23202 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

1Section 16 of the Shipping Act grants the 

Commission the authority to make rules exempting 

regulated entities from the requirements of the 

Shipping Act if it finds such an exemption will not 

result in substantial reduction in competition or 

detriment to commerce. 46 U.S.C. 40103. The 

Commission must make an affirmative finding, 

based on information gathered in a public record, 

that these adverse consequences will not result 

from any exemption it may grant. 

2 46 CFR part 531. The Commission’s rules 

provide that an 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. 46 CFR 531.3(p). An NSA shipper is 

a cargo owner, the person for whose account the 

ocean transportation is provided, the person to 

whom delivery is to be made, a shippers’ 

association, or a non-vessel-operating common 

carrier. 46 CFR 531.3(o). Specifically, the 

exemption allows individual NVOCCs (including 

corporately affiliated NVOCCs), who are compliant 

with the other requirements of the Shipping Act 

and the FMC’s regulations at 46 CFR part 515 and 

46 CFR part 520, to enter into an NSA with one or 

more NSA shippers. 46 CFR 531.2. 

3 Gosselin World Wide Moving, N.V. and The 

Pasha Group, involved in the shipping of household 

goods of American military personnel to and from 

Europe, were accused of bid rigging in violation of 

the Sherman Act. They argued, and the district 

court agreed, that they had antitrust immunity 

based on three provisions of the Shipping Act: (1) 

46 U.S.C. app. § 1706(a)(4), now 46 U.S.C. 

40307(a)(5); (2) 46 U.S.C. app. § 1706(a)(2), now 46 

U.S.C. 40307(a)(3); and (3) 46 U.S.C. app. 

§ 1706(c)(1), now 46 U.S.C. 40307(c). On cross 

appeals, the Fourth Circuit rejected the district 

court’s findings and the companies’ arguments. 

First, the court found that the parties’ behavior did 

not solely concern a foreign inland segment as 

required by 46 U.S.C. 40307(a)(5). The court 

rejected the argument that United States v. Tucor 

Int’l, Inc., involving shipments of household goods 

belonging to military personnel from U.S. military 

bases in the Philippines to Filipino seaports, was 

analogous. See United States v. Tucor Int’l, Inc., 35 

F. Supp. 2d 1172 (N.D. Cal. 1998), aff’d, 189 F.3d 

834 (9th Cir. 1999). Second, the court found it was 

not reasonable for the companies to rely on 46 CFR 

520.13(c) to believe their collusive behavior was 

exempt from the antitrust laws. Finally, the court 

rejected the argument that an adverse determination 

on the two grounds for statutory immunity 

discussed above constituted a denial or removal 

such that any penalty could only be imposed 

prospectively. The court also stated that exceptions 

to federal antitrust laws should be construed 

narrowly. See also In re Household Goods Movers 

Antitrust Litigation, 2009 WL 8234043 (D.S.C. Sep. 

10, 2009); U.S. v. Daily Gazette, 567 F. Supp 2d 859, 

871 (S.D.W.Va. 2008) (following Gosselin). 4 Docket No. 05–06, 70 FR 52345 (September 2, 

2005). 

5The Commission received comments from: The 

United States Department of Justice (‘‘DOJ’’); the 

United States Department of Transportation 

(‘‘DOT’’); the World Shipping Council (‘‘WSC’’); the 

International Trade Surety Association (‘‘ITSA’’); 

and Joint Comments of the National Industrial 

Transportation League, United Parcel Service, Inc., 

FEDEX Trade Networks Transport & Brokerage, Inc., 

Transportation Intermediaries Association, North 

Atlantic Alliance Association, Inc., and the 

Agriculture Ocean Transportation Coalition (‘‘Joint 

commenters’’). All comments were supportive of 

expanding the exemption to enable two or more 

unaffiliated NVOCCs to jointly offer NSAs. 

of Indian Affairs is published in the 

Federal Register as required by section 

104 of the Federally Recognized Indian 

Tribe List Act of 1994 (25 U.S.C. 479a– 

1 (2006)). 

* * * * * 

10. In § 10.15, revise paragraph (c)(1) 

to read as follows: 

§ 10.15 Limitations and remedies. 

* * * * * 

(c) * * * 

(1) A person’s administrative 

remedies are exhausted only when the 

person has filed a written claim with the 

responsible Federal agency and the 

claim has been duly denied under this 

part. This paragraph applies to both: 

(i) Human remains, funerary objects, 

sacred objects, or objects of cultural 

patrimony subject to subpart B of this 

part; and 

(ii) Federal collections subject to 

subpart C of this part. 

