[Federal Register Volume 63, Number 244 (Monday, December 21, 1998)]
[Proposed Rules]
[Pages 70368-70380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33701]
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FEDERAL MARITIME COMMISSION
46 CFR Parts 514 and 520
[Docket No. 98-29]
Carrier Automated Tariff Systems
AGENCY: Federal Maritime Commission.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: The Federal Maritime Commission proposes to add new
regulations establishing the requirements for carrier automated tariff
systems in accordance with the Shipping Act of 1984, as modified by the
Ocean Shipping Reform Act of 1998 and the Coast Guard Authorization Act
of 1998. At the same time, the Commission is repealing its current
rules regarding tariffs and service contracts at 46 CFR part 514.
DATES: Submit comments on or before January 20, 1999.
ADDRESSES: Address all comments concerning this proposed rule to:
Joseph C. Polking, Secretary, Federal Maritime Commission, 800 North
Capitol Street, N.W., Washington, D.C. 20573-0001.
FOR FURTHER INFORMATION CONTACT:
Thomas Panebianco, General Counsel, Federal Maritime Commission, 800
North Capitol Street, N.W., Washington, D.C. 20573-0001, (202) 523-5740
and
Bryant L. VanBrakle, Director, Bureau of Tariffs, Certification and
Licensing, 800 North Capitol Street, N.W., Washington, D.C. 20573-0001,
(202) 523-5796
SUPPLEMENTARY INFORMATION: The Ocean Shipping Reform Act of 1998
(``OSRA''), Pub. L. 105-258, 112 Stat. 1902, amends the Shipping Act of
1984 (46 U.S.C. app. sec. 1702 et seq.) (``1984 Act'') in several
areas, significantly altering the manner by which the United States
regulates international ocean shipping. One of the most noteworthy
changes is in the treatment of common carrier tariffs, the publications
which contain the rates and charges for their transportation services.
Currently, common carriers and conferences file their tariffs with the
Federal Maritime Commission's (``FMC'' or ``Commission'') Automated
Tariff Filing and Information System (``ATFI''). Under OSRA, carriers
no longer have to file with the Commission, but are required to publish
their rates in private, automated tariff systems. (Section 8(a)(1) of
the 1984 Act). These tariffs must be made available electronically to
any person, without limits on time, quantity, or other such limitation,
through appropriate access from remote locations, and a reasonable
charge may be assessed for such access, except for Federal agencies.
(Section 8(a)(2)). In addition, the Commission is charged with
prescribing the requirements for the ``accessibility and accuracy'' of
these automated tariff systems. The Commission also can prohibit the
use of such systems, if they fail to meet the requirements it
establishes. (Section 8(g)).
The Commission is, accordingly, proposing new regulations at 46 CFR
part 520, to implement the changes occasioned by OSRA. In addition, the
Commission is proposing to remove existing part 514, which deals mainly
with the filing of tariffs in ATFI.
In anticipation of the passage of OSRA, the Commission published a
notice of inquiry (``NOI'') in the Federal Register on July 2, 1998,
Docket No. 98-10, Inquiry Into Automated Tariff Filing Systems as
Proposed by the Pending Ocean Shipping Reform Act of 1998. The
Commission sought comments from the ocean transportation industry and
the general public on how best to establish requirements for carriers'
automated tariff systems. To this end, the Commission proposed fifteen
questions to better focus discussion on the proper areas. The
Commission subsequently received comments from eighteen commenters,
representing all segments of the ocean transportation industry. Several
of these commenters were trade associations representing substantial
memberships.
These comments proved useful to the Commission in preparing this
proposed rule. Although there was no unanimity among commenters, there
was general consensus on some issues. For example, most commenters
agreed that tariff information should be retained for 5 years and that
there should be some standardization of tariff information. Moreover,
some comments enabled the Commission to better focus its efforts in one
direction or another.
One of the primary functions of the publication of tariffs is to
provide the shipping public with accessible and reliable information on
the price and service options to move particular commodities from point
A to point B. Consistent with OSRA's common carriage principles,
shippers should be able to use this information to compare competing
carriers' offerings and to assess whether they are being unreasonably
discriminated against vis-a-vis their competitors. In addition, public
tariff information enables carriers to monitor their competitors and to
gain a complete picture of the marketplace in a particular trade.
An equally important function of tariff publication is to permit
the Commission to monitor the rate activity of carriers and
conferences. In light of
[[Page 70369]]
the fact that OSRA continues to grant antitrust immunity for collective
ratemaking, the ability to monitor collectively-established rates
remains particularly important. The Commission also needs to be able to
monitor carrier rate activity to ensure that the prohibited acts in
section 10 of the 1984 Act are not violated. In this regard, the
Commission will always need a historical record of rate activity,
commensurate with the five year statute of limitations in the 1984 Act.
In addition, the ability to monitor the rate activity of controlled
carriers is crucial to the Commission's enforcement of the controlled
carrier provisions of the 1984 Act.
The proposed rule is an attempt to reconcile these basic purposes
of tariff publication with the relative discretion Congress has granted
carriers to develop their own automated tariff systems. The report of
the Senate Committee on Commerce, Science, and Transportation, S. Rep.
No. 61, 105th Cong., 1st Sess. (1997) (``Committee Report''), is
instructive in this regard. The Committee noted that innovative private
sector approaches, such as World Wide Web pages, should be encouraged,
stating that common carriers should be free to develop their own means
of tariff publication. Committee Report at 23. Although the Committee
reiterated that there should be no government restraints on the design
of a private tariff publication system, it also stated that such
systems must assure the integrity of the common carrier's tariff and
the tariff system as a whole and provide the appropriate level of
public access to tariff information. Id. The Committee also stated that
tariff information should be ``simplified and standardized.'' Id. The
Committee further noted that the Commission will retain its authority
to suspend or prohibit the use of tariffs found to violate the 1984 Act
or other United States shipping laws. Id at 22-23.
The proposed rule attempts to meld the various Congressional
directives on OSRA and its legislative history to produce tariff
publication requirements that fully comport with the letter and spirit
of OSRA. It should enable common carriers to present their pricing
information in a variety of ways, while still allowing shippers and the
Commission meaningful access to accurate information. A specific
section-by-section analysis of the proposed rule follows.
Section 520.1 Scope and Purpose
This section notes that part 520 contains the regulations governing
the publication of tariffs in automated systems by common carriers and
conferences in the United States waterborne foreign commerce, pursuant
to the changes occasioned by OSRA. In addition, this section sets forth
the four basic purposes of the part, to enable: (1) Shippers and the
public to obtain reliable and useful rate information; (2) carriers and
conferences to meet their publication requirements; (3) the FMC to
ensure that tariffs are accurate and accessible and to protect against
section 10 violations; and (4) the FMC to monitor activities of
controlled carriers subject to section 9 of the 1984 Act.
Section 520.2 Definitions
This section contains many of the definitions that currently appear
at 46 CFR 514.2. Some of these have been updated to reflect changes to
the 1984 Act's definitions by OSRA. These include: ``common carrier,''
``controlled carrier,'' ``forest products,'' ``loyalty contract,''
``ocean transportation intermediary,'' and ``shipper.'' In addition,
new definitions are proposed for ``Act,'' ``conference,'' ``effective
date,'' ``Harmonized System,'' ``publication date,'' ``retrieval,''
``tariff rate item (``TRI''),'' ``tariff number,'' and ``TRI number.''
Modifications have also been made to some of the definitions that have
been carried forward so that they comport with changes made elsewhere
in the proposed rule.
Section 520.3 Publication Responsibilities
This section sets forth the basic requirement that all common
carriers and conferences must publish their tariffs in automated tariff
systems, but also notes that they may use agents to meet this
responsibility. In addition, proposed Sec. 520.3(b) requires
conferences to publish in their systems independent action and open
rates offered by their members.
Section 520.3(c) requires that certain basic information must be
provided to the Commission prior to a carrier or conference initiating
service under an automated tariff. This information includes the
organization's legal name, trade name, address, contact, tariff
location, publisher, and type of entity. This information is necessary
to enable the Commission to meet its responsibilities under OSRA, and
must be updated whenever any changes occur. Carriers and conferences
can provide this information by submitting Form FMC-1, or by entering
the information through an interactive program on the Commission's home
page.
Section 520.3(d) provides that the Commission will publish on its
website a listing of the locations of all carrier and conference
tariffs. This should enable the general public to find a particular
carrier's tariff by simply visiting an all-inclusive site. The
Commission specifically requests comments on its proposal to publish
this list on the website.
Section 520.4 Tariff Contents
Section 520.4(a) sets forth the general contents for all tariffs
published pursuant to this part. This provision does not prescribe a
particular design or structure, but does prescribe what must be
included in tariffs. The first six items are specifically required by
section 8(a)(1) of the 1984 Act. In addition, all tariffs are required
to contain an organization record, a tariff record, and tariff rules,
while commodity tariffs must also contain commodity descriptions and
tariff rate items. Carriers and conferences are otherwise free to
structure their tariff publications as they see fit.
