53068 Federal Register / Vol. 69, No. 168 / Tuesday, August 31, 2004 / Notices

SUMMARY: Notice is hereby given that a Environmental Protection Agency, Portsmouth, NH, Bar Harbor, ME or any petition has been received from the Region 5 WN–16J, 77 West Jackson other New England port. Inclusion of State of Ohio for a determination by the Blvd, Chicago, Illinois 60604. these restrictive provisions in an Administrator of Region 5 that there is Dated: August 23, 2004. otherwise routine agreement raises a reasonable availability of adequate Bharat Mathur, serious concerns under section 10(d) of facilities for the safe and sanitary Acting Regional Administrator, Region 5. the Shipping Act, 46 U.S,C. app. removal and treatment of sewage from 1709(d). Section 10(d)provides, as [FR Doc. 04–19819 Filed 8–30–04; 8:45 am] all vessels on its waters of Lake Erie. pertinent: BILLING CODE 6560–50–P SUPPLEMENTARY INFORMATION: On June (1) No common carrier, ocean 23, 2004, the State of Ohio, Department transportation intermediary, or marine terminal operator may fail to establish, of Natural Resources, submitted a FEDERAL MARITIME COMMISSION petition requesting the EPA to declare observe, and enforce just and reasonable the Ohio waters of Lake Erie a No [Docket No. 04 –10] regulations and practices relating to or Discharge Zone under section 312(f)(3) connected with receiving, handling, of the Clean Water Act (33 U.S.C. Agreement No. 201158; Docking and storing, or delivering property. 1322(f)(3) and 40 CFR 140.4(a). Section Lease Agreement by and Between City (2) No marine terminal operator may 312(f)(3) states that ‘‘After the effective of Portland, Maine and Scotia Prince agree with another marine terminal date of the initial standards and Cruises Limited; Order of Investigation operator or with a common carrier to regulations promulgated under this and Hearing boycott, or unreasonably discriminate in the provision of terminal services to, section, if any State determines that the Agreement No. 201158 is a ‘‘docking any common carrier or ocean tramp. protection and enhancement of the and lease agreement’’ between the city (3) The prohibitions in subsections quality of some or all of the waters of Portland, Maine (‘‘Portland’’), a (b)(10) and (13)of this section apply to within such State require greater municipal corporation organized under environmental protection, such State marine terminal operators. the laws of Maine, and Scotia Prince (4) No marine terminal operator may may completely prohibit the discharge Cruises Limited (‘‘Scotia Prince’’), a from all vessels of any sewage, whether give any undue or unreasonable Bermuda corporation. Under the preference or advantage or impose any treated or not, into such waters, except Agreement, effective this date, Scotia that no prohibition shall apply until the undue or unreasonable prejudice or Prince leases certain docking and disadvantage with respect to any Administrator determines that adequate terminal facilities from Portland for facilities for the safe and sanitary person. purposes of operating a daily passenger The restrictions on competitive removal and treatment of sewage from and passenger vehicle service between all vessels are reasonably available for service at Portland may also contravene Portland and Yarmouth, Nova Scotia. section 10(b)(10), made applicable to such waters to which the prohibition Ordinarily, a docking and lease marine terminal operators by section would apply.’’ agreement would be classified as a 10(d)(3), which makes it unlawful to The petition states that there are ‘‘marine terminal facilities agreement’’ ‘‘unreasonably refuse to deal or 81,371 licensed watercraft in the exempt by regulation from the filing and negotiate.’’ counties bordering Lake Erie with 22% waiting period requirements of section 5 of the motorized boat users having of the Shipping Act of 1984, as amended Background either a portable or permanent toilet on (‘‘Shipping Act’’), 46 U.S.C. app. § 1704. Scotia Prince’s service to Portland is board and that approximately 353 See 46 CFR § 535.311. Agreement No. provided by the M/V Scotia Prince, a marinas are located with access to the 201158, however, contains exclusive 485 foot cruise vessel which lake. Of these, 121 marinas have use and non-compete provisions which accommodates approximately 1200 pumpout and/or dump stations for cause it to be classified as a cooperative passengers and 200 vehicles. The Scotia vessel sewage. A listing of these working agreement under section 4(b)(2) Prince, which was extensively facilities and their location has been of the Act, 46 U.S. app. 1705(b)(2). renovated in 2003, offers passengers submitted with the petition. In addition, Specifically, in sections 15 and 16 of the restaurant dining, a casino, a cafe´ and there are over 700 shoreline public Agreement, Portland has agreed not to bars, live entertainment, duty free restrooms available at public boat grant to any other operator permission shopping, a skydeck, and a massage and launches, docks and parks. Also, there to use its terminal premises for beauty spa, among other amenities. are nine ports with 35 commercial