[Federal Register Volume 64, Number 44 (Monday, March 8, 1999)]
[Rules and Regulations]
[Pages 11218-11234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5293]
[[Page 11217]]
_______________________________________________________________________
Part V
Federal Maritime Commission
_______________________________________________________________________
46 CFR Part 520
Carrier Automated Tariff Systems; Final and Interim Rule
Federal Register / Vol. 64, No. 44 / Monday, March 8, 1999 / Rules
and Regulations
[[Page 11218]]
FEDERAL MARITIME COMMISSION
46 CFR Part 520
[Docket No. 98-29]
Carrier Automated Tariff Systems
AGENCY: Federal Maritime Commission.
ACTION: Final rule and interim final rule.
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SUMMARY: The Federal Maritime Commission adds new regulations
establishing the requirements for carrier automated tariff systems in
accordance with the Shipping Act of 1984, as modified by Ocean Shipping
Reform Act of 1998 and section 424 of the Coast Guard Authorization Act
of 1998. As part of these rules, we are adopting as an interim final
rule the definition of motor vehicle which was not included in the
proposed rule.
DATES: This rule is effective May 1, 1999.
Comments on the interim final rule portion are due March 23, 1999.
ADDRESSES:Send comments on interim final rule portion to: Bryant L.
VanBrakle, Secretary, Federal Maritime Commission, 800 North Capitol
Street, N.W., Room 1046, Washington, D.C. 20573, (202) 523-5725.
FOR FURTHER INFORMATION CONTACT:
Austin L. Schmitt, Director, Bureau of Tariffs, Certification and
Licensing, Federal Maritime Commission, 800 North Capitol Street, N.W.,
Room 940, Washington, D.C. 20573, (202) 523-5796.
Thomas Panebianco, General Counsel, Federal Maritime Commission, 800
North Capitol Street, N.W., Room 1018, Washington, D.C. 20573, (202)
523-5740.
SUPPLEMENTARY INFORMATION: On December 21, 1998, the Federal Maritime
Commission (``FMC'' or ``Commission'') published a Notice of Proposed
Rulemaking in the Federal Register (63 FR 70368), proposing new
regulations to implement the changes made in the area of common carrier
tariffs by enactment of the Ocean Shipping Reform Act of 1998
(``OSRA''), Public Law 105-258, 112 Stat. 1902. OSRA amended the
Shipping Act of 1984 (``1984 Act''), 46 U.S.C. app. Sec. 1702 et seq.,
in several significant respects. Previously, common carriers and
conferences had to file their tariffs (i.e., the schedules of their
rates and charges) with the FMC's 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 OSRA). 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 received twenty-two comments on the Proposed Rule.
Commenters were: Cargo Brokers International, Inc. (``CBI''); Household
Goods Forwarders Association of America, Inc. (``HHGFAA''); China Ocean
Shipping (Group) Company (``COSCO''); Fruit Shippers Ltd.; Pacific
Coast Tariff Bureau (``PCTB''); Japan-United States Eastbound Freight
Conference (``JUSEFC''); Council of European & Japanese National
Shipowners' Associations (``CENSA''); Trans-Atlantic Conference
Agreement (``TACA''); North American Van Lines, Inc. (``NAI''); Matson
Navigation Company, Inc. (``Matson''); P&O Nedlloyd Limited (``P&O'');
National Industrial Transportation League (``NITL''); Bicycle Shippers'
Association, Inc. (``BSA''); Effective Tariff Management Corporation
(``ETM''); Ocean Carrier Working Group Agreement (``OCWG''); National
Association of Transportation Intermediaries (``NATI''); National
Customs Brokers & Forwarders Association of America, Inc. (``NCBFAA'');
American International Freight Association & Transportation
Intermediaries Association (``AIFA''); Plus Integration and World
Tariff Services (``WTS''); The Associated India/Pakistan Conferences
(``India Conferences''); Direct Container Line, Inc. (``DCL''); and
Transportation Tariff Publishers, Inc. (``TTP'').
General Comments
As a general matter, many commenters believe that the proposed rule
goes far beyond what is necessary to implement the prescriptions of
OSRA. CENSA contends that the rule imposes ``form and manner''
requirements, rather than requirements concerning the ``accessibility
and accuracy'' of tariffs. It believes that the rule will result in
elaborate and costly systems not warranted by the limited role tariffs
will play in the post-OSRA era and states that how a carrier chooses to
present its rates and terms of service should be dictated by market
demands and customer requirements. NAI likewise believes the proposed
rule far exceeds any requirements relating to accuracy and
accessibility and suggests that the Commission eliminate all portions
of the rule relating to tariff contents and format. Matson contends
that the cost and complexity of the rule goes beyond what is reasonable
and continues many ATFI requirements.
NITL notes that the Commission's role in overseeing new private
tariff systems has been significantly reduced and submits that the
Commission must eschew ``command and control'' type regulation and
instead rely on broad standards that seek general results. It believes
that a competitive market will achieve the desired result of accuracy
and accessibility.
OCWG also notes that the role of tariffs under OSRA will be reduced
in that the large majority of cargo will move under service contracts.
