Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 45367 

1Some authorities cited herein refer to § 41102(c) 

while others refer to section 10(d)(1). For ease of 

reading, we will generally refer to § 41102(c) in 

analyzing these authorities. 

2 46 U.S.C. 41102(c). 

3Houben v. World Moving Services, Inc., 31 

S.R.R. 1400 (FMC 2010). 

4Kobel v. Hapag-Lloyd A.G., 32 S.R.R. 1720, 1731 

(2013) (‘‘The allegation that a single failure to 

‘‘observe or enforce’’ just and reasonable regulations 

or practices is not a failure does not comport with 

the language of section 10(d)(1), which mandates 

regulated entities not to ‘fail to . . . observe and 

enforce’ just and reasonable regulations and 

practices.’’). 

• Email: rbailey@oshrc.gov. Include 

‘‘Advance notice of proposed 

rulemaking, 29 CFR part 2200’’ in the 

subject line of the message. 

• Fax: 202–606–5417. 

• Mail: One Lafayette Centre, 1120 

20th Street NW, Ninth Floor, 

Washington, DC 20036–3457. 

• Hand Delivery/Courier: Same as 

mailing address. 

Instructions: All submissions must 

include your name, return address, and 

email address, if applicable. Please 

clearly label submissions as ‘‘Advance 

notice of proposed rulemaking, 29 CFR 

part 2200.’’ 

FOR FURTHER INFORMATION CONTACT: Ron 

Bailey, via telephone at 202–606–5410, 

or via email at rbailey@oshrc.gov. 

SUPPLEMENTARY INFORMATION: In 

accordance with 29 U.S.C. 661(g), the 

Occupational Safety and Health Review 

Commission last implemented a 

comprehensive revision of its rules of 

procedure in 2005. Since that time, 

technological advances, including 

implementation of the E-filing system, 

as well as the evolution of practice 

before the Commission, have called for 

a careful reexamination of the 

Commission’s rules of procedure, as set 

forth in 29 CFR part 2200. To assist in 

determining what revisions should be 

made, the agency is soliciting 

recommendations from the public. It is 

especially interested in hearing from 

those who practice before it on what 

rules their experience suggests would 

benefit from a revision. While 

recommended changes to any rule will 

be considered, the Commission is 

especially interested in whether: Rules 

on the computation of time should be 

simplified; electronic filing and service 

should be mandatory and, if so, what 

exceptions, if any, should be allowed; 

the definition of ‘‘affected employee’’ 

should be broadened; citing to 

Commission decisions as posted on the 

agency’s website should be allowed; the 

rule on the staying of a final order is not 

needed and should be eliminated; the 

requirement for agency approval of 

settlements should be narrowed or 

eliminated; the grounds for obtaining 

Commission review of interlocutory 

orders issued by its administrative law 

judges should be revised; protection of 

sensitive personal information should 

be broadened; and whether the 

threshold amount for cases referred for 

mandatory settlement proceedings 

should be increased. Comments 

suggesting a rule change should include 

a brief discussion of the reasons for the 

change, why the change would facilitate 

improved practice before the 

Commission, and a reference to 

authority where necessary. 

Dated: August 15, 2018. 

Heather L. MacDougall, 

Chairman. 

[FR Doc. 2018–18050 Filed 9–6–18; 8:45 am] 

BILLING CODE 7600–01–P 

FEDERAL MARITIME COMMISSION 

46 CFR Part 545 

[Docket No. 18–06] 

RIN 3072–AC71 

Interpretive Rule, Shipping Act of 1984 

AGENCY: Federal Maritime Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Maritime 

Commission (FMC or Commission) is 

seeking public comment on its 

interpretation of the scope of the 

Shipping Act prohibition against failing 

to establish, observe, and enforce just 

and reasonable regulations and practices 

relating to or connected with receiving, 

handling, storing, or delivering 

property. Specifically, the Commission 

is clarifying that the proper scope of that 

prohibition in the Shipping Act of 1984 

and the conduct covered by it is guided 

by the Commission’s interpretation and 

precedent articulated in several earlier 

Commission cases, which require that a 

regulated entity engage in a practice or 

regulation on a normal, customary, and 

continuous basis and that such practice 

or regulation is unjust or unreasonable 

in order to violate that section of the 

Shipping Act. 

DATES: Submit comments on or before: 

October 10, 2018. 

ADDRESSES: You may submit comments, 

identified by the Docket No. 18–06 by 

the following methods: 

• Email: secretary@fmc.gov. Include 

in the subject line: ‘‘Docket 18–06, 

Interpretive Rule Comments.’’ 

Comments should be attached to the 

email as a Microsoft Word or textsearchable PDF document. Only nonconfidential and public versions of 

confidential comments should be 

submitted by email. 

• Mail: Rachel E. Dickon, Secretary, 

Federal Maritime Commission, 800 

North Capitol Street NW, Washington, 

DC 20573–0001. 

• Instructions: For detailed 

instructions on submitting comments, 

including requesting confidential 

treatment of comments, and additional 

information on the rulemaking process, 

see the Public Participation heading of 

the SUPPLEMENTARY INFORMATION section 

of this document. Note that all 

comments received will be posted 

without change to the Commission’s 

website, unless the commenter has 

requested confidential treatment. 

• Docket: For access to the docket to 

read background documents or 

comments received, go to the 

Commission’s Electronic Reading Room 

at: http://www.fmc.gov/18-06, or to the 

Docket Activity Library at 800 North 

Capitol Street NW, Washington, DC 

20573, 9:00 a.m. to 5:00 p.m., Monday 

through Friday, except Federal holidays. 

Telephone: (202) 523–5725. 

FOR FURTHER INFORMATION CONTACT: 

Rachel E. Dickon, Secretary; Phone: 

(202) 523–5725; Email: secretary@

fmc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

The Federal Maritime Commission is 

issuing this notice to obtain public 

comments on clarification and guidance 

regarding the Commission’s 

interpretation of the scope of 46 U.S.C. 

41102(c) (section 10(d)(1) of the 

Shipping Act of 1984).1 Section 

41102(c) provides that regulated entities 

‘‘may not fail to establish, observe, and 

enforce just and reasonable regulations 

and practices relating to or connected 

with receiving, handling, storing, or 

delivering property.’’ 2

Beginning with the Houben 3 decision 

in 2010 and presented in full in the 

Commission’s 2013 decision in Kobel v. 

Hapag-Lloyd, the Commission has held 

in a line of recent cases that discrete 

conduct with respect to a particular 

shipment, if determined to be unjust or 

unreasonable, represents a violation of 

§ 41102(c), regardless of whether that 

conduct represents a respondent’s 

practice or regulation.4 These decisions 

diverge from consistent Commission 

precedent dating back to 1935 and 

reaffirmed as recently as 2001 which 

required that a regulated entity must 

engage in a practice or regulation on a 

normal, customary, and continuous 

basis in order to be found to have 

violated § 41102(c) of the Shipping Act. 

