2016-20647. Update of Existing and Addition of New User Fees

AGENCY:

Federal Maritime Commission.

ACTION:

Final rule.

SUMMARY:

The Federal Maritime Commission (Commission) is amending its user fees to more accurately align fees with the costs associated with each service provided by the Commission. Specifically, the Commission is increasing fees for: Filing complaints and certain petitions; records searches, document copying, and admissions to practice; paper filing of ocean transportation intermediary (OTI) applications; filing applications for special permission; and filing agreements.

The Commission is also lowering fees for: Reviewing Freedom of Information Act (FOIA) requests; revising clerical errors on service contracts; revising clerical errors on non-vessel-operating common carrier (NVOCC) service arrangements; and Commission services to passenger vessel operators (PVOs).

In addition, the Commission is repealing four existing fees for: Adding interested parties to a specific docket mailing list; the Regulated Persons Index database; database reports on Effective Carrier Agreements; and filing petitions for rulemaking, and adding a new fee for requests for expedited review of an agreement filing.

DATES:

Effective October 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001. Phone: [phone]. Email: [e-mail].

SUPPLEMENTARY INFORMATION:

The Commission's current user fees are based on an assessment of fiscal year 2004 costs and have not been updated since 2005.^[1] Consequently, many of the current user fees no longer represent the Commission's actual costs for providing services. The Commission is adjusting its user fees based on fiscal year 2015 costs assessed through a new methodology for calculating costs for services provided by the Commission.

The Independent Offices Appropriation Act of 1952 (IOAA), 31 U.S.C. 9701, authorizes agencies to establish charges (user fees) for services and benefits that it provides to specific recipients. Under the IOAA, charges must be fair and based on the costs to the Government, the value of the service or thing to the recipient, the public policy or interest served, and other relevant facts. The IOAA also provides that regulations implementing user fees are subject to policies prescribed by the President, which are currently set forth in OMB Circular A-25, User Charges (revised July 8, 1993).

OMB Circular A-25 requires agencies to conduct a periodic reassessment of costs and, if necessary, adjust or establish new fees. Under OMB Circular A-25, fees should be established for Government-provided services that confer benefits on identifiable recipients over and above those benefits received by the general public. OMB Circular A-25 also provides that agencies should determine or estimate costs based on the best available records in the agency, and that cost computations must cover the direct and indirect costs to the agency providing the activity.

On March 21, 2016, the Commission issued an Advanced Notice of Proposed Rulemaking (ANPRM), 81 FR 15002, seeking public comment and did not receive any comments. The Commission again sought public comment by issuing a Notice of Proposed Rulemaking (NPRM), 81 FR 33637, on May 27, 2016. The Commission received two comments in response to the NPRM, one from an individual and one from the World Shipping Council.

The individual commenter requested that the Commission eliminate 46 CFR 503.50(c)(1)(ii) and (c)(3)(iii) to avoid ambiguity, improve clarity, and conform to typical federal agency practice. The commenter claims that the wording is ambiguous because the proposed language states that the minimum charge for a records search is $27, but the Commission does not charge a fee for two hours of search for noncommercial requesters. The Commission provides an exception to the minimum search fee for educational and noncommercial scientific institution requesters and for representatives of the news media requesters because the Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(4)(A)(ii), precludes agencies from imposing a search fee when the requester is not seeking documents for a commercial use. The commenter also argues that there is ambiguity in the proposed language because there are existing provisions where the Commission does not charge a fee at all if the processing of the fee were likely to equal or exceed the fee itself. The Commission provides this de minimus exception, in accordance with 5 U.S.C. 552(a)(A)(iv)(I). While the Commission does not consider § 503.50(c)(1)(ii) and (c)(3)(iii) as proposed in the NPRM to be confusing, we are adding the phrase “Unless an exception provided in § 503.50(b)(2) applies” to make the rule unequivocally clear.

