Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations 18533

possibility of an unintended impact on

service for the U.S. Pacific northwest. It

would also take into account Hawaii’s

unique position and reliance on

maritime commerce, ensuring that ports

and commerce in that state are not

disadvantaged by the rule. The

proposed exceptions are narrowly

crafted, and do not undermine the larger

objectives of the rule, that is, addressing

the restrictive and unfavorable

conditions facing U.S. commerce and

U.S. companies in Japan’s ports which

result from the laws and policies of the

Government of Japan. It does not appear

that service strings or vessel calls other

than those listed above would be

affected by this proposed language.

We would also note that, except with

regard to the two NYK services noted

above, further analysis by the

Commission since the issuance of the

final rule supports and reconfirms our

earlier finding that carriers are unlikely

to drop port calls or divert services in

response to the Commission’s fee.

Moreover, it has been widely reported

in the press that the Japanese carriers

have informed their customers that their

current services will continue without

interruption. Therefore, we would

reaffirm that the likelihood of any

undue harm to U.S. ports and shippers

from the Commission’s action appears

exceptionally low.

List of Subjects in 46 CFR Part 586

Cargo vessels, Exports, Foreign

relations, Imports, Maritime carriers,

Penalties, Rates and fares, Tariffs.

Therefore, pursuant to section 19(1)(b)

of the Merchant Marine Act, 1920, 46

U.S.C. app. 876(1)(b), as amended,

Reorganization Plan No. 7 of 1961, 75

Stat. 840, and 46 CFR part 585, part 586

of Title 46 of the Code of Federal

Regulations is amended as follows:

PART 586—[AMENDED]

1. The authority citation for Part 586

continues to read as follows:

Authority: 46 U.S.C. app. 876(1)(b); 46

U.S.C. app. 876(5) through (12); 46 CFR Part

585; Reorganization Plan No. 7 of 1961, 26

FR 7315 (August 12, 1961).

2. In § 586.2, paragraph (c) is revised

to read as follows:

§ 586.2 Conditions unfavorable to

shipping in the United States/Japan trade.

* * * * *

(c) Assessment of fees. A fee of one

hundred thousand dollars is assessed

each time a designated vessel is entered

in any port of the United States from

any foreign port or place; provided,

however, that no fee is assessed against

a designated vessel if:

(1) That vessel has previously been

assessed a fee under this section within

the past seven days, or

(2) For a vessel calling in the state of

Hawaii, that vessel has previously been

assessed a fee under this section within

the past forty days.

* * * * *

By the Commission.

Joseph C. Polking,

Secretary.

[FR Doc. 97–9811 Filed 4–14–97; 1:15 pm]

BILLING CODE 6730–01–W

FEDERAL MARITIME COMMISSION

46 CFR Part 586

[Docket No. 96–20]

Port Restrictions and Requirements in

the United States/Japan Trade

AGENCY: Federal Maritime Commission.

ACTION: Final rule; delay of effective

date, requirement for reporting, and

request for comments.

SUMMARY: The Federal Maritime

Commission is delaying the effective

date of its final rule assessing fees on

liner vessels operated by Japanese

carriers, in light of recent commitments

made by the Government of Japan

addressing restrictive and unfavorable

conditions for the use of Japanese ports.

DATES: Effective April 13, 1997, delay

until September 4, 1997, the effective

date of the rules published March 4,

1997 (62 FR 9696), as amended by the

Commission April 11, 1997 in a rule to

be published April 16, l997. Status

reports and comments are due July 1,

1997, and August 5, 1997.

ADDRESSES: Filings and requests for

publicly available information should

be addressed to:

Joseph C. Polking, Secretary, Federal

Maritime Commission, 800 North

Capitol Street, N.W., Washington, D.C.

20573 (202)523–5725.

FOR FURTHER INFORMATION CONTACT:

Thomas Panebianco, General Counsel,

Federal Maritime Commission, 800

North Capitol Street, N.W., Washington,

D.C. 20573, (202)523–5740.

SUPPLEMENTARY INFORMATION: On March

4, 1997, the Commission published a

final rule pursuant to section 19(1)(b) of

the Merchant Marine Act, 1920, 46

U.S.C. app. 876(1)(b), to assess pervoyage fees on Japanese liner carriers,

effective April 14, 1997, in response to

restrictive and unfavorable requirements

for the use of Japanese ports. An

amendment to the final rule was issued

by the Commission on April 11, 1997,

providing that fees would not be

assessed twice in a seven day period (or,

for port calls in Hawaii, in a 40 day

period). In light of commitments made

by the Government of Japan in recent

bilateral talks with the United States

Government addressing the unfavorable

conditions identified in the final rule,

the Commission has decided to suspend

the effective date of the rule.