The organization record contains basic information about the
organization which is publishing the tariff. This includes its: name,
assigned number, agreement number, type, address and phone number, and
names of affiliates to conferences or agreements. An organization will
have only one organization record, which it can use with the various
tariffs it may publish.
The tariff record contains information unique to each tariff and
includes: Organization name and number, tariff number, tariff title,
tariff type, origin and destination scope, contact person and address,
and any default measurements and currency units.
Section 520.4(c) does not require tariffs to contain a lengthy set
of prescribed rules with very specific contents. Instead, carriers or
conferences must simply publish any rule that affects the application
of their tariffs. If they adopt rules addressing certain specified
subject areas, they are only required to use specific titles for the
rules and are free to draft their particular contents in whatever
manner they deem appropriate.
Section 520.4(d) requires each separate commodity in a tariff to
have a corresponding and unique 10-digit numeric code. Although tariff
publishers can use any coding pattern they choose, they are encouraged
to use the United States Harmonized Tariff Schedule. In addition,
publications must contain a commodity index representing the
commodities covered by the tariff.
A tariff rate item (``TRI'') is the single freight rate in effect
for the transportation of cargo under a specified
[[Page 70370]]
set of transportation conditions. Section 520.4(e) sets forth the basic
requirements for what must be contained in a TRI. In addition,
Sec. 520.4 allows publishers to define and create location groups and
requires inland rate tables if carriers provide intermodal
transportation at combination rates. Lastly, this section requires
conference tariffs to contain specific instructions concerning shipper
requests and complaints.
Section 520.5 Standard Tariff Terminology
This section states that the Standard Terminology Codes set forth
in appendix A shall be used by tariff publishers. These codes reflect
existing industry usage and merely carry forward a standard language
for certain items, consistent with Congress' direction that tariff
information should be simplified and standardized. Committee Report at
18. The Commission does not believe that this list is necessarily all-
inclusive or will remain static, and will, therefore, entertain
requests for changes on a case-by-case basis. If the Commission adopts
a suggested change, it will provide notice on its web page.
Section 520.5(b) provides that tariffs must use points or locations
that appear in the National Imagery and Mapping Agency gazetteer and
that ports used should appear in the World Port Index.
Section 520.6 Retrieval of Information
This section sets forth the requirements and procedures by which
retrievers can obtain information from a tariff publication. These
requirements are proposed by the Commission in order to meet OSRA's
requirement that tariff information be accessible to the public and
provide, we believe, a minimal but reasonable degree of accessibility.
As an initial matter, tariffs must present users with a tariff
selection option or the capability to select an object group, e.g.
rules. Tariffs must also provide the capability to search for a
commodity by text search or number search. Retrievers should also be
able to enter all 14 numbers to directly access a specific tariff rate
item.
If retrievers select a specific object group, they should be
presented with a list of objects within the group or a search mechanism
to locate an object within the group. In addition, Sec. 520.5(e)
provides that the minimum rate calculation capability for tariffs will
be a calculated basic ocean freight (``BOF'') (which would include
certain adjustments for minimum quantities, quantity discounts, etc.)
and a list of all assessorial charges that apply to the retriever-
entered parameters. This should enable shippers to ascertain the true
cost of their transportation movement, without requiring carriers to
calculate a ``bottom-line'' freight rate. While ``bottom-line''
calculations would certainly be a desirable feature of any public
tariff system, and have been a requirement in ATFI, the Commission
believes that requiring such capabilities would not be consistent with
Congressional intent.
Section 520.7 Tariff Limitations
This section contains certain proscriptions on tariffs not
otherwise contained in the rule. As a general matter, tariffs must be
clear and definite, in English, must not cross-reference other tariffs,
nor be duplicative. In addition, carriers and conferences must inform
BTCL whenever an existing tariff is canceled.
This section also contains various proscriptions that were
previously contained in tariff rules and are deemed still to be
relevant. These include subsections addressing: rate applicability,
minimum quantity rates, green salted hides, conferences, overcharge
claims, and returned cargo.
Section 520.8 Effective Dates
This section restates the basic statutory proscription that new or
initial rates or rates resulting in an increased cost to a shipper may
not become effective before 30 calendar days after publication.
However, rates for the transportation of United States Department of
Defense cargo may be effective upon publication as may changes in rates
that result in a decrease in cost to a shipper. In addition, the
following amendments are permitted upon publication: (1) Those
resulting in no change in cost to a shipper; (2) cancellation of a
tariff due to cessation of service; (3) addition of certain ports or
points to existing groupings; and (4) changes in charges over which the
carrier has no control.
Section 520.9 Access to Tariffs
This section sets forth the technical requirements for providing
access to automated tariffs systems. First, carriers and conferences
must provide public access by way of a personal computer by either
dial-up connection via public switched telephone networks (``PSTN'') or
the Internet. Various requirements relating to each type of
connectivity are presented. FMC access must also be via dial-up
connection over PSTNs or a connection over the Internet. In addition,
any recurring fees shall be the responsibility of the publisher, but
the Commission will be responsible for long-haul charges for PSTN calls
initiated by it.
Section 520.9(e) reiterates the statutory proscriptions that: (1)
Tariffs must be made available to any person without limits as to time,
quantity, or other limitation; (2) carriers do not have to provide
terminals for remote access; and (3) carriers may assess reasonable
fees for access, but not against Federal agencies, including the FMC;
and further states that tariff systems must contain user instructions.
Lastly, Sec. 520.9(g) requires carriers to provide the FMC
documentation and a requested number of user identification and
passwords. This will enable the Commission to meet its responsibilities
under the 1984 Act.
Section 520.10 Integrity of Tariffs
In an effort to ensure the integrity of individual tariffs and of
the tariff system as a whole, this section requires carriers to
maintain data in their tariff publication systems for 5 years from the
date the information is superseded, and to provide an on-line access to
such data. This is consistent with the five-year statute of limitations
for Commission civil penalty actions set forth in section 13(f) of the
1984 Act. In addition, tariffs shall provide an access date capability,
so that data in effect on a specified date can be retrieved. Without
such capability, it would be impossible for the shippers or the
Commission to ascertain accurate rate information concerning past
shipments. Carriers must also provide BTCL with a written certification
from an officer that the information in their tariffs is true and
accurate and that no unlawful alterations will be permitted. The
Commission is proposing to accept this procedure in lieu of mandating
particular systems for ensuring tariff integrity and security. This
section further notes that the Commission will periodically review
published tariff systems and will prohibit use of systems that fail to
meet the requirements of this part. To aid in this endeavor, carriers
must provide the Commission reasonable access to their systems and
records in order to conduct reviews.
Section 520.11 Non-Vessel-Operating Common Carriers
This section carries forward and gathers in one place various
provisions relating to NVOCCs that were spread throughout part 514. The
financial responsibility requirements and agent for service of process
have been taken from 46 CFR 514.15(b)(24) and the co-loading provision
comes from 46 CFR 514.5(b)(14). The proposed rule essentially carries
these provisions
[[Page 70371]]
forward, with minor modifications. The Commission may address at a
later date the question of co-loading practices with respect to OSRA's
modified criteria for exemptions, as well as other changes made by
OSRA.
Section 520.12 Time/Volume Rates
The provision relating to time/volume rates in foreign commerce is
contained in 46 CFR 514.13(b)(19)(i). The proposed rule has placed them
in a separate section, while generally carrying forward the previous
requirements affecting time/volume rates. In addition, this section
permits carriers to cancel time/volume rates which have not been
``accepted'' by a shipper within 30 days and prohibits the use of
liquidated damages provisions in time/volume rate offerings. The
Commission believes that the use of liquidated damages provisions are
more appropriate to service contracts.
Section 520.13 Exemptions
This section sets forth various services and cargo types that are
currently exempt under 46 CFR 514.3. Several of the prior exemptions
have not been carried forward because they are no longer relevant to a
carrier tariff publication rule or they are no longer subject to the
Commission's jurisdiction. However, the Commission questions whether
all of the exemptions carried forward are still necessary and
accordingly invites comment by interested parties as to the continued
need for certain exemptions. The proposed rule further notes future
exemption requests will be governed by section 16 of the 1984 Act and
Rule 67 of the Commission's rules of practice and procedure. 46 CFR
502.67.
Section 520.14 Special Permission
Proposed Sec. 520.14 essentially carries forward the special
permission procedure set forth at 46 CFR 514.18. Minor modifications
have been made to reflect the changes occasioned by OSRA.
