31666 Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Proposed Rules 

Flooding source(s) Location of referenced elevation ** 

* Elevation in feet (NGVD) 

+ Elevation in feet (NAVD) 

# Depth in feet above 

ground 

∧Elevation in meters 

(MSL) 

Communities affected 

Effective Modified 

Village of Balsam Lake 

Maps are available for inspection at Village Hall, 404 Main Street, Balsam Lake, WI 54810. 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: June 17, 2009. 

Deborah S. Ingram, 

Acting Deputy Assistant Administrator for 

Mitigation, Mitigation Directorate, 

Department of Homeland Security, Federal 

Emergency Management Agency. 

[FR Doc. E9–15674 Filed 7–1–09; 8:45 am] 

BILLING CODE 9110–12–P 

FEDERAL MARITIME COMMISSION 

46 CFR Part 535 

[Docket No. 09–02] 

RIN 3072–AC35 

Repeal of Marine Terminal Agreement 

Exemption 

AGENCY: Federal Maritime Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Maritime 

Commission proposes to repeal the 

exemption from the 45-day waiting 

period requirement applicable to certain 

Marine Terminal Agreements. The 

Commission also proposes to correct a 

typographical error in its regulations. 

DATES: Comments are due by August 17, 

2009. 

ADDRESSES: Address all comments 

concerning this proposed rule to: Karen 

V. Gregory, Secretary, Federal Maritime 

Commission, 800 North Capitol Street, 

NW., Room 1046, Washington, DC 

20573–0001, Secretary@fmc.gov, (202) 

523–5725. 

FOR FURTHER INFORMATION CONTACT: 

Peter J. King, General Counsel, Federal 

Maritime Commission, 800 North 

Capitol Street, NW., Room 1018, 

Washington, DC 20573–0001, 

generalcounsel@fmc.gov, (202) 523– 

5740. 

SUPPLEMENTARY INFORMATION: 

Submit Comments: Submit an original 

and 15 copies of comments in paper 

form, and submit a copy in electronic 

form (Microsoft Word 2003) by e-mail to 

secretary@fmc.gov. Include in the e-mail 

subject line: ‘‘Comments on Repeal of 

Marine Terminal Agreement 

Exemption’’. 

Under section 16 of the Shipping Act, 

the Commission may exempt any class 

of agreements from the requirements of 

the Act if the Commission finds that the 

exemption will not result in substantial 

reduction in competition or be 

detrimental to commerce. 46 U.S.C. 

40103. The Commission may attach 

conditions to any exemption. Id. An 

exemption previously granted may be 

revoked, by order, after affording 

interested persons an opportunity for a 

hearing. Id. 

In Docket No. 85–10, the Commission 

determined that it would exempt certain 

marine terminal agreements from the 

45-day waiting period requirement, 

based upon its finding that such 

exemption would not substantially 

impair effective regulation by the 

Commission, be unjustly discriminatory 

or detrimental to commerce, nor result 

in a substantial reduction in 

competition within the meaning of 

Section 16 of the Shipping Act. Marine 

Terminal Agreements, 24 S.R.R. 192, 

193–194 (FMC 1987). Initially adopted 

as section 572.307, this provision was 

later re-designated as section 535.308. 

In the years since September 11, 2001, 

agreements filed with the Commission 

by marine terminal operators (MTOs) 

reveal the greater complexity of subject 

matter and the wider range of 

operational issues that the marine 

terminal industry seeks to address in 

MTO agreements. See, e.g., testimony of 

Win Froelich of the National 

Association of Waterfront Employers 

before the House Transportation and 

Infrastructure Committee, 

Subcommittee on Coast Guard and 

Maritime Transportation (June 19, 2008) 

at 8 (citing, inter alia, newly created or 

imposed responsibilities for MTOs in 

areas of traffic congestion and noise 

issues, pollution abatement, and port 

security). 