It contends that the maximum use of tariffs will occur only through a
minimum degree of regulation. OCWG suggests that there are two
components of accessibility: (1) can a user find and gain access to a
particular tariff; and (2) once in a tariff, can the user locate
specific tariff matter? It claims that the Commission's rule largely
perpetuates ATFI, even though many aspects of ATFI have been rendered
obsolete. Lastly, OCWG alleges that carriers will be forced to rely on
outside vendors to design and maintain tariffs and that a system to
meet the proposed requirements would cost $500,000 or more.
The Commission is not insensitive to many of these general concerns
raised by these commenters. It has accordingly kept them in mind while
addressing other, more specific comments in the proposed rule.
Section 520.2 Definitions
``Co-loading''--P&O contends that this definition should include a
provision that when an NVOCC tenders a co-loaded container to an ocean
common carrier it certify that all NVOCCs whose cargoes are co-loaded
have met all license, tariff and bonding requirements. P&O's concerns
are met by Sec. 515.27, which provides that no common carrier (e.g., an
NVOCC) may transport cargo for a shipper known to be an NVOCC unless
the carrier has determined that the NVOCC has a tariff and financial
responsibility required by sections 8 and 19 of the Act.
``Combination rate''--P&O suggests changing this term to ``multi-
factor through rate'' because combination rate is allegedly not a term
in general industry usage. We decline to adopt
[[Page 11219]]
P&O's suggestion, as the term ``combination rate'' has been defined and
is widely used in current tariffs. In light of the fact that many
carriers will simply carry over their current tariffs in their
automated systems, this may not be the appropriate time to change the
term.
``Commodity description''--P&O avers that the definition appears to
require the inclusion of all applicable assessorials, which would
undermine the ability of carriers to apply assessorials by rule without
notation to a specific TRI. ETM also contends that the requirement to
show all assessorials should be removed and that the requirement to
show commodity index entries is also redundant. The Commission has
adopted these suggestions and deleted the references to assessorials
and commodity index entries.
``Common carrier''--Fruit Shippers suggests that this definition
should be amended to include changes made by the Coast Guard
Authorization Act of 1998, Pub. L. 105-383. Inasmuch as the proposed
rule included this change, there is no need to amend this definition in
the final rule.
``Conference''--JUSEFC submits that the current definition of
conference should be retained since it substantially tracks the
definition in the 1984 Act. It further notes that the Commission did
not explain the reasons for the change, thereby making comment on it a
matter of speculation. P&O and OCWG also argue that the definition
should not be revised. The Commission will implement the definition as
proposed to comport with the definitions in parts 530 (service
contracts) and 535 (agreements). In that latter proceeding, the reasons
for proposing such a change were fully explicated.
``Forest products''--PCTB concedes that this definition reflects
Congressional intent. It nonetheless maintains that it needs some
examples or the Harmonized Codes for the new additions. The Commission
declines to adopt this suggestion. Examples or Harmonized Code
references are not provided elsewhere in the definitions, and would not
seem appropriate here.
``Harmonized system''--PCTB and WTS note that this definition only
refers to the codes for imports and that language should be added for
Schedule B, which applies to exports. The Commission agrees and has
modified the definition accordingly.
``Intermodal transportation''--P&O suggests that the word
``through'' be inserted between the words ``continuous'' and
``transportation.'' The Commission has incorporated this change in the
final rule.
``Joint rates''--P&O would change the term to ``joint through
rates'' to properly reflect how the cargo is moving. However, joint
rates involve ocean transportation over combined routes of two or more
common carriers, and could involve combination rates or through rates.
Moreover, the term is currently used widely in tariffs and will likely
be carried over to automated systems. It would also benefit from notice
and comment, and is not, therefore, adopted.
``Local rates''--P&O suggests that this term be changed to ``port
to port rates'' as better describing the service. However, we decline
to adopt this suggestion as port to port rates can be proportional
rates which are based on prior or subsequent movements, contrary to the
specific language of the definition, which states that local rates are
not contingent on prior or subsequent movements.
``Loyalty contract''--ETM contends that this definition should not
be restricted to deferred rebate arrangements, but should also include
special specific rates or discount provisions. However, the definition
in the proposed rule is consistent with the changes in the statutory
definition made by OSRA and will therefore remain unchanged.
``Motor vehicle''--The proposed rule did not contain a definition
for ``motor vehicle.'' However, OSRA's use of this term in section 8(a)
of the 1984 Act may have created some confusion in the industry. The
Commission has thus defined the term to include not only automobiles
but also trucks, vans and other motor vehicles used for the
transportation of passengers and cargo, but does not include equipment
such as farm or road equipment which has wheels but whose primary
purpose is other than transportation. This definition appears
consistent with the discussion in the Senate Report on S. 414. S. Rep.
No. 61, 105th Cong., 1st Sess. 22 (1997). Because this definition was
not included in the proposed rule, however, it will go into effect as
an interim final rule and interested parties will have an opportunity
to comment.
``Ocean common carrier''--PCTB notes that this definition is not
consistent with proposed Secs. 535.104(u) and 530.3(j). WTS also
suggests that the terms should be consistently applied throughout. The
Commission has retained the definition in the proposed rule, but
amended the service contract and agreement rules to achieve
consistency.