Inland Portions of Through Movements to Europe
Unlike the United States, it appears that the European Commission
(``E.C.'')--while permitting conference tariffs for the ocean movement
of cargo--prohibits conference tariffs which cover the movement of
cargo to inland points in Europe. Therefore, it seems that carriers in
the U.S.-European trade may participate in a conference tariff covering
U.S.-Europe ocean movements, and utilize individual tariffs covering
European inland transport for the same shipper customer. A question has
arisen as to whether these tariffs for European inland transport must
be published under the Act. It would seem that publishing would be
consistent with statutory requirements to the extent the tariffs
establish the European inland portion of a through rate charged by a
carrier in a U.S.-Europe intermodal movement. However, the Commission
welcomes comments on how it could minimize the regulatory burdens
occasioned by these differences in regulatory regimes, to the extent it
may do so given its own statutory responsibility.
The reporting requirements contained in 46 CFR part 520 have been
submitted to the Office of Management and Budget (OMB). Public burden
for this collection of information is estimated to be 313,400 hours for
3,000 respondents. This estimate includes, as applicable, the time
needed to review instructions, develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to respond to a collection of information, search
existing data sources, gather and maintain the data needed, and
complete and review the collection of information; and transmit or
otherwise disclose the information. Send comments regarding the burden
estimate to the Office of Information and Regulatory Affairs, Office of
Management and Budget, Attention Desk Officer for the Federal Maritime
Commission, New Executive Office Building, 725 17th Street, NW.,
Washington, DC 20503 within 30 days of publication in the Federal
Register.
The FMC would also like to solicit comments to: (a) Evaluate
whether the proposed collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information will have practical utility; (b) evaluate the accuracy
of the Commission's burden estimates for the proposed collection of
information; (c) enhance the quality, utility, and clarity of the
information to be collected; and (d) minimize the burden of the
collection of information on respondents, including the use of
automated collection techniques or other forms of information
technology. Comments submitted in response to this proposed rulemaking
will be summarized and/or included in the final rule and will become a
matter of public record.
The Chairman of the Commission certifies, pursuant to section 605
of the Regulatory Flexibility Act, 5 U.S.C. 605, that the proposed rule
would not, if promulgated, have a significant impact on a substantial
number of small entities. The rule will either have no effect on small
entities, or in the case where the rule is likely to impact small
entities, the economic impact will be de minimis.
List of Subjects in 46 CFR Parts 514 and 520
Common Carrier; Freight; Harbors, Intermodal transportation;
Maritime carriers; Reporting and recordkeeping requirements.
Therefore, for the reasons set forth above, part 514 to subchapter
C, chapter IV of 46 CFR is proposed to be removed and part 520 to
subchapter B, chapter IV of 46 CFR is proposed to be added as set forth
below:
PART 514--[REMOVED]
PART 520--CARRIER AUTOMATED TARIFFS
Sec.
520.1 Scope and purpose.
520.2 Definitions.
520.3 Publication responsibilities.
520.4 Tariff contents.
520.5 Standard tariff terminology.
520.6 Retrieval of information.
520.7 Tariff limitations.
520.8 Effective dates.
520.9 Access to tariffs.
520.10 Integrity of tariffs.
520.11 Non-vessel-operating common carriers.
520.12 Time/volume rates.
520.13 Exemptions.
520.14 Special permission.
Appendix A to Part 520--Standard Terminology and Codes
Authority: 5 U.S.C. 553; 46 U.S.C. app. 1701-1702, 1707-1709,
1712, 1716; Pub. L. 105-258, 112 Stat. 1902; and sec. 424 of Pub. L.
105-383.
Sec. 520.1 Scope and purpose.
(a) Scope. The regulations of this part govern the publication of
tariffs in automated systems by common carriers and conferences in the
waterborne foreign commerce of the United States. They cover the
transportation of property by such carriers, including through
transportation with inland carriers. They implement the tariff
publication requirements of section 8 of the Shipping Act of 1984
(``Act''), as modified by the Ocean Shipping Reform Act of 1998 and
section 424 of Pub. L. 105-258.
(b) Purpose. The requirements of this part are intended to permit:
[[Page 70372]]
(1) Shippers and other members of the public to obtain reliable and
useful information concerning the rates and charges that will be
assessed by common carriers and conferences for their transportation
services;
(2) Carriers and conferences to meet their publication requirements
pursuant to section 8 of the Act;
(3) The Commission to ensure that carrier tariff publications are
accurate and accessible and to protect the public from violations by
carriers of section 10 of the Act; and
(4) The Commission to review and monitor the activities of
controlled carriers pursuant to section 9 of the Act.
Sec. 520.2 Definitions.
The following definitions shall apply to this part:
Act means the Shipping Act of 1984, as amended by the Ocean
Shipping Reform Act of 1998.
Amendment means any change, alteration, correction or modification
of an existing tariff.
Assessorial charge means the amount that is added to the basic
ocean freight rate.
BTCL means the Commission's Bureau of Tariffs, Certification and
Licensing or its successor bureau.
Bulk cargo means cargo that is loaded and carried in bulk without
mark or count in a loose unpackaged form, having homogeneous
characteristics. Bulk cargo loaded into intermodal equipment, except
LASH or Seabee barges, is subject to mark and count and is, therefore,
subject to the requirements of this part.
Co-loading means the combining of cargo by two or more NVOCCs for
tendering to an ocean common carrier under the name of one or more of
the NVOCCs.
Combination rate means a rate for a shipment moving under
intermodal transportation which is computed by the addition of a TRI,
and an inland rate applicable from/to inland points not covered by the
TRI.
Commission means the Federal Maritime Commission.
Commodity description means a comprehensive description of a
commodity listed in a tariff, including a brief definition of the
commodity, any applicable assessorial, related assessorial charges if
any, and the commodity index entries by which the commodity is
referenced.
Commodity description number means a 10-digit number used to
identify a commodity description.
Commodity index means an index of the commodity descriptions
contained in a tariff.
Commodity rate means a rate for shipping to or from specific
locations a commodity or commodities specifically named or described in
the tariff in which the rate or rates are published.
Common carrier means a person holding itself out to the general
public to provide transportation by water of cargo between the United
States and a foreign country for compensation that:
(1) Assumes responsibility for the transportation from port or
point of receipt to the port or point of destination; and
(2) Utilizes, for all or part of that transportation, a vessel
operating on the high seas or the Great Lakes between a port in the
United States and a port in a foreign country, except that the term
does not include a common carrier engaged in ocean transportation by
ferry boat, ocean tramp, or chemical parcel tanker or by a vessel when
primarily engaged in the carriage of perishable agricultural
commodities:
(i) If the common carrier and the owner of those commodities are
wholly-owned, directly or indirectly, by a person primarily engaged in
the marketing and distribution of those commodities and
(ii) Only with respect to the carriage of those commodities.
Conference means an agreement between or among two or more ocean
common carriers which provides for the fixing of and adherence to
uniform tariff rates, charges, practices and conditions of service
relating to the receipt, carriage, handling and/or delivery of
passengers or cargo for all members, but the term does not include
joint service, consortium, pooling, sailing, or transshipment
agreements.
Consignee means the recipient of cargo from a shipper; the person
to whom a transported commodity is to be delivered.
Container means a demountable and reusable freight-carrying unit
designed to be transported by different modes of transportation and
having construction, fittings, and fastenings able to withstand,
without permanent distortion or additional exterior packaging or
containment, the normal stresses that apply on continuous all-water and
intermodal transportation. The term includes dry cargo, ventilated,
insulated, refrigerated, flat rack, vehicle rack, liquid tank, and
open-top containers without chassis, but does not include crates, boxes
or pallets.
Controlled carrier means an ocean common carrier that is, or whose
operating assets are, directly or indirectly owned or controlled by a
government; ownership or control by a government shall be deemed to
exist with respect to any common carrier if:
(1) A majority portion of the interest in the common carrier is
owned or controlled in any manner by that government, by an agency
thereof, or by any public or private person controlled in any manner by
that government, by any agency thereof, or by any public or private
person controlled by that government; or
(2) That government has the right to appoint or disapprove the
appointment of a majority of the directors, the chief operating officer
or the chief executive officer of the common carrier.
Effective date means the date upon which a published tariff or
tariff element is scheduled to go into effect. Where there are multiple
publications to a tariff element on the same day, the last element
published with the same effective date is the one effective for that
day.
Expiration date means the last day after which the entire tariff or
tariff element is no longer in effect.
Foreign commerce means that commerce under the jurisdiction of the
Act.
Forest products means forest products including, but not limited
to, lumber in bundles, rough timber, ties, poles, piling, laminated
beams, bundled siding, bundled plywood, bundled core stock or veneers,
bundled particle or fiber boards, bundled hardwood, wood pulp in rolls,
wood pulp in unitized bales, paper and paper board in rolls or in
pallet or skid-sized sheets, liquid or granular by-products derived
from pulping and papermaking, and engineered wood products.