passenger or passenger vehicle service Overnight berths for 1,054 are provided docking facilities with no pumpout to or from Portland during Scotia in 174 cabins and staterooms. stations. However, the petition states 1 Prince’s scheduled season. In return, The Scotia Prince operates on a daily that these ports are serviced by private Scotia Prince has agreed not to operate basis carrying passengers and passenger septage tanker trucks. Once the Regional or participate in the operation of any vehicles between Portland and Administrator determines that adequate competitive passenger or passenger Yarmouth in southern Nova Scotia. The facilities are available, the State of Ohio vehicle service operating between any vessel departs Portland each evening, has the authority pursuant to section New England port and any port in Nova sails overnight and arrives at Yarmouth 312(f)(3) of the Clean Water Act and 40 Scotia. the next morning, eleven hours later. CFR 140.4(a) to completely prohibit the The effect of sections 15 and 16 of the After an hour in port to disembark and discharge of sewage, whether treated or agreement is to grant Scotia Prince a embark passengers and vehicles, the not, from all vessels into the waters of monopoly on passenger and passenger Scotia Prince sails for Portland, arriving Lake Erie under its jurisdiction. vehicle service between Portland, Maine in the early evening. Approximately Comments and views regarding this and all ports in Nova Scotia, including 153,000 passengers were boarded in petition, pending a determination by the Yarmouth. At the same time, Portland is 2003.2 Regional Administrator, may be filed protected from possible competition within 30 days of publication of this from Scotia Prince at nearby 2 Scotia Prince Cruises is separately regulated by notice. These should be addressed to the Commission as a passenger vessel operator Irvin J. Dzikowski P.E. at U.S. 1 Approximately May 1–October 31. under 46 CFR part 540.

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Portland is a municipal corporation As we have recognized, however, the Now Therefore, It Is Ordered that, which operates the Port of Portland Shipping Act of 1984, like the Shipping pursuant to sections 10(b)(10),10(d)(1)– under the authority and control of the Act, 1916, does ‘‘not forbid all (4), 11, and 13 of the Shipping Act, 46 Portland City Council. Portland has preferential or prejudicial treatment; U.S.C. app. 1709(b)(10), 1709(d)(1)–(4), recently undertaken to construct a new only that which is undue or 1710, and 1712, an investigation is ‘‘International Passenger and Ferry unreasonable.’’ Id., quoting A.P. St. hereby instituted to determine: Terminal’’ and has committed $17 Philip v. Atlantic Land & Improvement (1) Whether the Port of Portland and/ million dollars of public money to do Co. et al, 13 F.M.C. 167, 174 (1969). or Scotia Prince Cruises, alone or in so. It is the intention of the parties to After discussing the decision in conjunction with one another, have relocate Scotia Prince’s operation to the Agreement No. T–2598, 17 F.M.C. 286 violated sections 10(b)(10) and 10(d)(3) new terminal and to continue to apply (1974), where the parties successfully of the Shipping Act by entering into an the exclusive use provisions in sections justified an exclusive terminal and agreement whereby the Port of Portland 15 and 16, applicable to all terminal stevedoring arrangement, we held in unreasonably refuses to deal or facilities in Portland, after the Petchem, supra: negotiate with other providers of relocation.3 passenger and passenger vehicle In sum, the appropriate standard for In response to the Federal Register judging exclusive terminal arrangements transportation; publication of Agreement No. 201158, under the Shipping Acts is a synthesis of the (2) Whether the Port of Portland and/ Bay Ferries Limited (‘‘Bay Ferries’’) St. Philip and Agreement T–2598 decisions. or Scotia Prince Cruises, alone or in submitted comments objecting to certain Such arrangements are generally undesirable conjunction with one another, have provisions of the agreement, specifically and, in the absence of justification by their violated sections 10(b)(10) and 10(d)(3) sections 15 and 16. Bay Ferries is a proponents, may be unlawful under the of the Shipping Act by entering into an Canadian corporation, headquartered in Shipping Acts. However, in certain agreement whereby Scotia Prince Charlottetown, Prince Edward Island, circumstances, such arrangements may be Cruises unreasonably refuses to deal or which provides transportation of necessary to provide adequate and consistent negotiate with ports in New England passengers and passenger vehicles service to a port’s carriers or shippers, to other than Portland; ensure attractive prices for such services and between Bar Harbor, Maine, and generally to advance the port’s economic (3) Whether the Port of Portland has Yarmouth, Nova Scotia. Bay Ferries’ well-being. Id., at 990. violated section 10 (d)(1) of the service is provided by ‘‘The Cat,’’ a 300 Shipping Act by failing to establish, foot, high speed catamaran which While an exclusive arrangement may observe and enforce just and reasonable accommodates 875 passengers and 250 be justified under appropriate regulations and practices relating to or vehicles, including busses and circumstances, we noted with approval connected with receiving, handling, oversized vehicles. The Cat has no the ALJ’s affirmation that ‘‘the greater storing or delivering property; berths or cabins and offers relatively the degree of preference or monopoly, (4) Whether the Port of Portland and modest amenities. It makes the crossing the greater the evidentiary burden of Scotia Prince Cruises have violated from Bar Harbor to Yarmouth in about justification.’’ All Marine Moorings v. section 10(d)(2) of the Shipping Act by three hours, including port time. ITO Corp. of Baltimore, 27 S.R.R. 539, agreeing to boycott or unreasonably Bay Ferries has expressed its desire to 545 (1996). discriminate in the provision of provide passenger and passenger A refusal ‘‘to deal or negotiate’’ is, in terminal services to a common carrier; vehicle service between Portland and and of itself, not a violation of the (5) Whether the Port of Portland has Yarmouth, has met with Portland Shipping Act. We must determine violated section 10(d)(4) of the Shipping officials, and has indicated it is whether the refusal was unreasonable or Act by providing Scotia Prince Cruises prepared to introduce service utilizing whether it may have been justified by with an undue and unreasonable its existing catamaran with an particular circumstances in effect. In preference or advantage; intermediary call at Bar Harbor. Bay (6) Whether, in the event violations of Petchem, Inc. v. Federal Maritime Ferries anticipates providing service sections 10(b) and 10(d) of the Shipping Commission, 853 F.2d 558, 563 (D.C. between Portland and Yarmouth, with Act are found, civil penalties should be Cir. 1988), the Court of Appeals an intermediary call at Bar Harbor, in assessed against the Port of Portland and recognized that ‘‘[t]he Shipping Act 4.5 hours. Scotia Prince Cruises and, if so, in what contemplates the existence of Discussion amount; and permissible preferences or prejudices.’’ (7) Whether, in the event such Exclusive arrangements which The Commission’s analysis in Seacon violations are found, the Port of foreclose competition, such as those Terminals, Inc. v. Port of Seattle, 26 Portland and Scotia Prince Cruises created by sections 15 and 16 of S.R.R 886 (1993), indicates that whether should be ordered to cease and desist Agreement No. 201158, have been a marine terminal operator gave good from practices and agreements which considered in a number of Commission faith consideration to an entity’s are in violation of sections 10(b)(10) and decisions and are generally viewed as proposal or efforts at negotiation is 10(d)(1)–(4) of the Shipping Act. contrary to this nation’s pro-competitive central to determining whether a refusal It Is Further Ordered, that the Port of policies. In Petchem, Inc. v. Canaveral to deal or negotiate was reasonable. Portland and Scotia Prince Cruises Port Authority, 23 S.R.R. 974, 988 In view of the above, an evidentiary Limited are designated as respondents (1986), we stated: investigation is necessary to determine in this proceeding; The exclusive arrangement between the whether the City of Portland and/or It Is Further Ordered, that a public Port Authority and Hvide is prima facie Scotia Prince Cruises is in violation of hearing be held in this proceeding and unreasonable because it is contrary to the sections 10(b)(10) and 10(d)(1)–(4) of the that these matters be assigned for general policies of the United States favoring Shipping Act by entering into and hearing before an Administrative Law competition, which fact obligates operating under a restrictive working Judge (‘‘ALJ’’) of the Commission’s Respondents to justify the arrangement. arrangement which negatively impacts Office of Administrative Law Judges at competition for passenger and passenger a date and place to be hereafter 3 Docking and Lease Extension #2 between Portland and Scotia Prince Cruises Limited, p. 2, vessel service in the trade between determined by the ALJ in compliance January 3, 2004. Portland and Nova Scotia. with Rule 61 of the Commission’s Rules

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of Practice and Procedure, 46 CFR FEDERAL RESERVE SYSTEM regarding appraisal of fair annual 502.61. The hearing shall include oral parking rate per space for standard level testimony and cross-examination in the Sunshine Act Meeting user charge. discretion of the presiding ALJ only AGENCY HOLDING THE MEETING: Board of Public comments are particularly after consideration has been given by Governors of the Federal Reserve invited on: Whether this collection of the parties and the presiding ALJ to the System. information is necessary and whether it use of alternative forms of dispute will have practical utility; whether our TIME AND DATE: 11:30 a.m., Tuesday, estimate of the public burden of this resolution, including but not limited to September 7, 2004. mediation pursuant to 46 CFR 502.91, collection of information is accurate, PLACE: Marriner