``Person''--P&O would like the Commission to make it clear that the
term ``person'' includes not only shippers, forwarders and the FMC, but
ocean common carriers as well. This suggestion does not appear to be
necessary. Ocean common carriers would fit within the ambit of the term
as it is currently defined.
``Single factor rate''--P&O would add a definition of ``single
factor rate'' to read ``the single amount charged by a common carrier
in connection with through transportation involving more than one mode
of service.'' This is essentially what the current definitions of
``through rate'' and ``through transportation'' do and is not,
therefore, necessary.
``Through rate''--P&O would amend this definition to read ``the
total amount charged by a common carrier in connection with multi-
factor or single-factor through transportation.'' This change is
unnecessary given that the Commission is not adopting P&O's other
suggested definitional changes relating to intermodal transportation.
``Thru date''--ETM suggests that this definition should be removed,
because all tariff changes can be accomplished with amendments without
the use of a thru date. While we agree that tariff changes may be
accomplished without the use of thru dates, there may be system reasons
for using them. The term will accordingly remain defined for any
carrier that chooses to use it.
P&O also suggests that definitions for ``demurrage,'' ``detention''
and ``free time'' should be added and suggests the definitions
appearing in the ANERA tariff. These terms presently appear to vary
considerably from carrier to carrier and can apply to either carrier
equipment or the cargo. We believe that they should continue to be
defined in the individual carrier's tariff and are unable to adopt
these suggestions at this time. At a minimum, they would warrant
additional notice and comment.
Section 520.3 Publication Responsibilities
JUSEFC and OCWG both contend that conference members should
continue to have the option of publishing their open rates either in a
conference tariff or their own tariffs. P&O further contends that
individual carriers should be permitted to publish their own
independent action rates and open rates.
Independent action rates are not presently permitted to be
published in individual carrier tariffs, unlike open rates. The
Commission believes that independent action rates should continue to be
published in a common conference tariff. Independent action
[[Page 11220]]
items change frequently and would be difficult to follow if they were
published in several different independent tariffs. Open rates, on the
other hand, are rates for commodities over which a conference has
relinquished ratemaking authority and thus more properly appear in
independent tariffs. The Commission is accordingly amending paragraph
(b) to indicate that conferences ``may'' publish open rates of their
members, and that alternatively, open rates may be published in
individual tariffs of conference members.
COSCO supports the Commission's publication on its website of the
locations of carriers' tariffs. PCTB likewise supports such a listing,
but suggests that the Commission adopt a specific, frequent periodic
basis for updates, e.g., weekly. While the Commission believes that it
may be possible to update this listing on a frequent basis, it is
reluctant to impose any such requirement by rule.
ETM submits that the Commission should clarify that the
notification required by paragraph (d) may be by mail, courier, or
facsimile. It further suggests that Form FMC-1 should appear on the
Commission's website as soon as possible and supports no fee for the
submission of the form. The Commission is amending paragraph (d) to
indicate that Form FMC-1 be submitted electronically via the
Commission's website. The Commission will design an interactive form by
which carriers can submit the requisite information.1 This
approach is consistent with our treatment of marine terminal operator
schedules. To the extent any carrier is unable to file pursuant to this
process, it can seek a waiver from the Director, Bureau of Tariffs,
Certification and Licensing (``BTCL'') to file by alternate means. In
addition, the Commission notes that existing entities operating as
common carriers or conferences may continue to use their current
organization numbers.
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\1\ Form FMC-1 will be operational by April 1, 1999. This
provides sufficient time for carriers to comply by May 1, 1999.
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BSA is concerned that the Commission may not be able to ensure that
carrier tariff homepages are properly updated and the validity of all
common carrier automated tariff systems. It asserts that more
definitive regulations addressing webpage security requirements are
needed to preserve the security and integrity of the tariff system as a
whole. The Commission appreciates these concerns. However, once
carriers have begun to operate under the new requirements, the
Commission will be in a better position to address these issues.
Section 520.4 Tariff Contents
PCTB supports the use of specific titles in paragraph (d) to
identify common rules appearing in most tariffs. It requests
clarification, however, that the Commission is not requiring the
numbering sequence used to display the rule titles in that paragraph.
ETM recommends that the ordering or numbering of the nineteen (19)
items should be at the option of the ``filer.'' WTS asserts that a
significant number of retrievers use standard rule numbers to retrieve
certain rules and contends that rule numbers should be mandated.
On the other hand, JUSEFC maintains that the required 19 rule
titles are rigid and deprive publishers of needed flexibility. It
suggests that a violation could occur from the omission of a single,
non-essential word and that publishers would be prohibited from
separating or consolidating tariff matter. JUSEFC further avers that
tariff publishers are in the best position to determine the most
effective way to present their tariff information. It concludes by
suggesting that tariff titles be recommended rather than mandatory.
JUSEFC's views have merit and, as a result, the Commission is
substantially amending paragraph (d). The nineteen subject areas for
which specific rule titles were required have been deleted. Carriers
simply have to publish any rule that affects the application of their
tariffs, but they are free to use any appropriate titles for their
rules.