Harmonized Code means the coding provisions of the Harmonized
System.
Harmonized System means the Harmonized Tariff Schedule of the
United States (``US HTS''), based on the international Harmonized
System, administered by the U.S. Customs Service for the U.S.
International Trade Commission.
Inland point means any city and associated state/province, country,
U.S. ZIP code, or U.S. ZIP code range, which lies beyond port terminal
areas. (A city may share the name of a port: the immediate ship-side
and terminal area is the port, but the rest of the city is considered
an inland point.)
Inland rate means a rate specified from/to an ocean port to/from an
inland point, for specified modes of overland transportation.
Inland rate table means a structured matrix of geographic inland
locations (points, postal codes/postal code ranges, etc.) on one axis
and transportation modes (truck, rail, etc.) on the other
[[Page 70373]]
axis, with the inland rates specified at the matrix row and column
intersections.
Intermodal transportation means continuous transportation involving
more than one mode of service (e.g., ship, rail, motor, air), for
pickup and/or delivery at a point beyond the area of the port at which
the vessel calls. The term ``intermodal transportation'' can apply to
``through transportation (at through rates)'' or transportation on
through routes using combination rates.
Joint rates means rates or charges established by two or more
common carriers for ocean transportation over the combined routes of
such common carriers.
Local rates means rates or charges for transportation over the
route of a single common carrier (or any one common carrier
participating in a conference tariff), the application of which is not
contingent upon a prior or subsequent movement.
Location group means a logical collection of geographic points,
ports, states/provinces, countries, or combinations thereof, which is
primarily used to identify, by location group name, a group that may
represent tariff origin and/or destination scope and TRI origin and/or
destination.
Loyalty contract means a contract with an ocean common carrier or
agreement by which a shipper obtains lower rates by committing all or a
fixed portion of its cargo to that carrier or agreement and the
contract provides for a deferred rebate arrangement.
Ocean common carrier means a vessel-operating common carrier.
Ocean transportation intermediary means an ocean freight forwarder
or a non-vessel-operating common carrier. For purposes of this part,
the term
(1) Ocean freight forwarder means a person that----
(i) In the United States, dispatches shipments from the United
States via a common carrier and books or otherwise arranges space for
those shipments on behalf of shippers; and
(ii) Processes the documentation or performs related activities
incident to those shipments; and
(2) Non-vessel-operating common carrier (``NVOCC'') Means a common
carrier that does not operate the vessels by which the ocean
transportation is provided, and is a shipper in its relationship with
an ocean common carrier.
Open rate means a rate on a specified commodity or commodities over
which a conference relinquishes or suspends its ratemaking authority in
whole or in part, thereby permitting each individual ocean common
carrier member of the conference to fix its own rate on such commodity
or commodities.
Organization name means an entity's name on file with the
Commission and for which the Commission assigns an organization number.
Organization record means information regarding an entity,
including its name, address, and organization type.
Origin scope means a location group defining the geographic range
of cargo origins covered by a tariff.
Person includes individuals, firms, partnerships, associations,
companies, corporations, joint stock associations, trustees, receivers,
agents, assignees and personal representatives.
Point of rest means that area on the terminal facility which is
assigned for the receipt of inbound cargo from the ship and from which
inbound cargo may be delivered to the consignee, and that area which is
assigned for the receipt of outbound cargo from shippers for vessel
loading.
Port means a place at which a common carrier originates or
terminates (by transshipment or otherwise) its actual ocean carriage of
cargo or passengers as to any particular transportation movement.
Project rates means rates applicable to the transportation of
materials and equipment to be employed in the construction or
development of a named facility used for a major governmental,
charitable, manufacturing, resource exploitation and public utility or
public service purpose, including disaster relief projects.
Proportional rates means rates or charges assessed by a common
carrier for transportation services, the application of which is
conditioned upon a prior or subsequent movement.
Publication date means the date a tariff or tariff element is
published in a carrier's or conference's tariff.
Publisher means an organization authorized to publish or amend
tariff information.
Rate means a price stated in a tariff for providing a specified
level of transportation service for a stated cargo quantity, from
origin to destination, on and after a stated effective date or within a
defined time frame.
Retrieval means the process by which a person accesses a tariff via
dial-up telecommunications or a network link and interacts with the
carrier's or publisher's system on a transaction-by-transaction basis
to retrieve published tariff matter.
Rules means the stated terms and conditions set by the tariff owner
which govern the application of tariff rates, charges and other
matters.
Scope means the location group(s) (geographic groupings(s)) listing
the ports or ranges of ports to and from which the tariff's rates
apply.
Shipment means all of the cargo carried under the terms of a single
bill of lading.
Shipper means:
(1) A cargo owner;
(2) The person for whose account the ocean transportation is
provided;
(3) The person to whom delivery is to be made
(4) A shipper's association; or
(5) An NVOCC that accepts responsibility for payment of all charges
applicable under the tariff or service contract.
Shippers' association means a group of shippers that consolidates
or distributes freight on a nonprofit basis for the members of the
group in order to secure carload, truckload, or other volume rates or
service contracts.
Special permission means permission, authorized by the Commission,
for certain tariff publications that do not conform with applicable
regulations, usually involving effectiveness on less than statutory
notice.
Tariff means a publication containing the actual rates, charges,
classifications, rules, regulations and practices of a common carrier
or a conference of common carriers. The term practices refers to those
usages, customs or modes of operation which in any way affect,
determine or change the transportation rates, charges or services
provided by a common carrier or conference and, in the case of
conferences, must be restricted to activities authorized by the basic
conference agreement.
Tariff rate item (``TRI'') means a single freight rate, in effect
on and after a specific date or for a specific time period, for the
transportation of a stated cargo quantity, which may move from origin
to destination under a single specified set of transportation
conditions, such as container size or temperature.
Tariff number means a unique 3-digit number assigned by the
publisher to distinguish it from other tariffs. Tariffs may be
identified by the 6-digit organization number plus the user-assigned
tariff number (e.g., 999999-001) or a Standard Carrier Alpha Code
(``SCAC'') plus the user-assigned tariff number.
TRI number means a 14-digit number which consists of the commodity
code (first ten digits) and four unique suffix differentiate TRIs
within the same commodity description.
Through rate means the single amount charged by a common carrier in
connection with through transportation.
[[Page 70374]]
Through transportation means continuous transportation between
points of origin and destination, either or both of which lie beyond
port terminal areas, for which a through rate is assessed and which is
offered or performed by one or more carriers, at least one of which is
a common carrier, between a United States point or port and a foreign
point or port.
Thru date means the date after which an amendment to a tariff
element is designated by the publisher to be unavailable for use and
the previously effective tariff element automatically goes back into
effect.
Time/volume rate means a rate published in a tariff which is
conditioned upon receipt of a specified aggregate volume of cargo or
aggregate freight revenue over a specified period of time.
Trade name means a name used for conducting business, but which is
not necessarily its legal name. This is also known as a ``d/b/a''
(doing business as) name.
Transshipment means the physical transfer of cargo from a vessel of
one carrier to a vessel of another in the course of all-water or
through transportation, where at least one of the exchanging carriers
is a vessel-operating carrier subject to the Commission's jurisdiction.
Sec. 520.3 Publication responsibilities.
(a) General. Unless otherwise exempted by Sec. 520.13, all common
carriers and conferences shall keep open for public inspection, in
automated tariff systems, tariffs showing all rates, charges,
classifications, rules, and practices between all points or ports on
their own routes and on any through transportation route that has been
established.
(b) Conferences. Conferences shall publish, in their automated
tariff systems, rates offered pursuant to independent action by their
members and any open rates offered by their members.
(c) Agents. Common carriers or conferences may use agents to meet
their publication requirements under this part.
(d) Notification. Each common carrier and conference shall notify
BTCL, prior to the commencement of common carrier service pursuant to a
published tariff, of its organization name, organization number, home
office address, name and telephone number of firm's representative, the
location of its tariffs, and the publisher, if any, used to maintain
its tariffs, by submitting Form FMC-1. Any changes to the above
information shall be immediately transmitted to BTCL. The Commission
will provide a unique organization number to new entities operating as
common carriers or conferences in the U.S. foreign commerce.
(e) Location of tariffs. The Commission will publish on its
website, www.fmc.gov, a listing of the locations of all carrier and
conference tariffs. The Commission will update this list on a periodic
basis.
Sec. 520.4 Tariff contents.
(a) General. Tariffs published pursuant to this part shall:
(1) State the places between which cargo will be carried;
(2) List each classification of cargo in use;
(3) State the level of ocean transportation intermediary, as
defined by section 3(17)(A) of the Act, compensation, if any, to be
paid by a carrier or conference;
(4) State separately each terminal or other charge, privilege, or
facility under the control of the carrier or conference and any rules
or regulations that in any way change, affect, or determine any part of
the aggregate of the rates or charges;
(5) Include sample copies of any bill of lading, contract of
affreightment or other document evidencing the transportation
agreement;
(6) Include copies of any loyalty contract, omitting the shipper's
name;
(7) Contain an organization record, tariff record, and tariff
rules; and
(8) For commodity tariffs, also contain commodity descriptions and
tariff rate items.