In simple summary, discrete or 


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5 Intercoastal Investigation, 1935, 1 U.S.S.B.B. 

400 (1935). 

6 J.M. Altieri v. Puerto Rico Ports Authority, 7 

F.M.C. 416 (ALJ 1962). 

7 Investigation of Certain Practices of Stockton 

Elevators, 3 S.R.R. 605 (FMC 1964). 

8European Trade Specialists v. Prudential-Grace 

Lines, 19 S.R.R. 59, 63 (FMC 1979). 

9A.N. Deringer, Inc. v. Marlin Marine Services, 

Inc., 25 S.R.R. 1273 (SO 1990). 

10Kamara v. Honesty Shipping Service, 29 S.R.R. 

321 (ALJ 2001). 

11Mann-Elkins Act, 61st Congress, 2nd session, 

Ch. 309, 36 Stat. 539, enacted June 18, 1910. 12The Interstate Commerce Act of 1887, Ch. 104, 

24 Stat 379 (1887). 13The Shipping Act of 1916, Sept. 7, 1916, Ch. 

451, 39 Stat. 728. 14Section 17 is the origin of section 10(d)(1), as 

discussed infra. 

15 Id. at 484. 

16For example, the Packers and Stockyards Act 

of 1921, which was enacted to maintain 

competition in the livestock industry. The Act bans 

discrimination, manipulation of price, weight, 

livestock or carcasses; commercial bribery; 

misrepresentation of source, condition, or quality of 

livestock; and other unfair or manipulative 

practices. Section 208 of the Packers and 

Stockyards Act of 1921 provides that, ‘‘[i]t shall be 

the duty of every stockyard owner and market 

agency to establish, observe, and enforce just, 

reasonable and nondiscriminatory regulations and 

practices in respect to the furnishing of stockyard 

services.’’ 7 U.S.C. 208. 

17For a more detailed discussion of the legislative 

history of this statutory language, see GruenbergReisner v. Respondent Overseas Moving Specialist, 

34 S.R.R. 613, 638–644 (FMC 2016). 

18The two separate provisions of section 17 of the 

Shipping Act are commonly referred to as ‘‘section 

17, first paragraph’’ and ‘‘section 17, second 

paragraph.’’ 

19See the Railroad Revitalization and Regulatory 

Reform Act of 1976, Public Law 94–210; Staggers 

Act of 1980, Public Law 96–448; Motor Carrier Act 

of 1990, Public Law 96–296; Airline Deregulation 

Act, Public Law 95–504; and the Interstate 

Commerce Commission Termination Act of 1995, 

Public Law 104–88. 

occasional actions by regulated entities 

not reflecting a practice or regulation 

would not constitute a violation of 

§ 41102(c). 

Specifically, the Commission is 

considering an interpretive rule 

consistent with Commission precedent 

articulated in cases including 

Intercoastal Investigation,5 Altieri,6

Stockton Elevators,7 European 

Trade,8 A.N. Deringer,9 and Kamara 10

that would restore the scope of 

§ 41102(c) to prohibiting unjust and 

unreasonable practices and regulations. 

These decisions require that a regulated 

entity engage in a practice or regulation 

on a normal, customary, and continuous 

basis and a finding that such practice or 

regulation is unjust or unreasonable to 

violate that section of the Shipping Act. 

The Commission believes that this 

represents the proper interpretation of 

the statutory language of the provision 

that, within the full context of the 1916 

Act and the 1984 Act, is consistent with 

statutory and legislative history, judicial 

precedent and Commission case law 

embodied in cases such as Stockton 

Elevators, and comports with accepted 

rules of statutory construction. 

This interpretation restores § 41102(c) 

to its proper function and purpose 

under the Shipping Act of 1984 and will 

return the Commission’s focus and 

priorities to the activities of maritime 

regulated entities that negatively affect 

the broader shipping public—all as 

intended by Congress in its enactment 

of the 1916 Act and the 1984 Act. 

Recognizing that this interpretation 

would prune and pare back the types of 

recent claims that have been be filed 

with the Commission to those related to 

the purposes of the Shipping Act’s 

§ 41102(c), traditional legal venues will 

continue to be available to parties 

injured by discrete instances of 

unreasonable or unjust conduct 

consistent with long established 

maritime actions and other statutes 

specifically enacted by Congress, and 

long recognized common law remedies, 

all designed to address such 

circumstances. 

We are seeking comment on this 

refocus of § 41102(c), how such an 

interpretation would affect regulated 

entities including ocean carriers, marine 

terminal operators (MTOs), and ocean 

transportation intermediaries (OTIs), as 

well as members of the shipping public, 

including cargo shippers and drayage 

truckers, and whether claims that would 

no longer fall under § 41102(c) under 

the contemplated interpretation would 

be adequately resolved before the 

Commission under other sections of the 

Act or in other legal dispute venues. 

The interpretation would take the form 

of an interpretive rule codified in 46 

CFR part 545. The language of the 

proposed rule is set forth below. 

II. Background 

A. Statutory Language and Legislative 

History 

Congress first used the statutory 

language addressing the legal duty of 

transportation common carriers to 

‘‘establish, observe, and enforce just and 

reasonable . . . regulations and 

practices . . . affecting [cargo] 

classification, rates, or tariffs . . . [and] 

the manner and method of presenting, 

marking, packing, and delivering 

property for transportation . . .’’ in the 

1910 Mann-Elkins Act amendment 

(Mann-Elkins) 11 to the Interstate 

Commerce Act (ICA).12 The MannElkins language clearly focused on the 

operating and business practices of 

railroads as commonly used and 

imposed upon passengers and cargo 

shippers. This fundamental common 

carrier duty is the foundational 

cornerstone of the ICA legislation, its 

statutory purpose, and its proper 

interpretation. 

The provenance of the statutory 

language and its inclusion six years later 

in the Shipping Act of 1916 (1916 

Act) 13 has been recognized by the 

courts. In United States Navigation Co. 

v. Cunard S.S. Co. Ltd. 284 U.S. 474 

(1932), the U.S. Supreme Court tied a 

firm knot binding the ICA and the 1916 

Act where the court gave a general 

review of various sections of the 1916 

Act, including section 17 14 and held 

that, ‘‘[t]hese and other provisions of the 

Shipping Act clearly exhibit the close 

parallelism between the act and its 

prototype, the ICA, and the applicability 

both of the principals of construction 

and administration.’’ 15

As the enactment of the 1916 Act 

demonstrates, together with the use of 

identical language in other federal 

statutes,16 Congress fully understood 

what it was doing in using the phrase 

‘‘establish, observe, and enforce just and 

reasonable regulations and practices’’— 

and what those words meant.17

Section 41102(c) of the 1984 Act 

originates from section 17 of the 1916 

Act. Section 17 was commonly divided 

into two parts and referred to as 

‘‘section 17, first paragraph’’ and 

‘‘section 17, second paragraph.’’ The 

first paragraph addressed unjustly 

discriminatory rates charged to shippers 

while the second paragraph addressed 

just and reasonable practices by carriers 

and other persons subject to the Act. 