The Commission issued its final rule

after a comprehensive inquiry into

restrictions and requirements facing

U.S. carriers and U.S. commerce in

Japanese ports. The fees were deemed

necessary in light of the Commission’s

identification of a number of conditions

unfavorable to shipping warranting

action under section 19:

• Shipping lines in the Japan-U.S.

trades are not allowed to make

operational changes, major or minor,

without the permission of the Japan

Harbor Transportation Association

(‘‘JHTA’’), an association of Japanese

waterfront employers operating with the

permission of, and under the regulatory

authority and ministerial guidance of,

the Japan Ministry of Transport

(‘‘MOT’’).

• JHTA has absolute and

unappealable discretion to withhold

permission for proposed operational

changes by refusing to accept such

proposals for ‘‘prior consultation,’’ a

mandatory process of negotiations and

pre-approvals involving carriers, JHTA,

and waterfront unions.

• There are no written criteria for

JHTA’s decisions whether to permit or

disallow carrier requests for operational

changes, nor are there written

explanations given for the decisions.

• JHTA uses and has threatened to

use its prior consultation authority to

punish and disrupt the business

operations of its detractors.

• JHTA uses its authority over carrier

operations through prior consultation as

leverage to extract fees and impose

operational restrictions, such as Sunday

work limits.

• JHTA uses its prior consultation

authority to allocate work among its

member companies, by barring carriers

and consortia from freely choosing

operators and by compelling shipping
18534 Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations

1The date suggested by the U.S. carriers would

meet our objectives of affording the parties an

opportunity to conclude the consultative process

and submit reports, and giving the Commission the

opportunity to further evaluate the results.

However, the proposed date falls during a holiday

weekend.

2Section 19(6) of the Merchant Marine Act, 1920,

46 U.S.C. app. § 876(6), states:

(a) the Commission may, by order, require any

person * * * to file with the Commission a report,

answers to questions, documentary material, or

other information which the Commission considers

necessary or appropriate; (b) the Commission may

require a report or answers to questions to be made

under oath;

* * * * *

lines to hire additional, unneeded

stevedore companies or contractors.

• MOT administers a licensing

standard which blocks new entrants

from the stevedoring industry in Japan,

protecting JHTA’s dominant position,

and ensuring that the stevedoring

market remains entirely Japanese.

• Because of the restrictive licensing

requirement, U.S. carriers cannot

perform stevedoring or terminal

operating services for themselves or

third parties in Japan, as Japanese

carriers do in the United States.

In the rule, the Commission observed

that these conditions were matters of

longstanding concern to the United

States Government, and that repeated

diplomatic efforts to resolve them had

been unsuccessful. Since the rule was

issued, the United States Government

has undertaken a number of

discussions, diplomatic approaches, and

consultations to persuade the

Government of Japan to remedy the

conditions identified in the rule. The

most recent and most intensive of these

efforts was a series of consultations,

commencing April 2, 1997, and

concluding Friday, April 11, 1997. At

that time, the two sides signed a

Memorandum of Consultation

containing a series of statements and

agreements concerning Japanese port

practices, licensing, and prior

consultation.

With regard to licensing, the Japanese

side confirmed that license applications

meeting the standards stipulated in the

Port Transportation Business Law will

be approved by MOT within

approximately four months of receipt

when such applications meet the

following criteria:

1. They are submitted by foreign

carriers and their subsidiaries;

2. They are for General Port

Transportation Business Licenses as set

forth in Article 3, Section 1 of the Port

Transportation Business Law and/or

Port Stevedoring Business Licenses as

set forth in Section 2 of the same article;

and

3. They are for operations to be

conducted for the applicant’s (or the

applicant’s parent’s) own account and/

or for its consortia partners and third

parties at berths leased in a

containership port by the applicant (or

the applicant’s parent).

The Japanese side stated that MOT is

knowledgeable regarding the operations

of U.S. carriers and their consortia

partners in Japan’s ports and that, based

on this knowledge, completed

applications by these companies for

operations at berths leased by the

applicant (or the applicant’s parent)

would be in compliance with the law

and, accordingly, will be approved.