The individual commenter requested that the Commission not adopt certain portions of proposed § 503.50(c)(3)(i) and (ii) because they do not reflect OMB FOIA Fee Guidelines. Similarly, the commenter requested that § 503.69(b)(1) not be modified because the Commission did not provide a rationale for the change in duplication fees and there is no evidence that there has been any examination of the actual per page direct cost of xerographic duplication.

The individual also commented that the basis for the rule change in § 503.69(b)(1) is unclear and that it is unclear where the Regulated Persons Index is located on the Commission's Web site.

The World Shipping Council requests that the Commission provide detailed cost information for each service it provides and requests an additional 45-day comment period. The Commission believes transparency and public participation is essential in amending user fees and has afforded stakeholders two opportunities to comment on the proposed changes. Furthermore, the Commission provided a summary of the fee assessment methodology in both the ANPRM and NPRM. In addition, the Commission provided a detailed description of the methodology in the docket to this rulemaking, as well as a detailed fee index. In the interest of transparency, the Commission will place the cost analysis for each service in the docket. The Commission, however, believes that ample time and information has been provided for public comment and, therefore, will not go forward with a third comment period.

Fee Adjustments

The adjustments will allow some user fees to remain unchanged; increase, reduce, or delete other fees; and add one new fee. The Commission is increasing fees to reflect increases in salary and indirect (overhead) costs. For some services, an increase in processing or review time may account for all or part of the increase in the amount of the fees. For other services, fees are lower than current fees due to an overall reduced cost to provide those services.

The Commission assesses nominal processing fees for services related to the filing of complaints and certain petitions; various public information services, such as records searches, document copying, and admissions to practice; and filing applications for special permission. Due to an increase in the processing cost of these services, the Commission is adjusting upward these administrative fees based on an assessment of fiscal year 2015 costs. Similarly, the Commission is adjusting upward the user fees associated with agreements filed under 46 CFR part 535 because of the increase in reviewing and analyzing the agreement filings.

With respect to OTI license applications, the fees for electronic filing of license applications through the Commission's FMC-18 automated filing system are lower than the fees to file paper applications. The Commission first adopted lower fees in 2007 to promote the use of the electronic filing option by the public and to facilitate the transfer of OTI records from a paper-based format to a more convenient and accessible digital format.^[2] As intended, the majority of OTI applicants are using the automated system and paying the reduced fees. In fiscal year 2015, the total number of OTI applicants using the automated filing system at the reduced fees was 619, and the total number of OTI applicants filing their applications in paper format at the higher fees was 44. This program has been successful and the Commission is continuing to offer the lower fees for electronic filing at the current fee amounts.^[3]

The Commission is decreasing fees for the Commission's services to passenger vessel operators (PVOs) under 46 CFR part 540. These services include reviewing and processing the application for certification on performance; the supplemental application on performance for the addition or substitution of a vessel; the application for certification on casualty, and the supplemental application on casualty for the addition or substitution of a vessel.

For reviews of requests filed under FOIA, the Commission is lowering the fees due to the change in grade level of the professional staff that review FOIA requests. For revisions of clerical errors on service contracts, the Commission is lowering the fee due to the reduction in processing time.

The Commission is repealing the user fee for obtaining a copy of the Regulated Persons Index given that it is currently available on the Commission's Web site. (http://www2.fmc.gov/​oti/​) The Commission also proposes repealing the current fee assessed for adding an interested party to a specific docket mailing list under § 503.50(d), and the fee assessed under § 535.401(h) for obtaining a Commission agreement database report.

In addition, the Commission is repealing the user fee for filing petitions for rulemaking found in § 503.51(a). This aligns the Commission with the practice of other agencies, the vast majority of which do not impose a fee to file petitions for rulemaking. Repealing this user fee would also enhance access to the rulemaking process, thereby making it fairer and more open.

The Commission is also adding a new fee for processing requests for expedited review of an agreement under § 535.605, which allows filing parties to request that the 45-day waiting period be shortened to meet an operational urgency. The Commission believes that a fee for processing such requests is necessary to recoup the cost of publishing a separate Federal Register notice for expedited review. This new fee will be assessed in addition to the underlying agreement filing fee required by § 535.401(g).