The second paragraph of section 17 

reads as follows: 

Every such carrier and every other person 

subject to this act shall establish, observe, 

and enforce just and reasonable regulations 

and practices relating to or connected with 

the receiving, handling, storing, or delivering 

of property. Whenever the Board finds any 

such regulation or practice is unjust or 

unreasonable it may determine, prescribe, 

and order enforced a just and reasonable 

regulation or practice. 

Public Law 64–260 § 17 (1916) 

(emphasis added).18

As a part of the general transportation 

deregulatory reform trends in the 1970’s 

through 1990’s,19 Congress eliminated 

the sentence regarding the 

Commission’s authority to prescribe or 

order regulations or practices in the 

1984 Act. Congress, however, reenacted 

the first sentence of section 17’s second 

paragraph and placed that provision in 

section 10(d)(1), which, following the 

2006 recodification of the 1984 Act, 

became 46 U.S.C. 41102(c). That 

language from section 17, second 


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20The United States Shipping Board (USSB) was 

succeeded in 1933 by the United States Shipping 

Board Bureau of the Department of Commerce 

(USSBB), Executive Order No. 6166 (1933). The 

USSBB was succeeded in 1936 by the United States 

Maritime Commission (USMC), 49 Stat. 1985. In 

1950, the USMC was succeeded by the Federal 

Maritime Board (FMB), 64 Stat.1273. The FMC was 

established as an independent regulatory agency by 

Reorganization Plan No. 7, effective August 12, 

1961. The U.S. Supreme Court treated the FMC and 

all predecessor agencies as the ‘‘Commission’’ for 

purposes of judicial review. See Volkswagenwerk v. 

Federal Maritime Commission, 390 U.S. 261, 269 

(1968). 

21See European Trade Specialists v. PrudentialGrace Lines, 19 S.R.R. 59, 63 (FMC 1979). (Unless 

its normal practice was not to so notify the shipper, 

such adverse treatment cannot be found to violate 

the section as a matter of law [emphasis in 

original].’’ 

22See Intercoastal Investigation, 1935, 1 

U.S.S.B.B. 400, 432. (‘‘Owing to its wide and 

variable connotations, a practice which unless 

restricted ordinarily means an often and customary 

action, is deemed to acts or things belonging to the 

same class as those meant by the words of the law 

that are associated with it.’’ [cites omitted] 

[emphasis added]. 

23See Whitam v. Chicago, R.I. & P. Ry. Co., 66 

F. Supp. 1014 (ND TX 1946) (‘‘The word ‘a practice’ 

as used in the decision, or used anywhere properly, 

implies systematic doing of the acts complained of, 

and usually as applied to carriers and shippers 

generally.’’ (emphasis added).’’ 

24See Stockton Elevators, 3 S.R.R. 605, 618 (FMC 

1964). (‘‘It cannot be found that the Elevator 

engaged in a ‘practice’ within the meaning of 

Section 17. The essence of a practice is uniformity. 

It is something habitually performed and it implies 

continuity . . . the usual course of conduct. It is not 

an occasional transaction such as here shown. 

Intercoastal Investigation, 1935, 1 U.S.S.B.B. 400, 

432; B&O By. Co. v. United States 277 U.S. 291, 

300, Francesconi & Co. v. B&O Ry. Co., 274 F. 687, 

690; Whitham v. Chicago R.I. & P. Ry. Co., 66 F. 

Supp. 1014; Wells Lamont Corp. v. Bowles, 149 F.2d 

364 (emphasis added). See also, McClure v. 

Blackshere, F. Supp. 678, 682 (D. Md. 1964) 

(‘‘ ‘Practice’ ordinarily implied uniformity and 

continuity, and does not denote a few isolated acts, 

and uniformity and universality, general notoriety 

and acquiescence, must characterize the actions on 

which a practice is predicated.’’ (citations omitted) 

(emphasis added)). 

25See Stockton Elevators, 3 S.R.R. 605, 618 (FMC 

1964). (‘‘It cannot be found that the Elevator 

engaged in a ‘practice’ within the meaning of 

Section 17. . . . It is something habitually 

performed and it implies continuity . . . the usual 

course of conduct.’’ (citations omitted) (emphasis 

added)). 

26See Stockton Elevators, 3 S.R.R. 605, 618 (FMC 

1964). (‘‘It cannot be found that the Elevator 

engaged in a ‘practice’ within the meaning of 

Section 17. . . . It is something habitually 

performed and it implies continuity . . . .’’ 

(citations omitted) (emphasis added)). See also, 

McClure v. Blackshere, F. Supp. 678, 682 (D. Md. 

1964) (‘‘ ‘Practice’ ordinarily implied uniformity 

and continuity, and does not denote a few isolated 

acts, and uniformity and universality, general 

notoriety and acquiescence, must characterize the 

actions on which a practice is predicated.’’ 

(citations omitted) (emphasis added)). 

27 Intercoastal Investigations cited two ICA 

railroad cases as authority. See Baltimore & Ohio 

Railroad Company v. United States, 277 U.S. 291 

(1923) and Missouri Pacific R. Co. v. Norwood, 283 

U.S. 249, 257 (1931). 

28A series of cases alleging section 10(d)(1) 

violations has established that a complainant must 

demonstrate regulations and practices, as opposed 

to identifying what might be an isolated error or 

understandable misfortune. See, e.g., Informal 

Docket No. 1745(I), Mrs. Susanne Brunner v. OMS 

Moving Inc., slip decision served January 27, 1994, 

administratively final March 8, 1994. 

29 Investigation of Certain Practices of Stockton 

Elevators, 8 F.M.C. 187, 200–201 (Examiner 1964). 

30 Id. 

31 17 S.R.R. 1351, 1361 (ALJ 1977). 

paragraph, first sentence, requiring that 

no regulated entity may fail to establish, 

observe, and enforce just and reasonable 

regulations and practices relating to or 

connected with the receiving, handling, 

storing, or delivery of property—is now 

found in § 41102(c) of the 1984 Act. 

Having a long legislative provenance, 

Congress used the word ‘‘practice’’ and 

the full phrase, ‘‘establish, observe, and 

enforce just and reasonable regulations 

and practices,’’ in both the original 1916 

Act and in section 10(d)(1) of the 1984 

Act, now § 41102(c), in a particular way 

and in a context that was clear to the 

drafters, to the Commission, and to the 

reviewing courts. 