NCBFAA states that the decision to encourage the use of the U.S.
Harmonized Tariff Schedule (``HTS'') is very helpful, and promotes
international acceptance of a common language. While supporting the
general content requirements for all tariffs, BSA also strongly
supports the FMC's encouraging the use of the U.S. HTS. DCL, on the
other hand, believes that listing commodities exclusively through the
U.S. HTS would be burdensome for NVOCCs. The Commission continues to
believe that use of the U.S. HTS would be beneficial to trade in
general. The proposed rule did not mandate use of the U.S. HTS. It
simply stated that carriers should use the U.S. HTS ``to the maximum
extent possible.'' However, in view of the comments, the final rule has
been reworded to indicate that, if carriers use numeric codes for
commodities, they are encouraged to use the U.S. HTS.
JUSEFC opposes the requirement in paragraph (e) that commodity
descriptions have a distinct 10-digit numeric code. It considers such a
requirement to be a carryover from ATFI, with no technological
justification, given the wide variety of software allegedly available.
Moreover, it contends that even under ATFI, 10-digit commodity
numbering was not necessary. Matson notes that it does not use a 10-
digit numbering system internally, and argues that it should be able to
use its internal numbering system which interacts with its other
systems. NITL opines that if a tariff uses a numeric code to identify a
commodity, there is no reason to require only a 10-digit code. As long
as a system permits a user to locate covered commodities, NITL sees no
reason for numeric codes at all. AIFA notes that NVOCCs often offer
rates for classes of commodities on a cubic meter basis, and that 10-
digit codes add a needless layer of complexity.
The carrier members of OCWG also oppose 10-digit codes for
commodities. They contend that any numeric code is not an indispensable
requisite for a tariff and that it is unclear how such codes would
assist users in locating specific tariff matter. They further suggest
that very few shippers will know the code, particularly when carriers
are free to use any system they wish.
In light of the above comments, the Commission is deleting the
requirement that a distinct 10-digit numeric code must be used for each
separate commodity in a tariff. Instead, the final rule will state that
numeric codes ``may'' be used, and that publishers are encouraged to
use the U.S. HTS. In addition, the definitions of ``commodity
description number'' and ``TRI number'' in Sec. 520.2 have been
modified to reflect this change.
P&O suggests that the very detailed requirements of what must be
included in a TRI are more detailed and complex than need be. In
particular, it points to item nine (9) in paragraph (f) as being
unclear and raises several questions about it. OCWG further submits
that item two (2) in paragraph (f) should be revised by adding the word
``(optional).'' The Commission has adopted these suggestions in the
final rule. Item 9 has been deleted, item seven (7) combined with item
six (6) (``rate and rate basis'') and item 2 has been modified to point
out that TRI numbers are optional.
COSCO has requested that the Commission clarify how
Sec. 520.4(e)(1) (commodity descriptions) would apply to a class rather
than a commodity tariff. The Commission notes that this issue was not
addressed under the ATFI rules, and that it was up to carriers and
conferences to develop their own rules
[[Page 11221]]
and practices under those circumstances. The Commission discerns no
reason to alter this situation under OSRA.
JUSEFC contends that Sec. 520.4(e)(3)(ii) will result in complex
additional programming to generate the list of TRIs applicable to every
indexed item as required separately by Sec. 520.6(c). It states that
the requirement appears to apply to ``viz'' lists, resulting in
thousands of unnecessary index entries. The Commission does not
consider it burdensome to require index entries for every commodity
listed in a commodity description. This should not preclude tariff
publishers from using commodity descriptions which are commercially
developed; if they include more than one commodity within a commodity
description, they simply have to show those commodities in the index.
Section 520.5 Standard Tariff Terminology
BSA supports the use of standardized codes as being consistent with
Congressional intent that tariff information and tariff publishing
systems be simplified and standardized. Further, BSA asserts that these
codes must be enforced by the Commission for all common carriers,
conferences and filing parties. NAI suggests two additional codes to
the ``packaging codes'': ``Knockdown Wood Crates (KWC)'' and ``Wood
Crates (WC).'' NITL, on the other hand, does not believe that standard
codes should be adopted, as they are likely to become quickly outdated.
JUSEFC maintains that there should be no prior approval for the use of
a code not on the list. OCWG argues that approved codes are a form and
manner requirement of the type the Commission no longer has authority
to issue. It further contends that the proposed terminology is not
commonly used in the industry by either shippers or carriers and that
standard codes only make sense when all tariffs are filed in the same
database.
The Commission continues to believe that the codes contained in the
Appendix are the types of standardization envisioned by Congress.
Moreover, we seriously doubt that the majority of codes will become
quickly outdated or are not used in the industry today. Nonetheless, in
light of the comments, the Commission has made several changes to
paragraph (a). References to ``approved codes'' have been deleted and
it has been clarified that the codes are intended to provide a
standard, terminology baseline. But, rather than have the Commission
consider additions to the Appendix on a case-by-case basis, the final
rule provides that tariff publishers may use additional codes, if they
are clearly defined in their tariffs.