Regulatory Analysis and Notices

Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., requires an agency to review final rules to assess their impact on small entities and prepare a final regulatory flexibility analysis (FRFA), unless the agency head determines that the regulatory action will not have a significant impact on a substantial number of small entities. The Chairman certified, in the NPRM, that the proposed rule would not have a significant economic impact on a substantial number of small entities. The adjusted user fees reflect the costs of specific Commission services for identifiable recipients. The economic impact of user fees on a small entity results from the entity requesting a particular service that requires payment of a fee for that service. The dollar amount of each user fee proposed in this rule is not substantial enough to have a significant economic impact on any entity subject to the user fee. On average, as weighted by the volume of fee assessments for fiscal year 2015, the total increase in user fees is below the rise in inflation and employment costs from the last assessment in fiscal year 2004. Furthermore, the Commission's regulations provide for a waiver or reduction of any fee in extraordinary situations. 46 CFR 503.42. The Chairman of the Commission, therefore, certifies that the final rule, will not have a significant economic impact on a substantial number of small entities.^[4]

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before making most requests for information if the agency is requesting information from more than ten persons. 44 U.S.C. 3507. This final rule does not contain any collections of information, as defined by 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).

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

46 CFR Part 502

• Administrative practice and procedure
• Claims
• Equal access to justice
• Investigations
• Lawyers
• Maritime carriers
• Penalties
• Reporting and recordkeeping requirements

46 CFR Part 503

• Classified information
• Freedom of Information
• Privacy
• Sunshine Act

46 CFR Part 515

• Exports
• Freight forwarders
• Non-vessel-operating common carriers
• Ocean transportation intermediaries
• Licensing requirements
• Financial responsibility requirements
• Reporting and recordkeeping requirements

46 CFR Part 520

• Common carrier
• Freight
• Intermodal transportation
• Maritime carriers
• Reporting and recordkeeping requirements

46 CFR Part 530

• Freight
• Maritime carriers
• Report and recordkeeping requirements

46 CFR Part 531

• Freight
• Maritime carriers
• Report and recordkeeping requirements

46 CFR Part 535

• Administrative practice and procedure
• Maritime carriers
• Reporting and recordkeeping requirements

46 CFR Part 540

• Insurance
• Maritime carriers
• Penalties
• Reporting and recordkeeping requirements
• Surety bonds

46 CFR Part 550

• Administrative practice and procedure
• Maritime carriers

46 CFR Part 555

• Administrative practice and procedure
• Investigations
• Maritime carriers

46 CFR Part 560

• Administrative practice and procedure
• Maritime carriers

For the reasons set forth above, the Federal Maritime Commission amends 46 CFR parts 502, 503, 515, 520, 530, 535, 540, 550, 555, and 560 as follows:

PART 502—RULES OF PRACTICE AND PROCEDURE

1. The authority citation for Part 502 continues to read as follows:

Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 571-584; 591-596; 18 U.S.C. 207; 28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. 305, 40103-40104, 40304, 40306, 40501-40503, 40701-40706, 41101-41109, 41301-41309, 44101-44106; 5 CFR part 2635.

Subpart D—Rulemaking

§ 502.51

[Amended]

2. In § 502.51, amend paragraph (a) by removing “§ 502.74” and adding in its place “§ 502.69” and removing the fourth sentence.

Subpart E—Proceedings; Pleadings; Motions; Replies

3. In § 502.62, paragraph (a)(6) is revised to read as follows:

§ 502.62

Private party complaints for formal adjudication.

(a) * * *

(6) Filing fee: The complaint must be accompanied by remittance of a $289 filing fee.

* * * * *

4. In § 502.75, revise paragraph (a)(3) to read as follows:

§ 502.75

Declaratory orders and fee.

(a) * * *

(3) Petitions must be accompanied by remittance of a $289 filing fee.

* * * * *

5. In § 502.76, revise paragraph (b) to read as follows:

§ 502.76

Petitions-general and fee.