B. Judicial Precedent 

In Baltimore & Ohio Railroad 

Company v. United States, 277 U.S. 291 

(1923), the U.S. Supreme Court 

considered the question of what 

constituted a ‘‘practice’’ within the 

contemplation of Congress in the 

Interstate Commerce Act: 

The word ‘‘practice’’, considered generally 

and without regard to context, is not capable 

of useful construction. If broadly used, it 

would cover everything carriers are 

accustomed to do. Its meaning varies so 

widely and depends so much upon the 

connection in which it is used that Congress 

will be deemed to have intended to confine 

its application to acts or things belonging to 

the same general class as those meant by the 

words associated with it. 

Id. at 299–300 (citation omitted) 

(emphasis added). 

The Interstate Commerce Commission 

(ICC), the United States Shipping Board 

(USSB) (the agency created by Congress 

in the 1916 Act), its successor agencies, 

and the currently constituted 

Commission,20 together with state and 

federal courts have consistently ruled 

that ‘‘practice’’ means; (1) the acts/ 

omissions of the regulated common 

carrier that were positively established 

by the regulated common carrier and 

imposed on the passenger/cargo 

interest, and (2) such act/omission was 

the normal,21 customary, often 

repeated,22 systematic,23 uniform,24

habitual,25 and continuous manner 26

(hereinafter ‘‘Normal, Customary & 

Continuous’’) in which the regulated 

common carrier was conducting 

business. 

The USSBB, a predecessor to the 

Commission, considered the term 

‘‘practice’’ as used in the 1916 Act in 

Intercoastal Investigation, 1935, 1 FMC 

400 (1935), an investigation that covered 

sixteen years of steam ship conference 

activities. The USSBB held: 

The provisions of the Shipping Act, 1916, 

also apply to these respondents. It is there 

provided . . . that carriers shall establish, 

observe, and enforce just and reasonable 

rates, charges, (cargo) classifications, and 

tariffs and just and reasonable regulations 

and practices related thereto . . .The terms 

‘‘rates’’, ‘‘charges’’, ‘‘tariffs’’, and ‘‘practices’’ 

as used in transportation have received 

judicial interpretation . . . Owing to its wide 

and variable connotation, a practice, which 

unless restricted ordinarily means an often 

repeated and customary action, is deemed to 

apply only to acts or things belonging to the 

class as those meant by the words of the law 

that are associated with it . . . In section 18, 

the term ‘‘practices’’ is associated with 

various words, including ‘‘rates’’, ‘‘charges’’, 

and ‘‘tariffs’’. 

Id. at 431–432 (emphasis added).27

Prior to the 1984 Act, Commission 

decisions analyzing situations that 

involved discrete conduct focused on 

the meaning of the word ‘‘practice’’ and 

determined that conduct that did not 

reflect a practice was outside the scope 

of the first sentence of the second 

paragraph of section 17. In Altieri, 

Stockton Elevators, and European Trade 

Specialists, A.N. Deringer, Kamara, and 

other cases 28 the Commission used the 

term ‘‘practice’’ in a consistent manner 

for all the places it appears in the 

Shipping Act. 

In Stockton Elevators, which was later 

adopted by the Commission in its 

entirety, the FMC’s Presiding Examiner 

found that a violation did not occur 

because of the infrequency of the 

relevant actions. According to that 

decision, a practice is something that, 

‘‘is habitually performed and implies 

continuity . . . not an occasional 

transaction such as here shown.’’ 29 The 

Presiding Examiner found the 

respondent’s actions to be occasional 

transactions and not a ‘‘practice’’ 

because they were not the ‘‘usual course 

of conduct’’ and so not a violation of 

section 17.30

Similarly, in European Trade 

Specialists, Inc. v. Prudential-Grace 

Lines, Inc., the ALJ specifically noted, 

‘‘[a] ‘practice’ unless the term is in some 

way restricted by decision or statute, 

means ‘‘an often repeated and 

customary action.’’ 31 There, the ALJ 

was considering if an alleged failure to 

notify a shipper of a dispute on the 

applicable tariff rate violated section 17 

of the 1916 Act. The ALJ found that in 

examining the record, the respondent’s 

normal practice was to notify shippers 


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32See Adair v. Penn-Nordic Lines, Inc., 26 S.R.R. 

11 (ALJ 1991); Tractors & Farm Equip. Ltd v. 

Cosmos Shipping Co., Inc., 26 S.R.R. 788 (ALJ 

1992); Houben v. World Moving Servs., Inc., 31 

S.R.R. 1400 (FMC 2010). 

33Kobel, 32 S.R.R. at 1735. 

34See, e.g., Bimsha Int’l v. Chief Cargo Servs., 32 

S.R.R. 1861, 1865 (FMC 2013) (‘‘NVOCCs violate 

[§ 41102(c)] when they fail to fulfill NVOCC 

obligations, through single or multiple actions or 

mistakes, and therefore engage in an unjust and 

unreasonable practice’’ (emphasis added)). 

35Reading Law: The Interpretation of Legal Texts, 

Scalia and Garner, 2012, pg. 174. 

36 Id. at 59, emphasis in the original. 

37 Id. at page 176, emphasis added. 

38 Id. at 59. 

39See Bell Atlantic Telephone Companies v. 

Federal Communications Commission, 131 F.3d 

1044, 1047 (D.C. Cir. 1997) (‘‘Context serves an 

especially important role in textual analysis of a 

statute when Congress has not expressed itself as 

univocally as might be wished.’’). 

40For a fuller discussion of the Syntactic Canon, 

see Gruenberg-Reisner v. Respondent Overseas 

Moving Specialist, 34 S.R.R. 613, 641 (FMC 2016). 

41See, e.g., James Kent, Commentaries on 

American Law 432 (1826) (‘‘The words of a statute 

are to be taken in their natural and ordinary 

signification and import; and if technical words are 

used, they are to be taken in a technical sense.’’). 

42See Intercoastal Investigation, 1935, 1 

U.S.S.B.B. 400 (1935); Whitam v. Chicago, R.I. & P. 

Ry. Co., 66 F. Supp. 1014 (N.D. Tex. 1946); McClure 

v. Blackshere, 231 F. Supp. 678 (D. Md. 1964); 

Stockton Elevators, 8 F.M.C. 187 (1964); and 

European Trade Specialists, 19 S.R.R. 59 (FMC 

1979). 

43For a fuller discussion of the Ordinary Meaning 

Canon, see Gruenberg-Reisner v. Respondent 

Overseas Moving Specialist, 34 S.R.R. 613, 641–642 

(FMC 2016). 

of problems and this case involved the 

allegation of a single departure from that 

practice which was otherwise just and 

reasonable. Regardless of the unjustness 

or unreasonableness of the respondent’s 

failure to notify the shipper, such action 

did not represent a practice and thus 

there could be no section 17 violation. 

In Kamara v. Honesty Shipping 

Service, 29 S.R.R. 321 (ALJ 2001), the 

ALJ held that, ‘‘It is not clear that a 

carrier’s simple failure to remit payment 

to a subcontracting carrier constitutes a 

Shipping Act violation, although the 

shipper would certainly have a 

commercial contractual claim. 

