Netumar, or the

extraterritorial nature of the relief it

requests.

There is a troubling corollary issue

raised by Ivarans’ argument that the

Commission would be unable to

effectively make an award of reparations

due to Netumar’s U.S. bankruptcy and

the order of the bankruptcy court

bifurcating the proceeding; it is unclear

whether under these circumstances a

cease and desist order issued by the

Commission would be enforceable. We

are also concerned that the issue of

present Commission jurisdiction over

Netumar be addressed.

While Netumar may have acted in

violation of the 1984 Act by seeking to

enforce an unlawful interpretation of

the pooling agreement, Ivarans has not

offered compelling evidence that it has

been damaged by Netumar’s action.

Ivarans has not provided a copy of the

Brazilian court’s order of enforcement

nor any evidence of action by Netumar

to secure attachment or other action

against Ivarans’ assets in Brazil.

Therefore, we are disposed to grant

Ivarans’ Motion only to the extent of reopening the proceeding and allowing

Ivarans an opportunity to present

evidence as to the present status of

proceedings in Brazil (including the

orders of the Brazilian court not

previously provided by Ivarans in

support of its Motion), actual or likely

damages to Ivarans, and what form of

relief it believes the Commission can

effectively grant.

Therefore, it is ordered, That F.M.C.

Docket No. 86–9, A/S Ivarans Rederi v.

Companhia de Navegacao Lloyd

Brasileiro, et al., is re-opened and it is

referred to the Chief Administrative Law

Judge, for assignment and issuance of an

initial decision;

It is further ordered, That the

administrative law judge to whom this

proceeding is assigned shall exercise his

discretion to insure that the issues are

resolved by the most expeditious means

consistent with due process and a

sufficient record upon which to render

a decision;

It is further ordered, That the

following issues be addressed by Ivarans

in the proceeding:

1. Commission jurisdiction over

Netumar;

2. Ivarans’ role in the proceedings in

Brazil and the status of those

proceedings;

3. Damage to Ivarans resulting from

Netumar’s action; and

4. What relief the Commission might

effectively grant.

It is further ordered, That pursuant to

Rule 61 of the Commission’s Rules of

Practice and Procedure, 46 C.F.R.

§ 502.61, the initial decision of the

Administrative Law Judge shall be

issued by November 1, 1997 and the

final decision of the Commission shall

be issued by February 28, 1998;

It is further ordered, That notice of

this Order be published in the Federal

Register, and a copy be served on A/S

Ivarans Rederi;

It is further ordered, That other

persons having an interest in

participating in this proceeding may file

petitions for leave to intervene in

accordance with Rule 72 of the

Commission’s Rules of Practice and

Procedure, 46 C.F.R. § 502.72;

It is further ordered, That all further

notices, orders, and decisions issued by

or on behalf of the Commission in this

proceeding, including notice of the time

and place of hearing or prehearing

conference, shall be served on parties of

record; and

It is further ordered, That all

documents submitted by any party of

record in this proceeding shall be

directed to the Secretary, Federal

Maritime Commission, Washington,

D.C. 20573, in accordance with Rule 118

of the Commission’s Rules of Practice

and Procedure, 46 C.F.R. 502.118, and

shall be served on all parties of record.

By the Commission.

Joseph C. Polking,

Secretary.

[FR Doc. 97–2531 Filed 1–31–97; 8:45 am]

BILLING CODE 6730–01–M

FEDERAL RESERVE SYSTEM

Change in Bank Control Notices;

Acquisitions of Shares of Banks or

Bank Holding Companies

The notificants listed below have

applied under the Change in Bank

Control Act (12 U.S.C. 1817(j)) and §

225.41 of the Board’s Regulation Y (12

CFR 225.41) to acquire a bank or bank

holding company. The factors that are

considered in acting on the notices are

set forth in paragraph 7 of the Act (12

U.S.C. 1817(j)(7)).

The notices are available for

immediate inspection at the Federal

Reserve Bank indicated. Once the

notices have been accepted for

processing, they will also be available

for inspection at the offices of the Board

of Governors. Interested persons may

express their views in writing to the

Reserve Bank indicated for that notice

or to the offices of the Board of

Governors. Comments must be received

not later than February 18, 1997.

A. Federal Reserve Bank of Kansas

City (John E. Yorke, Senior Vice

President) 925 Grand Avenue, Kansas

City, Missouri 64198-0001:

1. Charleen Y. Frerichs, Hildreth,

Nebraska; to acquire an additional 6.8

percent, for a total of 100 percent, of the

voting shares of Hildreth State

Company, Inc., Hildreth, Nebraska, and

thereby indirectly acquire State Bank of

Hildreth, Hildreth, Nebraska.

Board of Governors of the Federal Reserve

System, January 28, 1997.

Jennifer J. Johnson,

Deputy Secretary of the Board.

[FR Doc. 97–2528 Filed 1–31–97; 8:45 am]

BILLING CODE 6210–01–F

Formations of, Acquisitions by, and

Mergers of Bank Holding Companies

The companies listed in this notice

have applied to the Board for approval,

pursuant to the Bank Holding Company

Act of 1956 (12 U.S.C. 1841 et seq.)

(BHC Act), Regulation Y (12 CFR Part

225), and all other applicable statutes

and regulations to become a bank

holding company and/or to acquire the

assets or the ownership of, control of, or

the power to vote shares of a bank or

bank holding company and all of the

banks and nonbanking companies

owned by the bank holding company,

including the companies listed below.

The applications listed below, as well

as other related filings required by the

Board, are available for immediate

inspection at the Federal Reserve Bank

indicated. Once the application has

been accepted for processing, it will also