* * * * *

(b) Petitions must be accompanied by remittance of a $289 filing fee. [Rule 76.]

Subpart K—Shortened Procedure

6. The last sentence of § 502.182 is revised to read as follows:

§ 502.182

Complaint and memorandum of facts and arguments and filing fee.

* * * The complaint must be accompanied by remittance of a $289 filing fee. [Rule 182.]

Subpart Q—Refund or Waiver of Freight Charges

7. In § 502.271, revise paragraph (d)(5) to read as follows:

§ 502.271

Special docket application for permission to refund or waive freight charges.

* * * * *

(d) * * *

(5) Applications must be accompanied by remittance of a $117 filing fee.

* * * * *

Subpart S—Informal Procedure for Adjudication of Small Claims

8. The last sentence of § 502.304(b) is revised to read as follows:

§ 502.304

Procedure and filing fee.

* * * * *

(b) * * * Such claims must be accompanied by remittance of an $85 filing fee.

* * * * *

PART 503—PUBLIC INFORMATION

9. The authority citation for Part 503 is revised to read as follows:

Authority: 5 U.S.C. 331, 552, 552a, 552b, 553; 31 U.S.C. 9701; E.O. 13526 of January 5, 2010 75 FR 707, 3 CFR, 2010 Comp., p. 298, sections 5.1(a) and (b).

Subpart F—Fees

10. In § 503.50, paragraph (c)(1) introductory text, paragraphs (c)(1)(i) and (ii); the first sentence of paragraph (c)(2); paragraphs (c)(3)(i), (ii) and (iii); paragraph (c)(4); and paragraph (e) are revised to read as follows:

§ 503.50

Fees for services.

* * * * *

(c) * * *

(1) Records search (including electronic search) will be performed by Commission personnel at the following rates:

(i) Search will be performed by clerical/administrative personnel at a rate of $27 per hour and by professional/executive personnel at a rate of $57 per hour.

(ii) Unless an exception provided in paragraph (b)(2) of this section applies, the minimum charge for record search is $27.

(2) Charges for review of records to determine whether they are exempt from disclosure under § 503.33 must be assessed to recover full costs at the rate of $57 per hour. * * *

(3) * * *

(i) If performed by requesting party at the rate of ten cents per page (one side).

(ii) By Commission personnel, at the rate of ten cents per page (one side) plus $27 per hour.

(iii) Unless an exception provided in paragraph (b)(2) of this section applies, the minimum charge for copying is $5.

* * * * *

(4) The certification and validation (with Federal Maritime Commission seal) of documents filed with or issued by the Commission will be available at $84 for each certification.

* * * * *

(e) Applications for admission to practice before the Commission for persons not attorneys at law must be accompanied by a fee of $153 pursuant to § 502.27 of this chapter.

Subpart H—Access to Any Record of Identifiable Personal Information

11. In § 503.69, paragraphs (b)(1) and (2) are revised to read as follows:

§ 503.69

Fees.

* * * * *

(b) * * *

(1) The copying of records and documents will be available at the rate of ten cents per page (one side), limited to size 81/4″ x 14″ or smaller.

(2) The certification and validation (with Federal Maritime Commission seal) of documents filed with or issued by the Commission will be available at $84 for each certification.

* * * * *

PART 515—LICENSING, FINANCIAL RESPONSIBILITY REQUIREMENTS, AND GENERAL DUTIES FOR OCEAN TRANSPORTATION INTERMEDIARIES

12. The authority citation for Part 515 continues to read as follows:

Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 46 U.S.C. 305, 40102, 40104, 40501-40503, 40901-40904, 41101-41109, 41301-41302, 41305-41307; Pub. L. 105-383, 112 Stat. 3411; 21 U.S.C. 862.

Subpart A—General

13. In § 515.5, paragraphs (c)(2)(i) and (ii) are revised to read as follows:

§ 515.5

Forms and fees.

* * * * *

(c) * * *

(2) * * *

(i) Application for new OTI license as required by § 515.12(a): Automated filing $250; paper filing pursuant to waiver $1,055.