(b) Organization record. Common carriers' and conferences'
organization records shall include:
(1) Organization name;
(2) Organization number assigned by the Commission;
(3) Agreement number, where applicable;
(4) Organization type (e.g., ocean common carrier (VOCC),
conference (CONF), non-vessel-operating common carrier (NVOCC) or
agent);
(5) Home office address and telephone number of firm's
representative;
(6) Names and organization numbers of all affiliates to conferences
or agreements, including trade names; and
(7) The publisher, if any, used to maintain the organization's
tariffs.
(c) Tariff record. The tariff record for each tariff shall include:
(1) Organization number and name, including any trade name;
(2) Tariff number;
(3) Tariff title;
(4) Tariff type (e.g., commodity, rules, equipment interchange, or
bill of lading);
(5) Contact person and address;
(6) Default measurement and currency units; and (7) Origination and
destination scope.
(d) Tariff rules. Carriers and conferences shall publish in their
tariffs any rule that affects the application of the tariff. If they
adopt rules addressing the following subject areas, the rule shall use
the following specific titles:
(1) Scope;
(2) Payment of freight charges;
(3) Bills of lading;
(4) Freight forwarder compensation;
(5) Surcharges and arbitraries;
(6) Transshipment;
(7) Shipper requests;
(8) Overcharge claims;
(9) Heavy lift;
(10) Extra length;
(11) Minimum bill of lading charges;
(12) Ad valorem rates;
(13) Hazardous cargo;
(14) Returned cargo;
(15) Equipment interchange agreements;
(16) Seasonal discontinuance;
(17) Project rates;
(18) Terminal handling charges; and
(19) Destination or delivery charges.
(e) Commodity descriptions. (1) For each separate commodity in a
tariff, a distinct 10-digit numeric code shall be used. Tariff
publishers may use any numeric commodity coding pattern, but should use
the U.S. Harmonized Tariff Schedule (``US HTS'') for both the commodity
coding and associated terminology (definitions), to the maximum extent
possible.
(2) The following commodity types shall be preceded by their
associated 2-digit prefixes, with the remaining digits at the
publisher's option:
(i) Mixed commodities--``99';
(ii) Projects--``98'; and
(iii) Non-commodities, e.g., ``cargo, n.o.s.,'' ``general cargo,''
or ``freight-all kinds''--``00''.
(3) Commodity index. (i) Each commodity description created under
this section shall have at least one similar index entry which will
logically represent the commodity within the alphabetical index.
Publishers are encouraged, however, to create multiple entries in the
index for articles with equally valid common use names, such as,
``Sodium Chloride,'' ``Salt, common,'' etc.
(ii) If a commodity description includes two or more commodities,
each included commodity shall be shown in the index.
(iii) Items, such as ``mixed commodities,'' ``projects'' or
``project rates,'' ``n.o.s.'' descriptions, and ``FAK,'' shall be
included in the commodity index.
[[Page 70375]]
(f) Tariff rate items. A tariff rate item (``TRI'') is the single
freight rate in effect for the transportation of cargo under a
specified set of transportation conditions. TRIs must contain the
following:
(1) Brief commodity description;
(2) TRI number;
(3) Publication date;
(4) Effective date;
(5) Origin and destination locations or location groups;
(6) Rate;
(7) Rate basis;
(8) Service code; and
(9) Via port or port group if origin and/or destinations are not
port/port group.
(g) Location groups. In the primary tariff, or in a governing
tariff, the publisher shall define and create groups of cities, states,
provinces and countries (e.g., location groups) or groups of ports
(e.g., port groups), which may be used in the construction of TRIs and
other tariff objects, in lieu of specifying particular place names in
each tariff item, or creating multiple tariff items which are identical
in all ways except for place names.
(h) Inland rate tables. If a carrier or conference desires to
provide intermodal transportation to or from named points/postal
regions at combination rates, it shall clearly and accurately set forth
the applicable charges in an ``Inland Rate Tables'' section. An inland
rate table may be constructed to provide an inland distance which is
applied to a per mile rate to calculate the inland rate.
(i) Shipper requests. Conference tariffs shall contain clear and
complete instructions, in accordance with the agreement's provisions,
stating where and by what method shippers may file requests and
complaints and how they may engage in consultation pursuant to section
5(b)(6) of the Act, together with a sample rate request form or a
description of the information necessary for processing the request or
complaint.
(j) Inland divisions. Common carriers are not required to state
separately or otherwise reveal in tariffs the inland division of a
through rate.
Sec. 520.5 Standard tariff terminology.
(a) Approved codes. The Standard Terminology Appendix provides the
existing Commission approved codes which shall be used in tariffs.
These approved codes for rate bases, container sizes, service, etc.,
and the approved units for weight, measure and distance, provide a
standard terminology baseline for tariffs and facilitate retriever
efficiency. The Commission will consider additions to the Appendix on a
case-by-case basis and publish changes as they are approved on its
website.
(b) Geographic names. Tariffs shall only employ locations (points)
that are valid, published locations in the National Imagery and Mapping
Agency (``NIMA'') gazetteer. Only ports published or approved for
publication in the World Port Index (Pub. No. 150) shall be used in
tariffs. A port must have a NIMA gazetteer point to be valid.
Sec. 520.6 Retrieval of information.
(a) General. Tariffs shall present retrievers with a tariff
selection option and/or the capability to select an object group (e.g.,
rules, location groups, etc.).
(b) Search capability. Tariffs shall provide the capability to
search for a commodity and an associated rate within a commodity tariff
by text search and by number.
(1) Commodity searches. (i) A text search feature shall allow
``non-case sensitive'' text searches of commodity descriptions. Text
search matches (hits) should result in a commodity or commodity index
list.
(ii) A commodity number search shall allow number searches using
the first two (chapter), four (heading), eight (subheading) or all ten
numbers of the commodity description number.
(2) Rate searches. A direct rate search function shall be provided
whereby the retriever may enter all fourteen numbers for access to a
specific TRI.
(c) Commodities and TRIs. Retriever selection of a specific
commodity from a commodity list, commodity index or a direct commodity
number search shall display the commodity description and provide an
option for a TRI display or a TRI list if multiple TRIs are in effect
for the commodity on the retriever-entered access date.
(d) Object groups. Retriever selection of a specific object group
shall result in a list of the objects within the group or present a
search mechanism to allow location of an object or object within the
group. For example, selection of the rules object group would present a
list of the rules. For rules, a ``non-case sensitive'' text search
capability shall be provided to locate rules that contain specific
terms or phrases. Selection of the commodities object group shall allow
for text and commodity number search capability.
(e) Basic ocean freight. The minimum rate calculation capability
for tariffs shall be a calculated basic ocean freight (``BOF'') (to
include any adjustments to the BOF and inland rates for combination
rates) and presentation of a list of all assessorial charges, by rule
number and charge title, that apply for the retriever-entered shipment
parameters.
(f) Displays. All displays of individual tariff matter shall
include the publication date, effective date, amendment code (as
contained in Appendix A to this part) and object name or number. When
applicable, a thru date or expiration date shall also be displayed. Use
of ``S'' as an amendment code shall be accompanied by a Commission
issued special use number.
Sec. 520.7 Tariff limitations.
(a) General. Tariffs published pursuant to this part shall:
(1) Be clear and definite;
(2) Use English as the primary textual language;
(3) Not contain cross-references to any other tariffs, except a
tariff of general applicability maintained by that same carrier or
conference; and
(4) Not duplicate or conflict with any other tariff publication.
(b) Notice of cancellation. Carriers and conferences shall inform
BTCL, in writing, whenever a tariff is canceled and the effective date
of that cancellation.
(c) Applicable rates. The rates, charges, and rules applicable to
any given shipment shall be those in effect on the date the cargo is
received by the common carrier or its agent including originating
carriers in the case of rates for through transportation.
(d) Minimum quantity rates. When two or more TRIs are stated for
the same commodity over the same route and under similar conditions,
and the application is dependent upon the quantity of the commodity
shipped, the total freight charges assessed against the shipment may
not exceed the total charges computed for a larger quantity, if the TRI
specifying a required minimum quantity (either weight or measurement;
per container or in containers) will be applicable to the contents of
the container(s), and if the minimum set forth is met or exceeded. At
the shipper's option, a quantity less than the minimum level may be
freighted at the lower TRI if the weight or measurement declared for
rating purposes is increased to the minimum level.