With regard to prior consultation, the

Japanese Government explained that,

under the leadership of MOT,

concerned parties have endorsed an

agreement that provides a framework for

reforming the prior consultation system

by July 31, 1997. MOT stated that it will

continue to use its ‘‘maximum effort,’’

and clarified a number of other points,

including: prior consultation will not be

used to allocate work among operators;

all carriers have freedom to contract

with any operator; all requests for prior

consultation will be considered; the socalled ‘‘pre-pre-prior consultation’’ will

not be required. The U.S. side stressed

four important goals to be achieved by

July 31, 1997, relating to the elimination

of minor matter consultations, the

process of major matter consultations,

the definition of ‘‘major’’ and ‘‘minor’’

matters, and the implementation of a

transparent appeals process under MOT

direction.

As was agreed in the talks, at the

conclusion of the consultations a letter

was sent by the head of the U.S.

delegation, Maritime Administrator A.J.

Herberger, to FMC Chairman Harold J.

Creel, Jr., stating that the discussions

were conducted in good faith and

represent a reasonable basis for the

Commission not to impose the proposed

sanctions on April 14, 1997.

In the wake of the signing of the

Memorandum of Consultation,

comments were submitted by the U.S.

carriers, American President Lines, Ltd.

and Sea-Land Service, Inc., and a

response was filed by Japanese carriers

Kawasaki Kisen Kaisha, Ltd., Mitsui

O.S.K. Lines, Ltd., and Nippon Yusen

Kaisha.

The U.S. carriers call MOT’s

commitments on licensing

‘‘meaningful’’ and ‘‘excellent progress.’’

With regard to the approach on prior

consultation, the U.S. carriers state that,

since the process has been dominated

by JHTA, they see ‘‘obvious risks.’’

However, they state that MOT has

shown new leadership in convening this

process and has undertaken to use its

best efforts to reach a conclusion

satisfactory to all parties. Expressing the

belief that MOT guidance is significant

and holds promise for reform in the near

term, the U.S. carriers state that it would

be appropriate to give this process time

to work without the distraction of

imposed sanctions.

The Commission agrees. The

Government of Japan’s commitments on

licensing are highly laudable, and, once

implemented, will go far toward

providing the type of reciprocal

treatment in Japan that Japanese carriers

enjoy in this country. The approach

agreed on will benefit not just the

carriers involved, but also all

oceanborne trade and commerce

between the U.S. and Japan.

The Commission remains concerned

about the prior consultation system, and

the attendant market power enjoyed by

JHTA. However, in light of the fact that

the approach described in the

Memorandum of Consultation has been

agreed to by the parties, we find that it

would be appropriate to allow that

process an opportunity to achieve

results without the imposition of

sanctions. MOT’s recently demonstrated

commitment to action and oversight in

this area has renewed our optimism that

the necessary reforms will be

implemented in a timely manner.

The U.S. carriers recommend

deferring the effectiveness of the final

rule until August 30, 1997. The Japanese

carriers, however, suggest that the

effectiveness of the final rule be

suspended indefinitely. The

Commission has elected to adopt the

U.S. carriers’ suggestion and defer the

rule’s effectiveness until a date certain.

The Commission appreciates the

commendable efforts made thus far by

the Government of Japan, both in

making the above-described

commitments and clarifications in the

consultations, and also in convening

and leading the ongoing discussions in

Japan. The Commission has accordingly

determined that the imposition of fees is

not warranted at this time. Moreover,

the Commission has the highest respect

for, and confidence in, MOT officials.

However, the basis of the Commission’s

rule is the unfavorable conditions which

exist in Japanese ports. Until such

conditions are substantially remedied,

in a concrete and identifiable way, the

Commission cannot permanently

suspend or withdraw the rule.

Therefore, the effectiveness of the rule

is suspended until September 4, 1997.1

The Commission has elected to require

the carriers to file status reports

describing developments relevant to this

proceeding.2 If warranted, the
Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations 18535

(d) a person who fails to file * * * information

required to be filed under this paragraph shall be

liable to the United States Government for a civil

penalty of not more than $5000 for each day that

the information is not provided.

Commission will reassess the

suspension of the rule based on the

information submitted.

Therefore, it is ordered That the

effective date of the rules published

March 4, 1997 (62 FR 9696), as amended

by the Commission April 11, 1997 (in a

rule to be published April 16, 1997),

amending Part 586 of Title 46 of the

Code of Federal Regulations, is hereby

suspended until September 4, 1997.