(ii) Application for change to OTI license or license transfer as required by § 515.20(a) and (b): Automated filing $125; paper filing pursuant to waiver $735.

Subpart D—Duties and Responsibilities of Ocean Transportation Intermediaries; Reports to Commission

15. The last sentence of § 515.34 is removed and the second sentence is revised to read as follows:

§ 515.34

Regulated Persons Index.

* * *

The database is available at no charge on the Commission's Web site at www.fmc.gov.

PART 520—CARRIER AUTOMATED TARIFFS

16. The authority citation for Part 520 continues to read as follows:

Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40101-40102, 40501-40503, 40701-40706, 41101-41109.

17. The last sentence of § 520.14 paragraph (c)(1) is revised to read as follows:

§ 520.14

Special permission.

* * * * *

(c) * * *

(1) * * * Every such application must be submitted to the Bureau of Trade Analysis and be accompanied by a filing fee of $299.

* * * * *

PART 530—SERVICE CONTRACTS

18. The authority citation for Part 530 continues to read as follows:

Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40301-40306, 40501-40503, 41307.

Subpart B—Filing Requirements

19. In § 530.10, paragraph (c) introductory text is revised to read as follows:

§ 530.10

Amendment, correction, cancellation, and electronic transmission errors.

* * * * *

(c) Corrections. Requests must be filed, in duplicate, with the Commission's Office of the Secretary within forty-five (45) days of the contract's filing with the Commission, accompanied by remittance of an $95 service fee, and must include:

* * * * *

PART 531—NVOCC SERVICE ARRANGEMENTS

20. The authority citation for Part 531 continues to read as follows:

Authority: 46 U.S.C. 40103.

21. In § 531.8 paragraph (b)(1) is revised to read as follows:

§ 531.8

Amendment, correction, cancellation, and electronic transmission errors.

* * * * *

(b) * * *

(1) Requests must be filed, in duplicate, with the Commission's Office of the Secretary within forty-five (45) days of the contract's filing with the Commission, accompanied by remittance of an $95 service fee.

* * * * *

PART 535—OCEAN COMMON CARRIER AND MARINE TERMINAL OPERATOR AGREEMENTS SUBJECT TO THE SHIPPING ACT OF 1984

22. The authority citation for Part 535 continues to read as follows:

Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40101-40104, 40301-40307, 40501-40503, 40901-40904, 41101-41109, 41301-41302, and 41305-41307.

Subpart D—Filing of Agreements

24. In § 535.401 paragraphs (g) and (h) are revised to read as follows:

§ 535.401

General requirements.

* * * * *

(g) Fees. The filing fee is $3,218 for new agreements and any agreement modifications requiring Commission review and action; $526 for agreements processed under delegated authority (for types of agreements that can be processed under delegated authority, see § 501.27(e) of this chapter); $303 for carrier exempt agreements; and $90 for terminal exempt agreements.

(h) The fee for a request for expedited review of an agreement pursuant to § 535.605 is $159. This fee must be paid in addition to the carrier agreement filing fee required by paragraph (g) of this section.

PART 540—PASSENGER VESSEL FINANCIAL RESPONSIBILITY

25. The authority citation for Part 540 continues to read as follows:

Authority: 5 U.S.C. 552, 553; 31 U.S.C. 9701; 46 U.S.C. 305, 44101-44106.

Subpart A—Proof of Financial Responsibility, Bonding and Certification of Financial Responsibility for Indemnification of Passengers for Nonperformance of Transportation

26. The last two sentences in § 540.4 paragraph (e) are revised to read as follows:

§ 540.4

Procedure for establishing financial responsibility.

* * * * *

(e) * * * An application for a Certificate (Performance), excluding an application for the addition or substitution of a vessel to the applicant's fleet, must be accompanied by a filing fee remittance of $2,284 An application for a Certificate (Performance) for the addition or substitution of a vessel to the applicant's fleet must be accompanied by a filing fee remittance of $1,224.