(e) Green salted hides. The shipping weight for green salted hides
shall be either a scale weight or a scale weight minus a deduction,
which amount and method of computation are specified in the commodity
description. The shipper must furnish the carrier a weight certificate
or dock receipt from an inland common carrier for each shipment at or
before the time the
[[Page 70376]]
shipment is tendered for ocean transportation.
(f) Conference situations. (1) New members of a conference shall
cancel any independent tariffs applicable to the trades served by the
conference, subject to paragraph (f)(2)(ii) of this section. Admission
to the conference may be effective on the date notice is published in
the conference tariff.
(2) Cancellation of an independent tariff requires 30 days' notice
if:
(i) The carrier is a controlled carrier, or
(ii) The addition of the carrier to the conference results in a
rate change from the independent tariff which causes an increase in
costs to a shipper.
(g) Overcharge claims. (1) No tariff may limit the filing of
overcharge claims with a common carrier to a period of less than three
years from the accrual of the cause of action.
(2) The acceptance of any overcharge claim may not be conditioned
upon the payment of a fee or charge.
(3) No tariff may require that overcharge claims based on alleged
errors in weight, measurement or description of cargo be filed before
the cargo has left the custody of the common carrier.
(h) Returned cargo. When a carrier or conference offers the return
shipment of refused, damaged or rejected shipments, or exhibits at
trade fairs, shows or expositions, to port of origin at the TRI
assessed on the original movement, and such TRI is lower than the
prevailing TRI:
(1) The return shipment must occur within one year;
(2) The return movement must be made over the line of the same
common carrier performing the original movement, except in the use of a
conference tariff, where return may be made by any member line when the
original shipment was carried under the conference tariff; and
(3) A copy of the original bill of lading showing the rate assessed
must be presented to the return common carrier.
Sec. 520.8 Effective dates.
(a) General. (1) No new or initial rate, or change in an existing
rate, that results in an increased cost to a shipper may become
effective earlier than 30 calendar days after publication.
(2) An amendment which deletes a specific commodity and applicable
rate from a tariff, thereby resulting in a higher ``cargo n.o.s.'' or
similar general cargo rate, is a rate increase requiring a 30-day
notice period.
(3) Rates for the transportation of cargo for the U.S. Department
of Defense may be effective upon publication.
(4) Changes in rate charges, rules, regulations or other tariff
provisions resulting in a decrease in cost to a shipper may become
effective upon publication.
(b) Amendments. The following amendments may take effect upon
publication:
(1) Those resulting in no change in cost to a shipper;
(2) The canceling of a tariff due to cessation of all service by
the carrier between the ports or points covered by the tariff;
(3) The addition of a port or point to a previously existing origin
or destination grouping; or
(4) Changes in charges for terminal services, canal tolls,
additional charges, or other provisions not under the control of the
common carriers or conferences, which merely acts as a collection agent
for such charges and the agency making such changes does so without
notifying the tariff owner.
(c) Controlled carriers. Published rates by or for controlled
carriers shall be governed by the procedures set forth in part 565 of
this chapter.
Sec. 520.9 Access to tariffs.
(a) Methods to access. Carriers and conferences shall provide
access to their published tariffs, via a personal computer (``PC''),
by:
(1) Dial-up connection via public switched telephone networks
(``PSTN''); or
(2) The Internet (Web) by:
(i) Web browser; or
(ii) Telnet session.
(b) Dial-up connection via PSTN. (1) This connection option
requires that tariffs provide:
(i) A minimum of a 14.4Kbps modem capable of receiving incoming
calls;
(ii) Smart terminal capability for VT-100 terminal or terminal
emulation access; and
(iii) Telephone line quality for data transmission.
(2) The modem may be included in a collection (bank) of modems as
long as all modems in the bank meet the minimum speed. Smart terminal
emulation provides for features such as bold, blinking, underlining and
positioning to specific locations on the display screen.
(c) Internet connection. (1) This connection option requires that
systems provide:
(i) A universal resource locator (``URL'') Internet address (e.g.,
http://www.tariffsrus.com or http://1.2.3.4); and/or
(ii) A URL Internet address (e.g., telnet://tariffsrus or telnet://
1.2.3.4), for Telnet session access over the Internet.
(2) Carriers or conferences shall ensure that their Internet
service providers provide static Internet addresses.
(d) Commission access. Commission telecommunications access to
systems must include connectivity via a dial-up connection over PSTNs
or a connection over the Internet. Connectivity will be provided at the
expense of the publishers. Any recurring connection fees, hardware
rental fees, usage fees or any other charges associated with the
availability of the system are the responsibility of the publisher. The
Commission shall only be responsible for the long-haul charges for PSTN
calls to a tariff initiated by the FMC.
(e) Limitations. (1) Tariffs must be made available to any person
without time, quantity, or other limitations.
(2) Carriers are not required to provide remote terminals for
access under this section.
(3) Carriers and conferences may assess a reasonable fee for access
to their tariff publication systems and such fees shall not be
discriminatory.
(4) Tariff publication systems shall provide user instructions for
access to tariff information.
(f) Federal agencies. Carriers and conferences may not assess any
access charges against the Commission or any other Federal agency.
(g) User identifications. Carriers and conferences shall provide
the Commission with the documentation it requires and the number of
user identifications and passwords it requests to facilitate the
Commission's access to their systems.
Sec. 520.10 Integrity of Tariffs.
(a) Historical data. Carriers and conferences shall maintain the
data in their tariff publication systems for a period of 5 years from
the date any information is superseded, canceled or withdraws, and
shall provide on-line access to such data.
(b) Access date capability. Each tariff shall provide the
capability for a retriever to enter an access date, i.e., a specific
date for the retrieval of tariff data, so that only data in effect on
that date would be directly retrievable. This capability would also
align any rate adjustments and assessorial charges that were effective
on the access date for rate calculations and designation of applicable
surcharges. The access date shall also apply to the alignment of tariff
objects for any governing tariffs.
(c) Periodic review. The Commission will periodically review
published tariff systems and will prohibit the use of any system that
fails to meet the requirements of this part.
[[Page 70377]]
(d) Access to systems. Carriers and conferences shall provide the
Commission reasonable access to their automated systems and records in
order to conduct reviews.
(e) Certification. Before a tariff becomes effective, carriers and
conferences shall provide BTCL with a written certification by an
officer or executive that all information contained in their tariff
publication is true and accurate and that no unlawful alterations will
be permitted.
Sec. 520.11 Non-vessel-operating common carriers.
(a) Financial responsibility. An ocean transportation intermediary
that operates as a non-vessel-operating common carrier shall state in
its tariff publication:
(1) That it has furnished the Commission proof of its financial
responsibility in the manner and amount required by part 515 of this
chapter;
(2) The manner of its financial responsibility;
(3) Whether it is relying on coverage provided by a group or
association to which it is a member;
(4) The name and address of the surety company, insurance company
or guarantor issuing the bond, insurance policy, or guaranty;
(5) The number of the bond, insurance policy or guaranty; and
(6) Where applicable, the name and address of the group or
association providing coverage.
(b) Agent for service. Every NVOCC not in the United States shall
state the name and address of the person in the United States
designated under part 515 of this chapter as its legal agent for
service of process, including subpoenas. The NVOCC shall further state
that in any instance in which the designated legal agent cannot be
served because of death, disability or unavailability, the Secretary,
FMC will be deemed to be its legal agent for service of process.
(c) Co-loading. (1) NVOCCs shall address the following situations
in their tariffs:
(i) If an NVOCC does not tender cargo for co-loading, this shall be
noted in its tariff.
(ii) If two or more NVOCCs enter into an agreement which
establishes a carrier-to-carrier relationship for the co-loading of
cargo, then the existence of such agreement shall be noted in the
tariff.
(iii) If two NVOCCs enter into a co-loading arrangement which
results in a shipper-to-carrier relationship, the tendering NVOCC shall
describe its co-loading practices and specify its responsibility to pay
any charges for the transportation of the cargo. A shipper-to-carrier
relationship shall be presumed to exist where the receiving NVOCC
issues a bill of lading to the tendering NVOCC for carriage of the co-
loaded cargo.
(2) Documentation requirements. An NVOCC which tenders cargo to
another NVOCC for co-loading, whether under a shipper-to-carrier or
carrier-to-carrier relationship, shall annotate each applicable bill of
lading with the identity of any other NVOCC to which the shipment has
been tendered for co-loading. Such annotation shall be shown on the
face of the bill of lading in a clear and legible manner.
(3) Co-loading rates. No NVOCC may offer special co-loading rates
for the exclusive use of other NVOCCs. If cargo is accepted by an NVOCC
from another NVOCC which tenders that cargo in the capacity of a
shipper, it must be rated and carried under tariff provisions which are
available to all shippers.
Sec. 520.12 Time/volume rates.