It is further ordered, That the

following parties are ordered to file

reports with the Commission on July 1,

1997, and August 5, 1997: American

President Lines, Ltd.; Sea-Land Service,

Inc.; Kawasaki Kisen Kaisha, Ltd.;

Mitsui O.S.K. Lines, Ltd.; and Nippon

Yusen Kaisha. These reports should

describe, in detail:

• the status of the consultative

process to reform the prior consultation

system;

• any planned or implemented

changes to the prior consultation

system, and the observed or expected

effects of these changes;

• the role of the Government of Japan

in any future prior consultation system

or related review or appeals process;

• the extent to which carriers in Japan

have freedom to contract with any port

transportation business operator;

• the status of any efforts by U.S.

carriers to secure licenses to operate

port transportation businesses or to

establish such businesses;

• any other information relevant to

this proceeding that parties wish to

bring to the attention of the

Commission.

It is further ordered, That any other

persons with information relevant to

this proceeding may submit comments

for the Commission’s consideration, due

on July 1, 1997, and August 5, 1997.

By the Commission.

Joseph C. Polking,

Secretary.

[FR Doc. 97–9903 Filed 4–14–97; 1:15 pm]

BILLING CODE 6730–01–W

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 96–241; RM–8928]

Radio Broadcasting Services; Minden

and Natchitoches, LA

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission, at the

request of Ninety-Five Point Seven, Inc.,

licensee of Station KASO(FM), Channel

239A, Minden, Louisiana, and Bundrick

Communications, Inc., licensee of

Station KZBL(FM), Channel 240A,

Natchitoches, Louisiana, substitutes

Channel 239C2 for Channel 239A at

Minden and modifies the license of

Station KASO(FM) to specify the higher

powered channel. To accommodate the

upgrade at Minden, the Commission

also substitutes Channel 264A for

Channel 240A at Natchitoches, and

modifies the license of Station

KZBL(FM) to specify the alternate Class

A channel. See 61 FR 65508, December

13, 1996, and Supplemental

Information, infra. With this action, this

proceeding is terminated.

EFFECTIVE DATE: May 27, 1997.

FOR FURTHER INFORMATION CONTACT: Pam

Blumenthal, Mass Media Bureau, (202)

418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, MM Docket No. 96–241,

adopted April 2, 1997, and released

April 11, 1997. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street, NW,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy contractor,

ITS, Inc., (202) 857–3800, 2100 M

Street, NW, Suite 140, Washington, DC

20037.

All channels can be allotted to the

above-noted communities in

compliance with the Commission’s

minimum distance separation

requirements. Channel 239C2 can be

allotted to Minden with a site restriction

of 9.2 kilometers (5.7 miles) northwest.

The coordinates for Channel 239C2 are

32–39–06 NL and 93–22–15 WL.

Channel 264A can be allotted to

Natchitoches at the transmitter site

specified in Station KZBL(FM)’s license.

The coordinates for Channel 264A at

Natchitoches are 31–48–18 NL and 93–

01–29 WL.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: Secs. 303, 48 Stat., as amended,

1082; 47 U.S.C. 154, as amended.

§ 73.202 [Amended]

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

Allotments under Louisiana, is

amended by removing Channel 239A

and adding Channel 239C2 at Minden;

and by removing Channel 240A and

adding Channel 264A at Natchitoches.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 97–9826 Filed 4–15–97; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 96–224, RM–8906]

Radio Broadcasting Services; Clear

Lake, SD

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission, at the

request of Lac Qui Parle Broadcasting

Company, Inc., allots Channel 296C3 at

Clear Lake, South Dakota, as the

community’s first local aural

transmission service. See 61 FR 60067,

November 26, 1996. Channel 296C3 can

be allotted to Clear Lake in compliance

with the Commission’s minimum

distance separation requirements with a

site restriction of 2.7 kilometers (1.6

miles) southwest to avoid a shortspacing to the licensed site of Station

KMGK(FM), Channel 296A, Glenwood,

Minnesota. The coordinates for Channel

296C3 at Clear Lake are North Latitude

44–44–21 and West Longitude 96–42–

38. With this action, this proceeding is

terminated.

DATES: Effective May 27, 1997. The

window period for filing applications

for Channel 296C3 at Clear Lake, South

Dakota, will open on May 27, 1997, and

close on June 27, 1997.

FOR FURTHER INFORMATION CONTACT:

Sharon P. McDonald, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, MM Docket No. 96–224,

adopted April 2, 1997, and released

April 11, 1997. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street, NW.,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy

contractors, International Transcription