PCTB notes that the National Imagery and Mapping Agency (``NIMA'')
gazeteer only covers foreign locations. It suggests the use of the
Geographic Names Information System (``GNIS'') for U.S. locations. The
Commission has adopted this suggestion in the final rule.
The majority of the commenters objected to the requirement that
locations in a tariff must appear in the NIMA gazeteer and ports in the
World Port Index (``WPI''). COSCO suggests that the Commission should
permit the use of new place names, if a carrier can demonstrate that
they are in current usage. CENSA would eliminate entirely the
requirement that foreign locations be identified with a relevant
gazeteer. This would purportedly enable carriers to use simpler tariff
structures. Matson likewise believes that NIMA geographic locations
should be eliminated, while P&O further objects to the WPI. NITL avers
that publishers should be free to use common, everyday names for ports
and locations, as long as they are clear. OCWG expresses similar
sentiments, questioning the need for standard location names in systems
that are all different, unlike ATFI. Moreover, it claims that the use
of standardized geographic names was required in ATFI because it was a
government database.
In light of these comments, the Commission has amended paragraph
(b) to make the use of NIMA, GNIS, or WPI advisory, rather than
mandatory. In addition, the rule has been clarified to permit
publishers to use geographic names that are currently in use but not
yet included in these publications.
Section 520.6 Retrieval of Information
BSA supports the proposed rule's requirement that tariffs provide
users with the ability to search for commodities by text or number
search. It further suggests that the Commission could require tariff
systems to search for various commodities by U.S. HTS or by a simple
description of the commodity in question. ETM suggests that paragraph
(a) be clarified to require a ``method of tariff selection.'' CENSA, on
the other hand, believes that the complex tariff searching mechanisms
are a burden. NITL also submits that the extensive search requirements
may not be necessary. It suggests that a comprehensive text search
capability, linked to a reference to the applicable basic ocean freight
rate and any applicable assessorials would meet shippers' needs for
accuracy and accountability. OCWG also asserts that the extensive
search requirements will require carriers to expend significant sums of
money and contends that tariffs can be searched by a much simpler
mechanism--a text search capability. It concludes that commodities and
rules could be located easily and quickly through ``key word'' searches
of a tariff. OCWG also notes that, without a requirement for numeric
commodity coding, there is no need for searches based on a 14-digit
TRI.
After further review, we believe that the capability to search for
tariff matter by text search appears to provide a sufficient degree of
accessibility to tariff users at this time. As a result, paragraphs
(a), (b), (c), and (d) have been amended in several aspects. Paragraph
(a) sets forth general search requirements for tariff systems as a
whole, while paragraph (b) limits searches for tariff matter to non-
case sensitive text searches. The requirement for direct rate search by
TRI number has been deleted. Paragraph (c) states that retriever
selection of a specific commodity from a commodity index list will
provide an option for searching for a rate. Lastly, paragraph (d)
provides a text search mechanism to locate objects within an object
group.
Paragraph (e) of the proposed rule required a minimum rate
calculation capability for tariffs--the basic ocean freight (to include
any adjustments to the basic ocean freight and inland rates for
combination rates) and a list of all applicable assessorial charges, by
rule number and charge title. NCBFAA supports this proposal, noting
that people accessing a tariff should be able to find the ``all-in''
cost by making a single inquiry. They further contend that this would
not require enormous programming expertise. NITL also supports the
proposal, stating that it is important that a tariff reveal a
calculated basic ocean freight rate and at least a list of all
applicable assessorial charges. It views this as the ``bottom-line''
requirement for tariff accuracy that the statute requires. BSA would
continue the ``bottom-line'' calculation capability currently found in
ATFI.
On the other hand, COSCO asserts that the minimum rate calculation
capability required by the proposed rule is just short of a bottom-line
calculation and would require a considerable investment in software.
Matson likewise believes that this capability would require a
substantial programming effort and would cost it at least $1.6 million
to develop. JUSEFC argues that the calculated basic ocean freight is
contrary to OSRA and should be deleted or made a recommended feature.
It questions why the Commission deems tariff users capable of reading
and
[[Page 11222]]
calculating all assessorials, but finds them unable to read and apply
rules pertaining to minimum quantities and quantity discounts. OCWG
asserts that the proposed rate calculation capability requires all the
functions of ATFI, except reaching a bottom-line rate, and would
require ATFI-like algorithms in private systems. The carriers further
contend that writing such algorithms and linking them to TRIs would be
complex, time-consuming and expensive and would require the use of
third party vendors. OCWG concludes by arguing that carriers should be
able to provide tariff users with the charges that apply without the
use of links or algorithms--by simply listing the charges that apply to
all shipments in text format.
Upon reconsideration, the Commission has amended paragraph (e) by
deleting the requirement for a calculated basic ocean freight and
instead will require a display of the basic ocean freight rate and a
list of all applicable assessorial charges. This will significantly
reduce the burdens for publishers while still satisfying the
requirements of OSRA. This paragraph further states that if other rules
or charges may be applicable to a shipment under certain circumstances,
the tariff shall so indicate. This approach should still enable a
shipper to ascertain all of the charges that will be applicable to a
particular shipment, without requiring carriers to engage in the
calculations necessary to arrive at a calculated basic ocean freight
rate.