* * * * *

Subpart B—Proof of Financial Responsibility, Bonding and Certification of Financial Responsibility to Meet Liability Incurred for Death or Injury to Passengers or Other Persons on Voyages

27. The last two sentences in § 540.23 paragraph (b) are revised to read as follows:

§ 540.23

Procedure for establishing financial responsibility.

* * * * *

(b) * * * An application for a Certificate (Casualty), excluding an application for the addition or substitution of a vessel to the applicant's fleet, must be accompanied by a filing fee remittance of $1,085. An application for a Certificate (Casualty) for the addition or substitution of a vessel to the applicant's fleet must be accompanied by a filing fee remittance of $593.

* * * * *

PART 550—REGULATIONS TO ADJUST OR MEET CONDITIONS UNFAVORABLE TO SHIPPING IN THE FOREIGN TRADE OF THE UNITED STATES

28. The authority citation for Part 550 continues to read as follows:

Authority: 5 U.S.C. 553; 46 U.S.C. 301-307; sec. 19 (a)(2), (e), (f), (g), (h), (i), (j), (k) and (l) of the Merchant Marine Act, 1920, 46 U.S.C. 42101 and 42104-42109; and sec. 10002 of the Foreign Shipping Practices Act of 1988, 46 U.S.C. 42301-42307.

Subpart D—Petitions for Section 19 Relief

29. Revise § 550.402 to read as follows:

§ 550.402

Filing of petitions.

Except for petitions for rulemaking, all requests for relief from conditions unfavorable to shipping in the foreign trade must be by written petition. An original and fifteen copies of a petition for relief under the provisions of this part must be filed with the Secretary, Federal Maritime Commission, Washington, DC 20573. The petition must be accompanied by remittance of a $289 filing fee.

PART 555—ACTIONS TO ADDRESS ADVERSE CONDITIONS AFFECTING U.S.-FLAG CARRIERS THAT DO NOT EXIST FOR FOREIGN CARRIERS IN THE UNITED STATES

30. The authority citation for Part 555 continues to read as follows:

Authority: 5 U.S.C. 553; sec. 10002 of the Foreign Shipping Practices Act of 1988 (46 U.S.C. 42301-42307).

31. The last sentence in § 555.4 paragraph (a) is revised to read as follows:

§ 555.4

Petitions.

(a) * * * The petition must be accompanied by remittance of a $289 filing fee.

* * * * *

PART 560—ACTIONS TO ADDRESS CONDITIONS UNDULY IMPAIRING ACCESS OF U.S.-FLAG VESSELS TO OCEAN TRADE BETWEEN FOREIGN PORTS

32. The authority citation for Part 560 continues to read as follows:

Authority: 5 U.S.C. 553; secs. 13(b)(6), 15 and 17 of the Shipping Act of 1984, 46 U.S.C. 305, 40104, and 41108(d); sec. 10002 of the Foreign Shipping Practices Act of 1988 (46 U.S.C. 42301-42307).

33. The last sentence in § 560.3 paragraph (a)(2) is revised to read as follows:

§ 560.3

Petitions for relief.

(a) * * *

(2) * * * The petition must be accompanied by remittance of a $289 filing fee.

* * * * *

By the Commission.

Karen V. Gregory,

Secretary.

Footnotes

1.  The Commission established the fee for filing or updating OTI license applications electronically in 2007.

2.  FMC Docket No. 07-08, Optional Method of Filing Form FMC-18, Application for a License as an Ocean Transportation Intermediary, 72 FR 44976, 44977 (Aug. 10, 2007).

3.  While the automated filing system allows users to file their applications electronically, the automated system for processing the applications is still under development. The fees for the electronic filing of OTI applications will be addressed by the Commission when the entire FMC-18 automated system is complete and operational, and the costs of the system and its impact on the review of OTI applications can be quantified.

4.  In extraordinary situations, the Commission will accept requests for waivers or fee reductions. Such request must demonstrate that the waiver or reduction of a fee is in the best interest of the public, or that payment of a fee would impose an undue hardship.