* * * * * 

Appendices A and B [Removed] 

11. Remove Appendices A and B. 

Dated: March 30, 2012. 

Rachel Jacobson, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2012–9228 Filed 4–17–12; 8:45 am] 

BILLING CODE 4312–50–P 

FEDERAL MARITIME COMMISSION 

46 CFR Part 531 

[Docket No. 12–05] 

Non-Vessel-Operating Common Carrier 

Service Arrangements 

AGENCY: Federal Maritime Commission. 

ACTION: Notice of Inquiry. 

SUMMARY: The Federal Maritime 

Commission is issuing this Notice of 

Inquiry seeking comments on its rules 

which exempt non-vessel-operating 

common carriers who enter into service 

arrangements from certain tariff filing 

requirements of the Shipping Act of 

1984. 

DATES: Comments are due on or before 

June 18, 2012. 

ADDRESSES: Submit comments to: Karen 

V. Gregory, Secretary, Federal Maritime 

Commission, 800 North Capitol Street 

NW., Washington, DC 20573–0001; or 

email non-confidential comments to: 

Secretary@fmc.gov (email comments as 

attachments preferably in Microsoft 

Word or PDF). 

FOR FURTHER INFORMATION CONTACT: 

Karen V. Gregory, Secretary, Federal 

Maritime Commission, 800 N. Capitol 

Street NW., Washington, DC 20573– 

0001, Phone: (202) 523–5725, Fax: (202) 

523–0014, Email: Secretary@fmc.gov. 

Rebecca A. Fenneman, General 

Counsel, Federal Maritime Commission, 

800 N. Capitol Street NW., Washington, 

DC 20573–0001, (202) 523–5740, Fax 

(202) 523–5738, Email: 

GeneralCounsel@fmc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

In December 2004, the Commission 

issued a final rule exempting 1 nonvessel-operating common carriers 

(NVOCCs) who enter into NVOCC 

service arrangements (NSAs) from 

certain tariff requirements of the 

Shipping Act of 1984 (Act).2 The rule 

allows NVOCCs to enter into NSAs with 

their customers in lieu of publishing 

those arrangements in a publiclyavailable tariff, as otherwise would be 

required by Sections 8(a) and 10 of the 

Shipping Act. In the preamble to the 

final rule, the Commission stated that it 

would continue to consider how it 

could remove limitations on shipper 

participation while ensuring that the 

criteria of Section 16 were met. 69 FR 

75850, 75852 (December 20, 2004). 

The ability of two or more unaffiliated 

NVOCCs to jointly offer NSAs was not 

included in part 531, in part due to 

ongoing litigation that included 

arguments on whether two or more 

NVOCCs acting concertedly in NSAs 

were immune from the prohibitions of 

the antitrust laws. See United States v. 

Gosselin World Wide Moving, N.V., 411 

F.3d 502 (4th Cir. 2005), cert. denied, 

547 U.S. 1002 (2006).3 The ruling in the 

Gosselin case alleviated the 

Commission’s concerns that NVOCCs 

acting jointly through NSAs would 

create a potential for reduction in 

competition through immunity from the 

antitrust laws. In August 2005, the 

Commission issued a notice of inquiry 

to consider expanding the exemption 

provided for in 46 CFR part 531 to 

enable two or more unaffiliated 

NVOCCs to jointly offer NSAs.4

Commenters were given until October 

20, 2005, to address a set of questions 

designed to provide information and 

perspectives on the likely impact of 

joint NSA authority.5

In its Plan for Retrospective Review of 

Existing Rules, published on November 

4, 2011, the Commission announced its 

intention to conduct a full review of 

part 531, governing NSAs, no later than 

2013. The purpose of the review is to 

determine whether the NSA regulations 

should be modified, streamlined, 

expanded, or repealed to make them 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 23203 

more effective or less burdensome. The 

Commission considered action on 

Docket No. 05–06 at its December 8, 

2011 meeting. On April 12, 2012, the 

Commission issued an order 

discontinuing Docket No. 05–06, citing 

its intention to conduct a full review of 

its regulations contained in part 531 

governing NSAs, in accordance with its 

Plan for Retrospective Review of 

Existing Rules. 

Accordingly, the Commission now 

invites comment and information from 

all members of the interested public 

(whether they be located in the United 

States or elsewhere), including ocean 

common carriers, ocean transportation 

intermediaries, exporters, and beneficial 

cargo owners, on ways to improve or 

change part 531. The Commission 

specifically requests comments and 

current information on (1) extending the 

exemption to allow two or more 

unaffiliated NVOCCs to jointly offer 

NSAs, and (2) how to make the NSA 

rules less burdensome and more 

effective in achieving the objectives of 

the Shipping Act. Comments that are 

specific and provide supporting data are 

most helpful. 