OCWG has also proposed that the Commission eliminate the
requirement in paragraph (f) that all tariff matter display the
publication date and effective date. They argue that in a system with
no ``access-date capacity,'' these dates do not provide any useful
information. They further contend that matter appearing in a tariff as
accessed would by definition be effective and applicable and that only
newly filed tariff matter that has not yet become effective should show
an effective date.
The Commission declines to accept this suggestion. Under the final
rule, tariff systems will still have to provide access date capability
to retrievers. This means that tariff users will have access to data in
effect on a given date in the past and publication dates and effective
dates may be of interest to them. Moreover, a tariff system without
such information would make it virtually impossible for a shipper to
audit its transportation costs or for the Commission to ascertain
compliance with the requirements of the 1984 Act.
Section 520.7 Tariff Limitations
P&O suggests that the Commission should continue the existing
practice of permitting ninety (90) days for transition from an
individual tariff to a conference tariff. OCWG likewise states that new
conferences and new members of conferences should have 90 days to
publish their tariffs or begin participating in the conference tariff.
The Commission agrees and has amended paragraph (g) accordingly. In
addition, the Commission has added new language to indicate that
individual conference members may still publish their own separate
tariffs on open rates.
Proposed subsection (a)(3) prohibited cross-references to any other
tariffs, except a tariff of general applicability maintained by that
same carrier or conference. COSCO suggests that the Commission
reconsider this prohibition, and permit cross-referencing as long as
the other tariff is also available on-line. PCTB maintains that the
Commission should allow reference to general reference tariffs (e.g.,
IMO Dangerous Goods Code, Bureau of Explosives Tariffs), as is
currently permitted, if information is provided as to where such
tariffs are available for inspection. P&O also questions the reasons
for the prohibition and suggests that cross-referencing should be
allowed to ``another tariff to which the tariff's publisher is also the
publisher or a participating carrier.'' OCWG submits that the
prohibition should be eliminated or modified. It notes that in an
electronic environment, moving from one tariff to another is much
easier. At the least, it contends that cross-referencing for time/
volume rates should be allowed.
The Commission agrees with the general thrust of these comments. As
an initial matter, the cross-referencing prohibition has been limited
to ``rate'' tariffs. As a result, carriers can reference other
publications that are commonly used in the industry, such as general
reference tariffs. In addition, the exceptions to the prohibition have
been expanded to permit necessary cross-references occasioned by time/
volume rate situations.
In its general comments, OCWG noted that the proposed rule is
silent on how the Commission intends to deal with tariff matter that it
considers deficient. It believes that ground rules would be beneficial
for both the industry and the Commission's staff, and has suggested a
provision which would require the Commission to seek voluntary
correction of allegedly deficient tariff matter. The Commission has not
adopted this suggestion in the final rule. The Commission anticipates
that it will seek, under OSRA, voluntary correction of tariff matter
that is unclear, incomplete or not in accordance with applicable
statutory and regulatory requirements. However, the Commission does not
want to hold itself to such rigid requirement in all instances.
Section 520.8 Effective Dates
COSCO, a controlled carrier, claims that the 30-day advance notice
requirement for rate reductions in the bilateral trades will
disadvantage it, as it will be unable to offer short-notice rate
reductions to its customers, many of whom book small amounts of
containers at a time. It further contends that the Commission's
exemption in Petition No. P1-98 will not give it sufficient
flexibility, since it only allows COSCO to meet competitors' published
rates. COSCO thus urges the Commission to consider steps to mitigate
the damaging effects of the 30-day notice requirement.
The Commission is unable to take any measures in this rulemaking
proceeding to mitigate the effects of the 30-day notice requirement for
rate reductions by controlled carriers in the bilateral trades, since
such relief is outside the scope of this proceeding. Moreover, the
Commission questions the appropriateness of such relief, given the fact
that Congress consciously repealed the bilateral trade exemption when
passing OSRA.
BSA suggests that the Commission should require the effective date
of tariffs to be clearly stated on all published tariffs. While there
is nothing inherently wrong with such a requirement, its need may be
obviated by the fact that Sec. 520.6(f) requires all displays of
individual tariff matter to include an effective date. The Commission
declines at this time to adopt BSA's suggestion.
PCTB questions the omission of the word ``charge'' from paragraph
(a). It also requests clarification on whether a carrier introducing a
new service which has a charge, e.g., new outports subject to an
arbitrary charge, can do so without a 30-day delay. The Commission has
amended paragraph (a) to include the word ``charge.'' The Commission is
reluctant to conclude that the introduction of such a new service
should warrant across-the-board relief from the 30 days' notice
requirement. Carriers desiring relief can always seek special
permission pursuant to Sec. 520.14.
Section 520.9 Access to Tariffs
CENSA supports the access requirements via dial-up or the internet.
NATI, however, suggests that other
[[Page 11223]]
methods of access should be permitted, subject to Commission approval.