(a) General. Common carriers or conferences may publish in their
tariffs rates which are conditioned upon the receipt of a specified
aggregate volume of cargo or aggregate freight revenue over a specified
period of time.
(b) Publication requirements. (1) All rates, charges,
classifications rules and practices concerning time/volume rates must
be set forth in the carrier's or conference's tariff.
(2) The tariff shall identify:
(i) The shipment records that will be maintained to support the
rate; and
(ii) The method to be used by shippers giving notice of their
intention to use a time/volume rate prior to tendering any shipments
under the time/volume arrangement.
(c) Accepted rates. Once a time/volume rate is accepted by one
shipper, it shall remain in effect for the time specified, without
amendment. If no shipper gives notice within 30 days of publication,
the time/volume rate may be canceled.
(d) Records. Shipper notices and shipment records supporting a
time/volume rate shall be maintained by the offering carrier or
conference for at least five years after a shipper's use of a time/
volume rate has ended.
(e) Liquidated damages. Time/volume rates may not impose or attempt
to impose liquidated damages on any shipper that moves cargo under the
rate.
Sec. 520.13 Exemptions.
(a) General. Exemptions from the requirements of this part are
governed by section 16 of the Act and Rule 67 of the Commission's rules
of practice and procedure, Sec. 502.67 of this chapter.
(b) Services. The following services are exempt from the
requirements of this part:
(1) Equipment interchange agreements. Equipment-interchange
agreements between common carriers subject to this part and inland
carriers, where such agreements are not referred to in the carriers'
tariffs and do not affect the tariff rates, charges or practices of the
carriers.
(2) Controlled carriers in foreign commerce. A controlled common
carrier shall be exempt from the provisions of this part exclusively
applicable to controlled carriers when:
(i) The vessels of the controlling state are entitled by a treaty
of the United States to receive national or most-favored-nation
treatment; or
(ii) the controlled carrier operates in a trade served exclusively
by controlled carriers.
(3) Terminal barge operators in Pacific Slope States.
Transportation provided by terminal barge operators in Pacific Slope
States barging containers and containerized cargo by barge between
points in the United States are exempt from the tariff publication
requirements of the Act and the rules of this part, where:
(i) The cargo is moving between a point in a foreign country or a
non-contiguous State, territory, or possession and a point in the
United States;
(ii) The transportation by barge between points in the United
States is furnished by a terminal operator as a service substitute in
lieu of a direct vessel call by the common carrier by water
transporting the containers or containerized cargo under a through bill
of lading; and
(iii) Such terminal operator is a Pacific Slope State,
municipality, or other public body or agency subject to the
jurisdiction of the Commission, and the only one furnishing the
particular circumscribed barge service in question as of January 2,
1975.
(c) Cargo types. The following cargo types are not subject to the
requirements of this part:
(1) Bulk cargo, forest products, etc. This part does not apply to
bulk cargo, forest products, recycled metal scrap, new assembled
automobiles, waste paper and paper waste. Carriers or conferences which
voluntarily publish tariff provisions covering otherwise exempt
transportation thereby subject themselves to the requirements of this
part, including the requirement to adhere to the tariff provisions.
[[Page 70378]]
(2) Mail in foreign commerce. Transportation of mail between the
United States and foreign countries.
(3) Used military household goods. Transportation of used military
household goods and personal effects by ocean transportation
intermediaries.
(4) Department of Defense cargo. Transportation of U.S. Department
of Defense cargo moving in foreign commerce under terms and conditions
negotiated and approved by the Military Transportation Management
Command (``MTMC'') and published in a universal service contract. An
exact copy of the universal service contract, including any amendments
thereto, shall be filed in paper format with the Commission as soon as
it becomes available.
(5) Used household goods--General Services Administration.
Transportation of used military household goods and personal effects
shipped by federal civilian executive agencies under the International
Household Goods Program administered by the General Services
Administration.
(d) Services involving foreign countries. The following
transportation services involving foreign countries are not subject to
the requirements of this part:
(1) Between foreign countries. This part does not apply to
transportation of cargo between foreign countries, including that which
is transshipped from one ocean common carrier to another (or between
vessels of the same common carrier) at a U.S. port or transferred
between an ocean common carrier and another transportation mode at a
U.S. port for overland carriage through the United States, where the
ocean common carrier accepts custody of the cargo in a foreign country
and issues a through bill of lading covering its transportation to a
foreign point of destination.
(2) Between Canada and U.S. The following services are exempt from
the filing requirements of the Act and the rules of this part:
(i) Prince Rupert and Alaska.--(A) Vehicles. Transportation by
vessels operated by the State of Alaska between Prince Rupert, Canada
and ports in southeastern Alaska, if all the following conditions are
met:
(1) Carriage of property is limited to vehicles;
(2) Tolls levied for vehicles are based solely on space utilized
rather than the weight or contents of the vehicle and are the same
whether the vehicle is loaded or empty;
(3) The vessel operator does not move the vehicles on or off the
ship; and
(4) The common carrier does not participate in any joint rate
establishing through routes or in any other type of agreement with any
other common carrier.
(B) Passengers. Transportation of passengers, commercial buses
carrying passengers, personal vehicles and personal effects by vessels
operated by the State of Alaska between Seattle, Washington and Prince
Rupert, Canada, only if such vehicles and personal effects are the
accompanying personal property of the passengers and are not
transported for the purpose of sale.
(ii) British Columbia and Puget Sound Ports; rail cars.--(A)
Through rates. Transportation by water of cargo moving in rail cars
between British Columbia, Canada and United States ports on Puget
Sound, and between British Columbia, Canada and ports or points in
Alaska, only if the cargo does not originate in or is not destined to
foreign countries other than Canada, but only if:
(1) The through rates are filed with the Surface Transportation
Board and/or the Canadian Transport Commission; and
(2) Certified copies of the rate divisions and of all agreements,
arrangements or concurrences, entered into in connection with the
transportation of such cargo, are filed with the Commission within 30
days of the effectiveness of such rate divisions, agreements,
arrangements or concurrences.
(B) Bulk; port-to-port. Transportation by water of cargo moving in
bulk without mark or count in rail cars on a local port-to-port rate
basis between ports in British Columbia, Canada and United States ports
on Puget Sound, only if the rates charged for any particular bulk type
commodity on any one sailing are identical for all shippers, except
that:
(1) This exemption shall not apply to cargo originating in or
destined to foreign countries other than Canada; and
(2) The carrier will remain subject to all other provisions of the
Act.
(iii) Incan Superior, Ltd. Transportation by Incan Superior, Ltd.
of cargo moving in railroad cars between Thunder Bay, Ontario, and
Superior, Wisconsin, only if the cargo does not originate in or is not
destined to foreign countries other than Canada, and if:
(A) The through rates are filed with the Surface Transportation
Board and/or the Canadian Transport Commission; and
(B) Certified copies of the rate divisions and all agreements,
arrangements or concurrences entered into in connection with the
transportation of such cargo are filed with the Commission within 30
days of the effectiveness of such rate divisions, agreements,
arrangements or concurrences.
Sec. 520.14 Special permission.
(a) General. Section 8(d) of the Act authorizes the Commission, in
its discretion and for good cause shown, to permit increases or
decreases in rates, or the issuance of new or initial rates, on less
than the statutory notice. Section 9(c) of the Act authorizes the
Commission to permit a controlled carrier's rates, charges,
classifications, rules or regulations to become effective on less than
30 days' notice. The Commission may also in its discretion and for good
cause shown, permit departures from the requirements of this part.
(b) Clerical errors. Typographical and/or clerical errors
constitute good cause for the exercise of special permission authority
but every application based thereon must plainly specify the error and
present clear evidence of its existence, together with a full statement
of the attending circumstances, and shall be submitted with reasonable
promptness after publishing the defective tariff material.
(c) Application. (1) Applications for special permission to
establish rate increases or decreases on less than statutory notice or
for waiver of the provisions of this part, shall be made by the common
carrier, conference or agent for publishing. Every such application
shall be submitted to BTCL and be accompanied by a filing fee of $179.
(2) Applications for special permission shall be made only by
letter, except that in emergency situations, application may be made by
telephone or facsimile if the communication is promptly followed by a
letter and the filing fee.
(3) Applications for special permission shall contain the following
information:
(i) Organization name, number and trade name of the conference or
carrier;
(ii) Tariff number and title; and
(iii) The rate, commodity, or rules related to the application, and
the special circumstances which the applicant believes constitute good
cause to depart from the requirements of this part or to warrant a
tariff change upon less than the statutory notice period.
(d) Implementation. The authority granted by the Commission shall
be used in its entirety, including the prompt publishing of the
material for which permission was requested. Applicants shall use the
special case number assigned by the Commission with the symbol ``S''.