These cases addressing Section 

10(d)(1) violations correctly hold that a 

complainant must demonstrate 

regulations and practices and articulates 

the correct scope and interpretation of 

§ 41102(c). This precedent stands in 

stark contrast to recent Commission 

decisions that adopted a far more 

expansive interpretation of the conduct 

covered by § 41102(c) untethered to the 

language of the statute, the legislative 

history, Commission precedent, or, most 

importantly, the purpose of the 

Shipping Act to address common carrier 

duties.32

In the 2013 Kobel decision, the 

Commission charted a different course 

by disjoining the statute’s conjunctive 

language of ‘‘establish, observe, and 

enforce’’ and specifically identified that 

§ 41102(c) contains three discrete 

prohibitions: (1) A prohibition against 

failing to establish just and reasonable 

regulations and practices; (2) a 

prohibition against failing to observe 

just and reasonable regulations and 

practices; and (3) a prohibition against 

failing to enforce just and reasonable 

regulations.33 Since Kobel, the 

Commission has interpreted section 

§ 41102(c) to mean that a single failure 

to fulfill a single legal obligation of any 

description itself could constitute a 

violation of § 41102(c).’’ 34

The Commission looked to a single 

rule of construction, the surplusage 

cannon, to support its course change 

from prior Commission and court 

rulings. That rule provides that, ‘‘If 

possible, every word and every 

provision is to be given effect.’’ 35

However, the commentators offer two 

relevant notes of caution. 

First, in discussing the Principle of 

Interrelating Canons, they advise, ‘‘No 

canon of interpretation is absolute. Each 

may be overcome by the strength of 

differing principles that point in other 

directions . . . It is a rare case in which 

each side does not appeal to a different 

canon to suggest its desired 

outcome.’’ 36 Second, in later discussion 

of the surplusage canon, they note, ‘‘If 

a provision is susceptible of (1) a 

meaning that . . . deprives another 

provision of all independent effect, and 

(2) another meaning that leaves both 

provisions with some independent 

operation, the later should be preferred 

. . . So, like all other canons, this one 

must be applied with judgement and 

discretion, and with careful regard to 

context.’’ 37

The Commission has, in these recent 

cases, strained to give independent 

application of the elements, ‘‘establish, 

observe, or enforce’’ but, in so doing, 

has deprived any operation of a 

discussion or application of the alleged 

unjust or unreasonable practice or 

regulation being inflicted upon the 

general shipping public. The ‘‘context’’ 

of § 41102(c) itself within the Shipping 

Act and other factors discussed below 

demonstrate the flaws in the 

Commission’s recent line of section 

41102(c) decisions. Moreover, numerous 

other canons of construction ‘‘point in 

other directions,’’ 38 all as discussed 

below. 

It is this line of recent cases 

determining that a discrete failure to 

observe and enforce an established just 

and reasonable regulation or practice 

that the Commission seeks to reform in 

this rulemaking so as to return the scope 

of § 41102(c) to its proper role and 

purpose within the Shipping Act. In the 

future, the Commission intends to 

follow the reasoning in Intercoastal 

Investigation, Altieri, Stockton 

Elevators, European Trade Specialists, 

Deringer, and Kamara which offer 

precedent as to what properly applies 

the full meaning and purpose of 

‘‘establish, observe, and enforce just and 

reasonable regulations and practices’’ 

under the Shipping Act and a violation 

of § 41102(c). 

C. Rules of Statutory Construction 

The precedent in Intercoastal 

Investigation, Altieri, Stockton 

Elevators, European Trade Specialists, 

Deringer, and Kamara as to what 

constitutes ‘‘regulations and practice’’ 

under the Shipping Act is supported by 

and consistent with multiple accepted 

rules of statutory construction. Proper 

consideration and application of 

numerous canons of statutory 

construction demonstrates that Congress 

has spoken to the issue at hand.39

(1) The Syntactic Canon concerns 

grammar. Reviewing § 41102(c), the 

regulated entity is the subject of the 

sentence. The subject is directed—i.e. 

do not fail to—then comes the active 

verbs—‘‘establish, observe, and enforce’’ 

just and reasonable regulations and 

practices. The regulated entity is 

ordered to, first, initiate the creation, 

dissemination, and publication of such 

just and reasonable regulations and 

practices, and simultaneously, to 

observe and enforce those regulations 

and practices that were created by that 

regulated entity.40

(2) The Ordinary Meaning Canon 

requires that the words of a statute are 

to be taken in their natural and ordinary 

signification and import.41 The judicial 

interpretation of the phrase ‘‘practices’’ 

by multiple courts applying the MannElkins Act, the 1916 Act, and other 

statutes, all utilized the Ordinary 

Meaning Canon to find the meaning of 

the term ‘‘practice’’ as intended by 

Congress.42 All came to a reasoned 

conclusion that confirms the 

Commission’s proposed 

interpretation.43

(3) The Prior-Construction Canon 

requires that ‘‘[w]hen administrative 

and judicial interpretations have settled 

the meaning of an existing statutory 

provision, repetition of the same 

language in a new statute indicates, as 

a general matter, the intent to 

incorporate its administrative and 


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44Bragdon v. Abbott, 524 U.S. 624, 645 (1998) 

(emphasis added). 45 Intercoastal at 432. 46 J.M. Altieri v. Puerto Rico Ports Authority, 7 

F.M.C. 416 (ALJ 1962). ‘‘If the action of respondent 

were one of a series of such occurrences, a practice 

might be spelled out that would invoke the 

coverage of section 17. Hecht, Levis and Kahn, Inc. 

v. Isbrandtsen, Co., Inc., 3 F.M.B. 798 (1950). 

However, the action of the respondent is an isolated 

or ‘one shot’ occurrence. Complainant has alleged 

and proved only the one instance of such conduct. 

It cannot be found to be a ‘practice’ within the 

meaning of the last paragraph of section 17.’’ Id. at 

420 (emphasis in original).) 

47 3 S.R.R. at 618 (‘‘It cannot be found that the 

Elevators engaged in a ‘practice’ within the meaning 

of section 17. The essence of a practice is 

uniformity. It is something habitually performed 

and it implies continuity . . . the usual course of 

conduct. It is not an occasional transaction such as 

here shown. Intercostal Investigation, 1935, 1. 

USSBB 400, 432; B&O Ry. Co., 274 F. 687, 690; 

Whitham v. Chicago R.I. & P. Ry. Co., 66 F. Supp. 

1014; Wells Lamont Corp. v. Bowles, 149 F.2d 

364.’’). 

48 19 S.R.R. at 63. (‘‘Even assuming, without 

deciding, that European was not notified of the 

classification and rating problem we cannot say that 

such conduct by Hipage amounts to a violation of 

Section 17. Unless its normal practice was not to 

so notify the shipper, such adverse treatment 

cannot be found to violate the section as a matter 

of law. Investigation of Certain Practices of 

Stockton Elevators, 8 F.M.C. 181, 200 [3 S.R.R. 605] 

(1964).’’ (emphasis in original)). 