S. Eccles Federal and upon a proper showing that there and based on valid assumptions and Reserve Board Building, 20th and C are genuine issues of material fact that methodology; ways to enhance the Streets, NW., Washington, DC 20551. cannot be resolved on the basis of sworn quality, utility, and clarity of the statements, affidavits, depositions, or STATUS: Closed. information to be collected. MATTERS TO BE CONSIDERED: other documents or that the nature of DATES: Submit comments on or before: the matters in issue is such that an oral 1. Personnel actions (appointments, November 1, 2004. hearing and cross-examination are promotions, assignments, FOR FURTHER INFORMATION CONTACT: necessary for the development of an reassignments, and salary actions) Robert A. Yevoli, Policy and Analysis adequate record. involving individual Federal Reserve System employees. Division at telephone (202) 219–1403 or It Is Further Ordered, that the 2. Any items carried forward from a via email to [email protected]. Commission’s Bureau of Enforcement is previously announced meeting. ADDRESSES: Submit comments regarding designated a party to this proceeding. FOR FURTHER INFORMATION CONTACT: this burden estimate or any other aspect It Is Further Ordered, that notice of Michelle A. Smith, Director, Office of of this collection of information, this Order be published in the Federal Board Members; 202–452–2955. including suggestions for reducing this Register, and a copy be served on each SUPPLEMENTARY INFORMATION: You may burden to the Regulatory Secretariat (V), party of record. call 202–452–3206 beginning at General Services Administration, Room It Is Further Ordered, that other approximately 5 p.m. two business days 4035, 1800 F Street, NW., Washington, persons having an interest in before the meeting for a recorded DC 20405. Please cite OMB Control No. participating in this proceeding may file announcement of bank and bank 3090–0043, Appraisal of Fair Annual petitions for leave to intervene in holding company applications Parking Rate per Space for Standard accordance with Rule 72 of the scheduled for the meeting; or you may Level User Charge; GSA Form 3357, in all correspondence. Commission’s Rules of Practice and contact the Board’s Web site at http:// Procedure, 46 CFR 502.72. www.federalreserve.gov for an electronic SUPPLEMENTARY INFORMATION: announcement that not only lists It Is Further Ordered, that all further applications, but also indicates A. Purpose notices, orders, and/or decisions issued procedural and other information about GSA Form 3357 is needed by GSA by or on behalf of the Commission in the meeting. this proceeding, including notice of the contract and staff appraisers who use Board of Governors of the Federal Reserve the form for estimating parking rates time and place of hearing or prehearing System, August 27, 2004. conference, shall be served on each assessed on Federal agencies occupying Robert deV. Frierson, space in GSA owned or controlled party of record; Deputy Secretary of the Board. buildings. It Is Further Ordered, that all [FR Doc. 04–19986 Filed 8–27–04; 3:53 pm] B. Annual Reporting Burden documents submitted by any party of BILLING CODE 6210–01–S record in this proceeding shall be Respondents: 260 directed to the Secretary, Federal Responses Per Respondent: 5 Maritime Commission, Washington, DC GENERAL SERVICES Total Responses: 1300 20573–0001, in accordance with Rule ADMINISTRATION 118 of the Commission’s Rules of Hours Per Response: 1.6 Practice and Procedure, 46 CFR 502.118, OMB Control No. 3090–0043 Total Burden Hours: 2,080 and shall be served on each party of Information Collection; Appraisal of OBTAINING COPIES OF record. Fair Annual Parking Rate per Space for PROPOSALS: Requesters may obtain a Finally, It Is Ordered, that in Standard Level User Charge; GSA copy of the information collection accordance with Rule 61 of the Form 3357 documents from the General Services Commission’s Rules of Practice and Administration, Regulatory Secretariat AGENCY: Public Buildings Service, GSA. Procedure, 46 CFR 502.61, the initial (V), 1800 F Street, NW., Room 4035, decision of the presiding ALJ shall be ACTION: Notice of request for comments Washington, DC 20405, telephone (202) issued by August 23, 2005, and the final regarding a renewal to an existing OMB 208–7312. Please cite OMB Control No. decision of the Commission shall be clearance. 3090–0043, Appraisal of Fair Annual issued by December 21, 2005. Parking Rate Per Space for Standard SUMMARY: Under the provisions of the Level User Charge; GSA Form 3357, in By the Commission. Paperwork Reduction Act of 1995 (44 all correspondence. Bryant L. VanBrakle, U.S.C. Chapter 35), the General Services Administration will be submitting to the Dated: August 25, 2004 Secretary. Office of Management and Budget Michael W. Carleton, [FR Doc. 04–19773 Filed 8–30–04; 8:45 am] (OMB) a request to review and approve Chief Information Officer. BILLING CODE 6730–01–P a renewal of a currently approved [FR Doc. 04–19827 Filed 8–30–04; 8:45 am] information collection requirement BILLING CODE 6820–23–S

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