[[Page 70379]]
Appendix A--Standard Terminology and Codes
I. Publishing/Amendment Type Codes
Code Definition
A Increase
C Change resulting in neither increase nor decrease in rate or
charges
E Expiration (also use ``A'' if the deletion results in the
application of a higher ``cargo, n.o.s.'' or similar rate)
I New or initial matter
K Rate or change filed by a controlled common carrier member of a
conference under independent action
M Transportation of U.S. Department of Defense cargo by American-
flag common carriers.
P Addition of a port or point
R Reduction.
S Special Case matter filed pursuant to Special Permission, Special
Docket or other Commission direction, including filing of tariff
data after suspension, such as for controlled carriers. Requires
``Special Case Number.''
T Terminal Rates, charges or provisions or canal tolls over which
the carrier has no control.
W Withdrawal of an erroneous publication on the same publication
date
X Exemption for controlled carrier data in trades served
exclusively by controlled carriers or by controlled carriers of
states receiving most-favored-nation treatment.
II. Valid Unit Codes
Weight Units
Kilograms...........................................................KGS
1000 Kgs (Metric Ton)................................................KT
Pounds..............................................................LBS
Long Ton (2240 LBS)..................................................LT
Short Ton (2000 LBS).................................................ST
Volume Units
Cubic meter.........................................................CBM
Cubic feet..........................................................CFT
Length Units
Centimeters..........................................................CM
Feet.................................................................FT
Inches...............................................................IN
Meters................................................................M
Measure Board Feet
Thousand Board Feet.................................................MBF
Distance Units
Kilometers...........................................................KM
Miles................................................................MI
Rate Basis
Ad Valorem...........................................................AV
Each.................................................................EA
Lump Sum.............................................................LS
Measure...............................................................M
Thousand Board Feet.................................................MBF
Per Container........................................................PC
Weight................................................................W
Weight/Measure.......................................................WM
Container Size Codes
Not Applicable......................................................N/A
Less Than Load......................................................LTL
10FT Any Height.....................................................10X
Weight Units
Kilograms...........................................................KGS
1000 Kgs (Metric Ton)................................................KT
Pounds..............................................................LBS
Long Ton (2240 LBS)..................................................LT
Short Ton (2000 LBS).................................................ST
Volume Units
Cubic meter.........................................................CBM
Cubic feet..........................................................CFT
Length Units
Centimeters..........................................................CM
Feet.................................................................FT
Inches...............................................................IN
Meters................................................................M
Measure Board Feet
Thousand Board Feet.................................................MBF
Distance Units
Kilometers...........................................................KM
Miles................................................................MI
Rate Basis
Ad Valorem...........................................................AV
Each.................................................................EA
Lump Sum.............................................................LS
Measure...............................................................M
Thousand Board Feet.................................................MBF
Per Container........................................................PC
Weight................................................................W
Weight/Measure.......................................................WM
Container Size Codes
Not Applicable......................................................N/A
Less Than Load......................................................LTL
10FT Any Height.....................................................10X
20FT 8'6''...........................................................20
20FT 9#0## High Cube................................................20A
20FT 9'6'' High Cube................................................20B
20FT 8'0''..........................................................20S
20FT Any Height.....................................................20X
24FT 8'6''...........................................................24
24FT 9'0'' High Cube................................................24A
24FT 9'6'' High Cube................................................24B
24FT 8'0''..........................................................24S
24FT Any Height.....................................................24X
35FT 8'6''...........................................................35
35FT 9'0'' High Cube................................................35A
35FT 9'6'' High Cube................................................35B
35FT 8'0''..........................................................35S
35FT Any Height.....................................................35X
40FT 8'6''...........................................................40
40FT 9'0'' High Cube................................................40A
40FT 9'6'' High Cube................................................40B
40FT 8'0''..........................................................40S
40FT Any Height.....................................................40X
42FT 8'6''...........................................................42
42FT 9'0'' High Cube................................................42A
42FT 9'6'' High Cube................................................42B
42FT 8'0''..........................................................42S
42FT Any Height.....................................................42X
43FT 8'6''...........................................................43
43FT 9'0'' High Cube................................................43A
43FT 9'6'' High Cube................................................43B
43FT 8'0''..........................................................43S
43FT Any Height.....................................................43X
45FT 8'6''...........................................................45
45FT 9'0'' High Cube................................................45A
45FT 9'6'' High Cube................................................45B
45FT 8'0''..........................................................45S
45FT Any Height.....................................................45X
48FT 8'6''...........................................................48
48FT 9'0'' High Cube................................................48A
48FT 9'6'' High Cube................................................48B
48FT 8'0''..........................................................48S
48FT Any Height.....................................................48X
53FT 8'6''...........................................................53
53FT 9'0'' High Cube................................................53A
53FT 9'6'' High Cube................................................53B
53FT 8'0''..........................................................53S
53FT Any Height.....................................................53X
Container Type Codes
Not Applicable......................................................N/A
Atmosphere Control...................................................AC
Collapsible Flatrack.................................................CF
Drop Frame...........................................................DF
Flat Bed.............................................................FB
Flat Rack............................................................FR
Garment Container....................................................GC
Half-Height..........................................................HH
Hardtop..............................................................HT
Insulated............................................................IN
Open Top.............................................................OT
Dry..................................................................PC
Platform.............................................................PL
Reefer...............................................................RE
Tank.................................................................TC
Top Loader...........................................................TL
Trailer..............................................................TR
Vehicle Racks........................................................VR
Double-length Skid..................................................DSK
Double-length.......................................................DTB
Firkin..............................................................FIR
Flo-Bin.............................................................FLO
Frame...............................................................FRM
Flask...............................................................FSK
Forward Reel........................................................FWR
Garment on Hanger...................................................GOH
Heads of Beef.......................................................HED
Hogshead............................................................HGH
Hopper Car..........................................................HPC
Hopper Truck........................................................HPT
On Hanger/Rack in bx................................................HRB
Half-Standard Rack..................................................HRK
Half-Stand. Tote Bin................................................HTB
Jar.................................................................JAR
Keg.................................................................KEG
Kit.................................................................KIT
Knockdown Rack......................................................KRK
Knockdown Tote Bin..................................................KTB
Liquid Bulk.........................................................LBK
Lifts...............................................................LIF
Log.................................................................LOG
Loose...............................................................LSE
Lug.................................................................LUG
Lift Van............................................................LVN
Multi-roll Pak......................................................MRP
Noil................................................................NOL
Nested..............................................................NST
Pail................................................................PAL
Packed--NOS.........................................................PCK
Pieces..............................................................PCS
Pirns...............................................................PIR
Package.............................................................PKG
Platform............................................................PLF
Pipe Line...........................................................PLN
Pallet..............................................................PLT
Private Vehicle.....................................................POV
Pipe Rack...........................................................PRK
Quarters of Beef....................................................QTR
Rail (semiconductor)................................................RAL
Rack................................................................RCK
Reel................................................................REL
Roll................................................................ROL
Reverse Reel........................................................RVR
Sack................................................................SAK
Shook...............................................................SHK
Sides of Beef.......................................................SID
Skid................................................................SKD
Skid, Elev, Lift Trk................................................SKE
Sleeve..............................................................SLV
Spin Cylinders......................................................SPI
Spool...............................................................SPL
Tube................................................................TBE
[[Page 70380]]
Tote Bin............................................................TBN
Tank Car Rail.......................................................TKR
Tank Truck..........................................................TKT
Intermdl Trlr/Cntnr.................................................TLD
Tank................................................................TNK
Tierce..............................................................TRC
Trunk and Chest.....................................................TRK
Tray................................................................TRY
Trunk, Salesmen Samp................................................TSS
Tub.................................................................TUB
Unpacked............................................................UNP
Unit................................................................UNT
Vehicles............................................................VEH
Van Pack............................................................VPK
On Own Wheels.......................................................WHE
Wheeled Carrier.....................................................WLC
Wrapped.............................................................WRP
Not Applicable......................................................N/A
Shipment Stowage Location Codes
Not Applicable......................................................N/A
On Deck..............................................................OD
Bottom Stowage.......................................................BS
Hazard Codes
Not Applicable......................................................N/A
IMD Stow Category A...................................................A
IMD Stow Category B...................................................B
IMD Stow Category C...................................................C
IMD Stow Category D...................................................D
IMD Stow Category E...................................................E
Hazardous...........................................................HAZ
Non-Hazardous.......................................................NHZ
Stuffing/Stripping Modes
Not Applicable......................................................N/A
Mechanical.........................................................MECH
Hand Loading.......................................................HAND
FC.............................................Foreign Commodity Tariff
FR.................................................Foreign Rules Tariff
TM......................................................Terminal Tariff
SC....................................................Service Contracts
By the Commission:
Joseph C. Polking,
Secretary.
[FR Doc. 98-33701 Filed 12-18-98; 8:45 am]
BILLING CODE 6730-01-P