49For a more detailed discussion of the PriorConstruction Canon, see Gruenberg-Reisner v. 

Respondent Overseas Moving Specialist, 34 S.R.R. 

613, 647–649 (FMC 2016). 

50Felix Frankfurter, Some Reflections on the 

Reading of Statutes, 47 Colum. L. Rev. 527, 537 

(1947). 

51For a more detailed discussion of the 

Associated Word Canon, see Gruenberg-Reisner v. 

Respondent Overseas Moving Specialist, 34 S.R.R. 

613, 645 (FMC 2016). 

52For a more detailed discussion of the 

Presumption of Consistent Usage Canon, see 

Gruenberg-Reisner v. Respondent Overseas Moving 

Specialist, 34 S.R.R. 613, 642–643 (FMC 2016). 

53See 46 U.S.C. 40101. 

54For a more detailed discussion of the Whole 

Text Canon, see Gruenberg-Reisner v. Respondent 

Overseas Moving Specialist, 34 S.R.R. 613, 644 

(FMC 2016). 

55See Motor Vehicle Mfrs. Ass’n v. State Farm 

Insurance, 463 U.S. 29 (1983). ‘‘[A]n agency 

changing its course . . . is obligated to supply a 

reasoned analysis for the change . . . .’’ Id. at 42. 

The Commission’s case law affirmed this obligation 

in Harrington & Co. v. Georgia Ports Authority, 23 

S.R.R. 753 (ALJ 1986), where the Commission held, 

‘‘the decision to depart from precedent is not taken 

lightly and requires compelling reasons . . . the 

courts are emphatic in requiring agencies to follow 

their precedents or explain with good reason why 

they choose not to do so.’’ Id. at 766. 

56 46 U.S.C. 3070, Public Law 109–304, 6(c), 120 

Stat. 1516 (2006). 

57See Gilmore and Black, The Law of Admiralty, 

(2d ed. 1975). ‘‘This compromise was so well 

thought of that when, between 1921 and 1924, 

representatives of the shipping world and of the 

maritime nations sought by conference to arrive at 

terms suitable for uniform worldwide treatment of 

the shipper carrier relation under ocean bills of 

lading, the ‘‘Hague Rules’’ which they adopted, first 

as a set of clauses for voluntary inclusion in bills 

of lading and then as a Convention to which the 

adherence of maritime nations was invited, 

embodied the Harter Act compromise in the main 

outline. In 1936, the United States adhered to the 

Convention, and Congress passed in 

implementation the Carriage of Goods By Sea Act, 

which with minor differences follows verbatim the 

Hague Rules.’’ Id. at 144–145. 

judicial interpretations as well.’’ 44

Congress used the same 1916 Shipping 

Act language in the new 1984 Act. The 

Commission’s holdings in Intercoastal 

Investigation, 1935, 1 U.S.S.B.B. 400 

(1935), the case law, including ICA 

federal court cases, cited therein as 

supporting precedent,45 Altieri, 46

Stockton Elevators,47 the case law, 

including ICA federal court cases, cited 

therein as supporting precedent, and 

European Trade 48 was incorporated 

into the new statute as well.49 Justice 

Felix Frankfurter expressed the maxim 

as ‘‘if a word is obviously transplanted 

from a legal source, whether the 

common law or other legislation, it 

brings the old soil with it.’’ 50

(4) The Associated Words Canon of 

construction requires that associated 

words bear on one another’s meaning. In 

Intercoastal Investigation, 1935, the 

United States Shipping Board 

considered the term ‘‘practice’’ as used 

in the 1916 Act and determined that, 

‘‘[o]wing to its wide and variable 

connotation, a practice which unless 

restricted ordinarily means an often 

repeated and customary action, is 

deemed to apply only to acts or things 

belonging to the class as those meant by 

the words of the law that are associated 

with it.’’ 1 U.S.S.B.B. at 431–432 

(emphasis added). The application of 

the term ‘‘practices’’ must be confined 

within the regulated transportation 

world of common carriage, its 

specialized lexicon and its association 

with various words including ‘‘rates,’’ 

‘‘charges,’’ and ‘‘tariffs.’’ 51

(5) In Atlantic Cleaners & Dryers, Inc. 

v. United States, 286 U.S. 427 (1932), 

the U.S. Supreme Court framed the 

Presumption of Consistent Usage Canon 

as follows, ‘‘[t]here is a natural 

presumption that identical words used 

in different parts of the same act are 

intended to have the same meaning. Id. 

at 433 (emphasis added). In the 1984 

Act, Congress used the term ‘‘practice’’ 

or ‘‘practices’’ eight times in three 

different sections of the new legislation: 

Section 5 (Agreements); section 8 

(Tariffs); and section 10 (Prohibited 

Acts). These usages of ‘‘practice’’ are in 

complete harmony with the original 

1910 Mann-Elkins Act and the original 

section 17 of the 1916 Act’s usage of 

‘‘practices’’ referenced above.52

(6) The Whole-Text Canon requires 

that the entire statutory structure, 

statutory scheme and analysis must be 

considered. In K Mart Corp. v. Cartier, 

Inc., 486 U.S. 281 (1988), the U.S. 

Supreme Court expressed the WholeText Canon as follows, ‘‘In ascertaining 

the plain meaning of the statute, the 

court must look to the particular 

statutory language at issue, as well as 

the language and design of the statute as 

a whole.’’ Id. at 291. The Congressional 

intent, overall context and statutory 

mandate of the 1984 Shipping Act 

makes clear that Congress wanted the 

Commission to focus its regulatory 

authority on ‘‘establish[ing] a 

nondiscriminatory regulatory process 

for the common carriage of goods by 

water . . .’’ 53 and on maritime 

activities that: Result in substantial 

reduction in competition and are 

detrimental to commerce. In the 1998 

amendments, Congress injected 

additional competitive market-driven 

provisions into the Shipping Act of 

1984.54

(7) The Gruenberg-Reisner decision, 

supra, also discusses the relevant 

application of the negative implication 

canon and the presumption against 

extraterritorial application canon. Last, 

Gruenberg-Reisner also discusses the 

duty of federal agencies to observe and 

adhere to the doctrine of stare decisis.55

D. Remedies 

The Commission is aware that 

modifying the application of recent 

§ 41102(c) cases may pare back 

complainants’ ability in some factual 

circumstances to claim a Shipping Act 

violation and thus seek redress before 

the Commission when they are harmed 

by an act or omission of a regulated 

entity. However, § 41102(c) was not 

designed to be the universal panacea for 

each and every problem or grievance 

that arises in the maritime realm of 

receiving, handling, storing, or 

delivering property. To interpret the 

Shipping Act as duplicative of every 

other statutory and common law 

maritime remedy would frustrate 

Congressional intent in enacting 

different statutory schemes and 

undermine the purpose of the Shipping 

Act. 