Submit Comments 

Non-confidential filings may be 

submitted in hard copy or by email as 

an attachment (preferably in Microsoft 

Word or PDF) addressed to 

secretary@fmc.gov on or before June 18, 

2012. Include in the subject line: 

‘‘NSAs—Response to NOI.’’ Confidential 

filings must be submitted in the 

traditional manner on paper, rather than 

by email. Comments submitted that seek 

confidential treatment must be 

submitted in hard copy by U.S. mail or 

courier. Confidential filings must be 

accompanied by a transmittal letter that 

identifies the filing as ‘‘confidential’’ 

and describes the nature and extent of 

the confidential treatment requested. 

When submitting comments in response 

to the Notice of Inquiry that contain 

confidential information, the 

confidential copy of the filing must 

consist of the complete filing and be 

marked by the filer as ‘‘ConfidentialRestricted,’’ with the confidential 

material clearly marked on each page. 

When a confidential filing is submitted, 

an original and one additional copy of 

the public version of the filing must be 

submitted. The public version of the 

filing should exclude confidential 

materials, and be clearly marked on 

each affected page, ‘‘confidential 

materials excluded.’’ The Commission 

will provide confidential treatment to 

the extent allowed by law for those 

submissions, or parts of submissions, for 

which confidential treatment is 

requested. Questions regarding filing or 

treatment of confidential responses to 

this Notice of Inquiry should be directed 

to the Commission’s Secretary, Karen V. 

Gregory, at the telephone number or 

email provided above. 

By the Commission. 

Karen V. Gregory, 

Secretary. 

[FR Doc. 2012–9270 Filed 4–17–12; 8:45 am] 

BILLING CODE 6730–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 12–84; RM–11627; DA 12– 

551] 

Radio Broadcasting Services; Summit, 

MS 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: This document sets forth a 

proposal to amend the FM Table of 

Allotments. The Commission requests 

comment on a petition filed by Bowen 

Broadcasting, proposing to amend the 

Table of Allotments by allotting FM 

Channel 228A at Summit, Mississippi, 

as that community’s first local broadcast 

service. Channel 228A can be allotted at 

Summit, Mississippi, in compliance 

with the Commission’s minimum 

distance separation requirements with a 

site restriction of 14.2 km (8.8 miles) 

east of Summit, at 31–17–07 North 

Latitude and 90–19–10 West Longitude. 

See SUPPLEMENTARY INFORMATION infra. 

DATES: Comments must be filed on or 

before May 29, 2012. Reply comments 

must be filed on or before June 13, 2012. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street SW., 

Washington, DC 20554. In addition to 

filing comments with the FCC, 

interested parties should serve 

petitioner as follows: Cliff J. Bowen, Jr., 

Officer, Bowen Broadcasting, 1125 

Petrified Forest Road, Flora, Mississippi 

39071. 

FOR FURTHER INFORMATION CONTACT: 

Deborah A. Dupont, Media Bureau (202) 

418–7072. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

12–84, adopted April 5, 2012, and 

released April 6, 2012. The document 

proposes to amend Section 73.202 (b) of 

the Commission’s rules, 47 CFR Section 

73.202(b). The full text of this 

Commission Notice of Proposed Rule 

Making is available for inspection and 

copying during normal business hours 

in the FCC Reference Information Center 

(Room CY–A257), 445 12th Street SW., 

Washington, DC 20554. 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, (800) 378–3160, 

or via the company’s Web site, 

www.bcpiweb.com. This document does 

not contain proposed information 

collection requirements subject to the 

Paperwork Reduction Act of 1995, 

Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506 (c)(4). 

The Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. Members of the public 

should note that from the time a Notice 

of Proposed Rule Making is issued until 

the matter is no longer subject to 

Commission consideration or court 

review, all ex parte contacts are 

prohibited in Commission proceedings, 

such as this one, which involve channel 

allotments. See 47 CFR 1.1204(b) for 

rules governing permissible ex parte 

contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting. 

Federal Communications Commission. 

Nazifa Sawez, 

Assistant Chief, Audio Division, Media 

Bureau. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

Part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for Part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336 

and 339. 

§ 73.202 [Amended] 

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

Allotments under Mississippi, is 

amended by adding Summit, Channel 

228A. 

[FR Doc. 2012–9346 Filed 4–17–12; 8:45 am] 

BILLING CODE 6712–01–P 

mstockstill on DSK4VPTVN1PROD with PROPOSALS