As port agreements have evolved 

beyond simple landlord-tenant issues, 

such agreements increasingly have the 

potential to incur the anticompetitive 

consequences that the Commission 

deemed unlikely when it first adopted 

the exemption. Under current rule 

535.308, marine terminal agreements 

become effective upon filing, depriving 

the Commission of pre-effectiveness 

opportunity to review the agreements 

during the statutory 45-day waiting 

period and the opportunity to seek 

access to additional information from 

the agreement parties necessary for the 

Commission to perform its statutory 

duties under section 6 of the Shipping 

Act, 46 U.S.C. 40304, 41307. The 

absence of any waiting period 

requirement for marine terminal 

agreements under section 535.308 may 

frustrate the Commission’s function of 

preventing a reduction in competition 

under section 6 of the Shipping Act, 

whether filed by public or private MTO 

parties. It therefore appears that section 

535.308 may no longer be serving the 

original intent of the Commission’s 

rulemaking. 

In addition, recent review by the 

Commission of a marine terminal 

agreement filed under § 535.308 

demonstrates that the application and 

interpretation of the exemption has 

proven relatively complex to the 

industry and to counsel: 

In considering the plain text of the cited 

provision, the operative requirements of the 

foregoing exemption specify application of 

the exemption only to: (1) An agreement, 

written or oral; (2) that applies to future, 

prospective activities; (3) that relates solely 

to marine terminal facilities and/or services; 

(4) among marine terminal operators and 

among one or more marine terminal 

operators and one or more ocean common 

carriers; and (5) that completely sets forth the 

applicable rates, charges, terms and 

conditions agreed to by the parties for the 

facilities and/or services. The burden of 

establishing the applicability of an 

exemption falls on the person claiming the 

exemption. 

Petition of Certain Marine Terminal 

Operator Parties to Agreement No. 

201199, Petition No. P2–08, Order at 5– 

6 (January 16, 2009). Further, such 

exempt agreements must not be a joint 

venture agreement, marine terminal 

conference agreement, marine terminal 

discussion agreement or marine 

terminal interconference agreement. 46 

CFR 535.308(a). The current provisions 

have underscored the potential for 

future confusion and dispute as to the 

proper application of the section 

535.308 exemption. 

Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Proposed Rules 31667 

Since the adoption of § 535.308 in 

1987, relatively few agreements have 

been filed claiming the waiting period 

exemption. As the number of filings 

claiming the exemption has been 

negligible, repeal of the section will 

have minimal impact on the shipping 

industry. Moreover, where agreement 

parties experience exigent 

circumstances justifying early 

effectiveness, the Shipping Act and the 

Commission regulations allow the 

parties to seek expedited review. See 46 

U.S.C. 40304(e) and 46 CFR 535.605. 

Even with respect to the three 

agreements that claimed application of 

the section 535.308 exemption (FMC 

Agreement Nos. 201176, 201196 and 

201199), it remains subject to some 

dispute whether those agreements were 

in fact qualified for the exemption. It 

appears that the agreements may be 

ineligible for the waiting period 

exemption, or could more appropriately 

be characterized as a marine terminal 

services agreement subject to an existing 

exemption at § 535.309 or a marine 

terminal facilities agreement subject to 

an exemption at § 535.310. These 

provisions exempt marine terminal 

services agreements and marine 

terminal facilities agreements from both 

the filing and waiting period 

requirements of the Shipping Act. 46 

CFR 535.309 and 535.310. 

To be conferred antitrust immunity, 

the parties may file such marine 

terminal services agreements pursuant 

to § 535.301(b) as an ‘‘optional filing.’’ 

Repeal of § 535.308 thus may benefit the 

industry by clarifying and streamlining 

the application of the Commission’s 

regulations and by directing the 

industry to utilize the exemptions 

available under § 535.309 or § 535.310. 

I. The Proposed Rulemaking 

In view of the foregoing reasons, the 

Commission proposes to make the 

following changes to 46 CFR Part 535. 

First, the Commission proposes to 

repeal 46 CFR 535.308 by removing it 

from the CFR. 

Second, the Commission proposes to 

amend 46 CFR 535.309(b)(1) to add the 

definition of marine terminal conference 

agreement, which is currently defined 

in 46 CFR 535.308. 

Third, the Commission proposes to 

correct a typographical error in 46 CFR 

535.604(b). 