ETM claims that a static internet address limits a carrier's ability to
change systems or agents. ETM also suggests that proposed
Sec. 520.9(e)(3) should be amended to reflect that some carriers and
conferences will use systems of their agents. ETM also questions what a
reasonable fee should be and asks for confirmation that pricing
matrices will be acceptable. P&O again asks clarification that
``person'' includes ocean common carriers. It also raises the specter
of a large number of persons accessing a tariff slowing a site or
making it unaccessible to others. P&O suggests that publishers should
be free to terminate a connection that has not been active for 10
minutes. P&O also believes that the Commission should clarify that
carriers can provide access without user names or passwords, and at no
cost.
BSA expresses concern that the rules do not address the
unauthorized tampering of websites, resulting in misinformation, and
recommends that the FMC initiate an industry-wide forum to discuss and
address tariff security and integrity issues. It further recommends the
Commission adopt regulations aimed at persons who knowingly access and
tamper with the security and integrity of a tariff.
The Commission shares BSA's concerns about tariff security and
integrity. However, this rulemaking proceeding is not the proper forum
within which to address such issues. Integrity issues can be revisited
once the rules implementing OSRA have been in place and we have
experience under them. The Commission also notes that anyone seeking to
provide another method of access to tariffs could petition for a
rulemaking or an exemption. The Commission does not perceive a need to
adopt specific rules regarding the length of access-time that is
reasonable. We note, however, that in a situation when other potential
users are being denied access, it would not be unreasonable to
terminate inactive connections. There is no need to indicate that
carriers can provide access at no cost since they ``may'' assess a
reasonable fee. The Commission further notes that there is nothing
inherently suspect about pricing matrices. Lastly, the Commission has
amended paragraph (g) so that user identification and passwords must be
provided to the Commission only if the publisher requires them.
Section 520.10 Integrity of Tariffs
NCBFAA asserts that the five (5)-year data retention requirement in
paragraph (a) is critically important to parties who need it to recall,
track, and memorialize tariff information. COSCO accepts a requirement
for storing historical data for 5 years, but opposes on-line storage.
COSCO and Matson would like the ability to store historical data on
hard copies. Matson maintains that keeping tariffs available on-line is
beyond its current capabilities and that historical data is rarely
required by its customers. P&O suggests that data be maintained on-line
for one year, with back-up tapes or other acceptable storage medium for
four (4) years. NITL also finds the 5-year requirement overly
burdensome. It submits that a requirement that carriers furnish
historical data for 5 years without charge to a shipper upon request
should be sufficient. AIFA contends that the retention requirement will
present particular problems for NVOCCs, all of whose shipments will
move under tariff rates that will change often. DCL raises similar
concerns. OCWG asserts that there is nothing about retaining historical
data on-line that makes past or current data any more or less accurate.
They maintain that the Commission and shippers can gain access to
historical data off-line, by submitting a written request.
The Commission is pleased to see that all carriers accept the fact
that there is a need to maintain historical tariff data for 5 years.
The only issues are whether data can be stored off-line in some other
form and, if so, for how long. After fully weighing the comments, the
Commission concludes that a two (2)-year on-line access requirement
will meet its needs and those of the shipping public while the
remaining three (3) years may be kept off-line. The final rule has been
so modified. In addition, if data is retained in some other electronic
form, such data shall be made available to any person or the Commission
within a reasonable time. The Commission is not going to define
reasonable period of time at this moment, but expects carriers to
respond to all requests with due diligence. In addition, carriers will
be permitted to charge a reasonable fee for the provision of historical
data, not to exceed the fees for obtaining such data on-line, but
cannot charge any fees to federal agencies.
JUSEFC suggests that the written certification required by
paragraph (e) should be deleted as unnecessary. It contends that
carriers and conferences are sufficiently made responsible for the
content of their tariffs by the 1984 Act and other tariff regulations.
OCWG likewise contends that the certification serves no useful purpose.
The Commission nonetheless concludes that a certification
requirement serves a useful purpose under the 1984 Act, as amended by
OSRA. At the very least it serves as notice to a carrier or conference
that the information in its tariffs must be correct and remain
unaltered. Indeed, given the decision to permit off-line data
retention, this certification may take on even greater significance.
However, the Commission concludes that a written certification by an
officer filed with it may not be necessary. Instead, the purposes of
the proposed requirement can be met by publishing a similar statement
with the carrier's tariff record. Accordingly, Sec. 520.4(c) has been
amended to include the requisite statement.
ETM notes that paragraph (d) of the proposed rule requires carriers
to provide the Commission ``reasonable access'' to their automated
systems. It states, however, that systems will require periodic routine
maintenance, software upgrades and other actions that may affect
accessibility, and, as such, requests that the Commission define
``reasonable access.'' The Commission recognizes that publication
systems may require some down-time for the types of activities
envisioned by ETM. However, we do not believe that ``reasonable
access'' needs to be further limited or defined, at this point in time.
If problems arise during practice, the Commission can address them in a
subsequent rulemaking proceeding.
Section 520.11 Non-Vessel-Operating Common Carriers
CBI maintains that the requirement for cross-referencing on NVOCC
bills of lading under carrier-to-carrier agreements should be
eliminated, because there is no value-added service and it complicates
OTI operations. However, the Commission is unable to make such a change
at this time. The issue may be more appropriately raised in any overall
review of the co-loading rules that may occur once OSRA's implementing
regulations are complete.