In A.N. Deringer, Inc. v. Marlin 

Marine Services, Inc., 25 S.R.R. 1273, 

1276, 1277 (SO 1990), a post 1984 case 

that followed the Altieri, Intercoastal 

Investigation, Stockton Elevators, 

European Trade Specialists line of 

precedent in a case considering what is 

now § 41102(c), the Settlement Officer 

addressed the effect of an overly broad 

interpretation of section 10(d)(1) on 

other maritime statutes, such as the 

Carriage of Goods by Sea Act 

(COGSA).56 COGSA is the United States 

enactment of the international 

convention commonly referred to as the 

Hague Rules. This treaty was intended 


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58 In addition, with any COGSA litigation, the 

parties pay their own legal fees. Under a recent 

amendment to the 1984 Act in Title IV of the 

Howard Coble Coast Guard and Maritime 

Transportation Act of 2014, Public Law 113–281 

enacted on December 18, 2014, the prevailing party 

in Shipping Act claims wins full reparation and 

may be awarded attorney fees. 

59 46 U.S.C. 40101(2) (emphasis added). 

60See Total Fitness Equipment, Inc. d/b/a/ 

Professional Gym v. Worldlink Logistics, Inc., 28 

S.R.R. 45 (ID 1997); Brewer v. Maralan, 29 S.R.R. 

6 (FMC 2001). 61Adair, 26 S.R.R. at 20–21. 

to achieve a common set of international 

rules for the handling of cargo damage 

and loss claims.57 The Commission ALJ 

acknowledged the status of COGSA with 

the following Commission ruling: 

It is clear that COGSA was enacted to 

clarify the responsibilities as well as the 

rights and immunities of carriers and ships 

with respect to loss and damage claims. 

Consequently, the use of the Shipping Act of 

1984 to circumvent COGSA provisions 

would constitute a wholly unwarranted 

frustration of Congressional intent. 

Furthermore, some of the logical conclusions 

of such a step would be absurd. For example, 

COGSA provides a one-year period for the 

filing of suit; after that period, a claim is time 

barred. To accept Deringer’s premise, one 

would have to conclude that a one-year 

period exists during which a claimant may 

file suit, but two additional years exist in 

which to file with the FMC. Inasmuch as 

COGSA stipulates that the carrier and ship, 

in the absence of a suit, are discharged from 

liability after one year, such a conclusion is 

unacceptable. 

Id. at 1277 (footnotes omitted).58

As a further note on the discordant 

conflict between COGSA and the 

Commission’s current usage of section 

10(d)(1) of the Shipping Act, consider 

that COGSA provides for a limitation of 

liability scheme, including a cargo 

valuation cap of $500 per customary 

freight unit unless the shipper declares 

a higher cargo value. As the A.N. 

Deringer decision noted, a claimant 

could wait for 366 days and then file its 

claim at the Commission under section 

10(d)(1) and thereby avoid any COGSA 

limitations on the value of its cargo loss. 

This proffer of a conflict between 

section 10(d)(1) and COGSA is not 

speculation or a mere hypothetical. In 

the Commission’s Kobel decision, supra, 

Respondent Hapag-Lloyd, the ocean 

vessel common carrier, was found to 

have violated section 10(d)(1) by virtue 

of damaging the Claimant’s container 

during the loading process and then 

subsequently placing that damaged 

container on a later Hapag-Lloyd ship. 

The Commission then held that HapagLloyd was; however, not liable for 

reparations because the damage to the 

container was not the proximate cause 

of the losses to the cargo. If the damaged 

container had allowed for water 

inundation with resulting cargo damage, 

then all legal elements would have been 

presented for an award to Claimants by 

virtue of the section 10(d)(1) violation. 

As a last observation concerning the 

comity between COGSA and the 

Shipping Act, consider section 2 of the 

Shipping Act’s Declaration of Policy 

where Congress stated: 

The purposes of this Act are . . . (2) to 

provide an efficient and economic 

transportation system in the ocean commerce 

of the United States that is, insofar as 

possible, in harmony with, and responsive to, 

international shipping practices ...59

As the Commission looks for guidance 

on Congressional intent concerning the 

scope, applicability, and proper 

interpretation of section 10(d)(1) and its 

relationship to the COGSA/Hague Rules, 

we find here a clear affirmative 

Congressional statement that directs the 

Commission to harmonize the Shipping 

Act with international shipping 

practices. The Hague Rules, as adopted 

by Congress, provide for a single 

internationally accepted set of rules for 

the treatment of the shipper-carrier 

relation under ocean bills of lading. An 

interpretation of the Shipping Act’s 

section 10(d)(1) that provides for an 

alternative legal remedy for a cargo 

claim in the United States would create 

diametrical discord to this area of law. 

Returning the Commission’s 

interpretation to its proper statutory 

purpose and scope will not leave 

claimants without remedy. Claimants 

would have full and adequate remedies 

under numerous legal proscriptions 

including common law, state statutes, 

admiralty law, and other federal 

statutes. Such claims should be 

presented to proper courts of common 

pleas. The Commission notes that other 

provisions or regulations of the 

Shipping Act could also provide 

remedy.60 The Commission also notes 

that bringing actions in traditional 

venues, such as state and federal courts, 

may be appropriate. Matters that may 

now be brought under § 41102(c) could 

also potentially be adjudicated as 

matters of contract law, agency law, or 

admiralty law. In cases prior to Kobel, 

it has been noted that remedy could 

have been sought in other venues. In 

Adair v. Penn-Nordic Lines, Inc., 26 

S.R.R. 11 (ALJ 1991), the ALJ noted that 

the relevant conduct ‘‘would 

undoubtedly have contravened other 

standards of law under principles of 

contract and common carrier law 

applicable in courts of law and quite 

possibly Mr. Adair could have obtained 

relief . . . in a court of law or perhaps 

admiralty rather than before this 

Commission.’’ 61 The Commission is 

seeking public comment on whether 

alternative avenues for redress would be 

available should the Commission 

choose to reinterpret § 41102(c). 

IV. Conclusion 

The Commission believes that the 

interpretation and application of 

§ 41102(c) should be properly aligned 

with the broader common carriage 

foundation and purposes of the Act. The 

interpretive rule is consistent with the 

purposes of the Shipping Act and 

focuses Commission activities on 

regulated entities who abuse the 

maritime shipping public by imposing 

unjust and unreasonable business 

methods, and who do so on a normal, 

customary, and continuous basis, and 

thereby negatively impact maritime 

transportation competition or inflict 

detrimental effect upon the commerce of 

the United States. This interpretation 

reflects the clear intent of Congress and 

reflects Commission precedent 

articulated in Intercoastal Investigation, 

Altieri, Stockton Elevators, European 

Trade, and Deringer. Though the 

Commission is aware that the 

interpretive rule may redirect some 

claims in certain fact situations from 

being brought under the Shipping Act, 

the Commission believes that existing 

alternative avenues of redress are fully 

sufficient to address those cases. The 

Commission is therefore seeking 

comment on the proposed 

interpretation. 