II. Statutory Review and Requests for 

Comment 

In accordance with the Regulatory 

Flexibility Act, 5 U.S.C. 601–612, the 

Chairman of the Federal Maritime 

Commission certifies that the proposed 

rule, if promulgated, would not have a 

significant economic impact on a 

substantial number of small entities. 

The regulated entities that would be 

affected by the rule are limited to 

marine terminal operators and ocean 

common carriers. Pursuant to the 

guidelines of the Small Business 

Administration, the Commission has 

determined that these entities do not 

qualify as small for the purpose of the 

Small Business Regulatory Enforcement 

Fairness Act. The rule would simply 

require that agreements between marine 

terminal operators, or between or among 

marine terminal operators and ocean 

common carriers, be made subject to the 

requirements of section 6 of the 

Shipping Act of 1984, 46 U.S.C. 40304, 

and Commission agreement rules, 46 

CFR Part 535. 

This regulatory action is not a ‘‘major 

rule’’ under 5 U.S.C. 804(2). 

List of Subjects in 46 CFR Part 535 

Ocean Common Carrier and Marine 

Terminal Operator Agreements Subject 

to the Shipping Act of 1984. 

For the reasons set forth above, the 

Federal Maritime Commission proposes 

to amend 46 CFR Part 535 Subpart C as 

follows: 

PART 535—OCEAN COMMON 

CARRIER AND MARINE TERMINAL 

OPERATOR AGREEMENTS SUBJECT 

TO THE SHIPPING ACT OF 1984 

1. The authority citation for Part 535 

continues to read as follows: 

Authority: 5 U.S.C. 553; 46 U.S.C. 1701– 

1707, 1709–1710, 1712 and 1714–1718; 

Public Law 105–258, 112 Stat. 1902 (46 

U.S.C. 1701 note); Sec. 424, Public Law 105– 

383, 112 Stat. 3440. 

Subpart C—Exemptions 

§ 535.308 [Removed] 

2. Remove § 535.308. 

3. Amend § 535.309 by revising 

paragraph (b)(1) to read as follows: 

§ 535.309 Marine terminal services 

agreements—exemption. 

* * * * * 

(b) * * * 

(1) They do not include rates, charges, 

rules, and regulations that are 

determined through a marine terminal 

conference agreement. Marine terminal 

conference agreement means an 

agreement between or among two or 

more marine terminal operators and/or 

ocean common carriers for the conduct 

or facilitation of marine terminal 

operations that provides for the fixing of 

and adherence to uniform maritime 

terminal rates, charges, practices and 

conditions of service relating to the 

receipt, handling, and/or delivery of 

passengers or cargo for all members; and 

* * * * * 

§ 535.604 [Amended] 

4. Amend § 535.604 by removing the 

word ‘‘latter’’ and adding in its place the 

word ‘‘later’’ in paragraph (b). 

By the Commission. 

Karen V. Gregory, 

Secretary. 

[FR Doc. E9–15605 Filed 7–1–09; 8:45 am] 

BILLING CODE 6730–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 52 

[WC Docket No. 07–244; CC Docket No. 95– 

116; FCC 09–41] 

Local Number Portability Porting 

Interval and Validation Requirements; 

Telephone Number Portability 

AGENCY: Federal Communications 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Communications 

Commission (Commission) adopted a 

Further Notice of Proposed Rulemaking 

(60 FR 39136, August 1, 1995) seeking 

comment on what further steps the 

Commission should take, if any, to 

improve the process of changing 

telecommunications providers and 

discussing any new ideas that reflect 

and build upon the new one-businessday interval for simple ports. 

DATES: Comments are due on or before 

August 3, 2009, and reply comments are 

due on or before August 31, 2009. 

ADDRESSES: You may submit comments, 

identified by WC Docket No. 07–244 

and CC Docket No. 95–116, by any of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• E-mail: ecfs@fcc.gov, and include 

the following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

Include the docket number(s) in the 

subject line of the message. 

• Mail: Secretary, Federal 

Communications Commission, 445 12th 

Street, SW., Washington, DC 20554. 

• Hand Delivery/Courier: 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. 

• People with Disabilities: Contact the 

FCC to request reasonable