V. Public Participation 

How do I prepare and submit 

comments? 

Your comments must be written and 

in English. To ensure that your 

comments are correctly filed in the 

docket, please include the docket 

number of this document in your 

comments. 

You may submit your comments via 

email to the email address listed above 

under ADDRESSES. Please include the 

docket number associated with this 

notice and the subject matter in the 

subject line of the email. Comments 

should be attached to the email as a 

Microsoft Word or text-searchable PDF 

document. Only non-confidential and 

public versions of confidential 

comments should be submitted by 

email. 

You may also submit comments by 

mail to the address listed above under 

ADDRESSES. 


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How do I submit confidential business 

information? 

The Commission will provide 

confidential treatment for identified 

confidential information to the extent 

allowed by law. If your comments 

contain confidential information, you 

must submit the following by mail to 

the address listed above under 

ADDRESSES: 

• A transmittal letter requesting 

confidential treatment that identifies the 

specific information in the comments 

for which protection is sought and 

demonstrates that the information is a 

trade secret or other confidential 

research, development, or commercial 

information. 

• A confidential copy of your 

comments, consisting of the complete 

filing with a cover page marked 

‘‘Confidential-Restricted,’’ and the 

confidential material clearly marked on 

each page. You should submit the 

confidential copy to the Commission by 

mail. 

• A public version of your comments 

with the confidential information 

excluded. The public version must state 

‘‘Public Version—confidential materials 

excluded’’ on the cover page and on 

each affected page, and must clearly 

indicate any information withheld. You 

may submit the public version to the 

Commission by email or mail. 

Will the Commission consider late 

comments? 

The Commission will consider all 

comments received before the close of 

business on the comment closing date 

indicated above under DATES. To the 

extent possible, we will also consider 

comments received after that date. 

How can I read comments submitted 

by other people? 

You may read the comments received 

by the Commission at the Commission’s 

Electronic Reading Room or the Docket 

Activity Library at the addresses listed 

above under ADDRESSES. 

VI. Rulemaking Analyses 

Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(codified as amended at 5 U.S.C. 601– 

612) provides that whenever an agency 

is required to publish a notice of 

proposed rulemaking under the 

Administrative Procedure Act (APA) (5 

U.S.C. 553), the agency must prepare 

and make available for public comment 

an initial regulatory flexibility analysis 

(IRFA) describing the impact of the 

proposed rule on small entities. 5 U.S.C. 

603. An agency is not required to 

publish an IRFA, however, for the 

following types of rules, which are 

excluded from the APA’s notice-andcomment requirement: Interpretative 

rules; general statements of policy; rules 

of agency organization, procedure, or 

practice; and rules for which the agency 

for good cause finds that notice and 

comment is impracticable, unnecessary, 

or contrary to public interest. See 5 

U.S.C. 553(b). 

Although the Commission has elected 

to seek public comment on this 

proposed rule, the rule is an 

interpretative rule. Therefore, the APA 

does not require publication of a notice 

of proposed rulemaking in this instance, 

and the Commission is not required to 

prepare an IRFA. 

National Environmental Policy Act 

The Commission’s regulations 

categorically exclude certain 

rulemakings from any requirement to 

prepare an environmental assessment or 

an environmental impact statement 

because they do not increase or decrease 

air, water or noise pollution or the use 

of fossil fuels, recyclables, or energy. 46 

CFR 504.4. The proposed rule describes 

the Commission’s proposed 

interpretation of the scope of 46 U.S.C. 

41102(c) and the elements necessary for 

a successful claim for reparations under 

that section. This rulemaking thus falls 

within the categorical exclusion for 

matters related solely to the issue of 

Commission jurisdiction and the 

exclusion for investigatory and 

adjudicatory proceedings to ascertain 

past violations of the Shipping Act. See 

46 CFR 504.4(a)(20), (22). Therefore, no 

environmental assessment or 

environmental impact statement is 

required. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3501–3521) (PRA) requires an 

agency to seek and receive approval 

from the Office of Management and 

Budget (OMB) before collecting 

information from the public. 44 U.S.C. 

3507. The agency must submit 

collections of information in proposed 

rules to OMB in conjunction with the 

publication of the notice of proposed 

rulemaking. 5 CFR 1320.11. This 

proposed rule does not contain any 

collections of information as defined by 

44. U.S.C. 3502(3) and 5 CFR 1320.3(c). 

Executive Order 12988 (Civil Justice 

Reform) 

This rule meets the applicable 

standards in E.O. 12988 titled, ‘‘Civil 

Justice Reform,’’ to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

Regulation Identifier Number 

The Commission assigns a regulation 

identifier number (RIN) to each 

regulatory action listed in the Unified 

Agenda of Federal Regulatory and 

Deregulatory Actions (Unified Agenda). 

The Regulatory Information Service 

Center publishes the Unified Agenda in 

April and October of each year. You 

may use the RIN contained in the 

heading at the beginning of this 

document to find this action in the 

Unified Agenda, available at http://

www.reginfo.gov/public/do/ 

eAgendaMain. 

List of Subjects in 46 CFR Part 545 

Antitrust, Exports, Freight forwarders, 

Maritime carriers, Non-vessel-operating 

common carriers, Ocean transportation 

intermediaries, Licensing requirements, 

Financial responsibility requirements, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth above, the 

Federal Maritime Commission proposes 

to amend 46 CFR part 545 as follows: 

PART 545—INTERPRETATIONS AND 

STATEMENTS OF POLICY 

■ 1. The authority citation for part 545 

continues to read as follows: 

Authority: 5 U.S.C. 553; 46 U.S.C. 305, 

40307, 40501–40503, 41101–41106, and 

40901–40904; 46 CFR 515.23. 

■ 2. Add § 545.4 to read as follows: 

§ 545.4 Interpretation of Shipping Act of 

1984–Unjust and unreasonable practices. 

46 U.S.C. 41102(c) is interpreted to 

require the following elements in order 

to establish a successful claim for 

reparations: 

(a) The respondent is an ocean 

common carrier, marine terminal 

operator, or ocean transportation 

intermediary; 

(b) The claimed acts or omissions of 

the regulated entity are occurring on a 

normal, customary, and continuous 

basis; 

(c) The practice or regulation relates 

to or is connected with receiving, 

handling, storing, or delivering 

property; 

(d) The practice or regulation is unjust 

or unreasonable; and 

(e) The practice or regulation is the 

proximate cause of the claimed loss. 

By the Commission. 

Rachel Dickon, 

Secretary. 

[FR Doc. 2018–19328 Filed 9–6–18; 8:45 am] 

BILLING CODE 6731–AA–P 


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