AIFA asserts that NVOCCs need flexibility to publish extremely
simple electronic tariffs in a format best suited to their individual
operations. It suggests further that the Commission should conduct a
rulemaking to determine whether a full or partial exemption from tariff
filing is warranted for NVOCCs. DCL likewise contends that the true
solution is an NVOCC exemption from tariff filing. The Commission
believes that any such exemption is beyond the scope of this rulemaking
proceeding. To the extent that AIFA or others seek to invoke the
exemption authority under section 16 of the 1984 Act, as modified by
OSRA,
[[Page 11224]]
they should file a petition for exemption with appropriate
justification.
Section 520.12 Time/Volume Rates
OCWG endorses the proposed changes in Secs. 520.12(c) and (e), as
codifying existing Commission practice. It suggests, however, that
language should be added to paragraph (e) to clarify that carriers are
not precluded from rerating cargo in the event a shipper fails to
fulfill the minimum volume requirement of a time/volume rate. The
Commission agrees, and has added appropriate language to paragraph (e).
Section 520.13 Exemptions
HHGFAA points out an apparent clerical error in Sec. 520.13(c)(5),
that perpetuates a similar error in 46 C.F.R. Sec. 514.3(b)(5). It
notes that the intent of the exemption was to exempt ``civilian''
household goods moving under the International Household Goods Program
administered by the General Services Administration, and, therefore,
the adjective ``military'' should be deleted. The Commission agrees
with this suggestion and has accordingly amended Sec. 520.13(c)(5) in a
manner consistent with HHGFAA's comment.
NAI requests that the Commission clarify that the exemption in
Sec. 520.13(c)(3) only applies to rates filed with the Military Traffic
Management Command (``MTMC'') for shipments of used military household
goods and personal effects for the account of the Department of Defense
(``DOD''). NAI avers that this ``clarification'' is consistent with the
Commission's intent when it originally adopted the exemption in 1981.
Regardless of the merit to NAI's position in this matter, the
Commission could not make such a change without first according an
opportunity for comment to all potentially affected parties, including
DOD.
Section 520.14 Special Permission
ETM suggests that the Commission should define the terms
``reasonable promptness'' in paragraph (b) and ``prompt'' in paragraph
(d). The Commission does not agree. We need a certain degree of
flexibility in addressing special permission applications. The
Commission generally allows two weeks as reasonable, but does not wish
to be constrained by a prescribed time limit.
European Inland Movements
Another issue raised by the notice of proposed rulemaking was the
treatment of inland portions of through movements to Europe. The
Commission noted that the European Commission (``E.C.'') prohibited
conference tariffs which cover the movement of cargo to inland points
in Europe and questioned whether individual tariffs of conference
members covering European inland transport for the same customer
utilizing a conference tariff for the U.S.-Europe ocean movement, must
be published under the Act. The Commission noted that such publishing
would appear consistent with the statutory requirements of the Act, to
the extent they establish the European inland portion of a through rate
charged by a carrier in a U.S.-Europe intermodal movement.
CENSA believes that the elimination of many of the onerous
requirements in the proposed rule would reduce the burdens on carriers
publishing foreign inland rates. Alternatively, it suggests that the
Commission exempt foreign inland rates from these requirements. OCWG
likewise believes that if its proposals are adopted, they would
substantially reduce the burden of filing foreign inland rates. If its
recommendations are not adopted as a whole, OCWG suggests that the
Commission adopt one or more with respect to foreign inland rates,
e.g., exempt them from the 5-year on-line history requirement or
eliminate the requirement that foreign locations appear in gazetteers.
P&O suggests that the issue more appropriately should be whether
the FMC should continue to require the publication of inland rates
outside of the United States. Nonetheless, it agrees with the
Commission that a carrier's inland rates to/from points in Europe are
required to be published under the Act. It notes that under E.C.
requirements, carriers will be required to make inland rate tariffs
available to shippers and presumes that they will have to maintain
schedules of such charges. P&O concludes that the publication of
European inland rates would not appear to be overly burdensome or
expensive and urges the Commission not to consider any exemption as
part of this rulemaking.
TACA notes that the E.C. ``obligation'' (to make tariffs available
on request to transport users at reasonable cost or available for
examination at offices of shipping lines) applies only to vessel-
operating carrier members of liner conferences. It also notes that the
failure of a single member of a conference to comply with the
obligation could result in the withdrawal of the block exemption
afforded the conference as a whole. TACA further suggests that the
public tariff availability requirements of the obligation are similar
to the requirements imposed by the 1961 amendments to the Shipping Act,
1916 (P.L. 87-346, 75 Stat. 762).
TACA proposes, therefore, that the Commission should adopt the
identical requirements of the obligation with respect to public access
to tariff matter covering European inland transport of shipments, with
a prior or subsequent movement by sea between ports in Europe and the
U.S. It asserts that this would completely harmonize E.C. and U.S.
regulatory requirements, ensure unfettered public access to complete
and accurate relevant tariff material, and would substantially ease the
burdens and expenses of the proposed rules.
TACA's suggestion that the Commission accept tariff publication for
European inland movements in the same manner as required under the E.C.
obligation (i.e., available on request or at the offices of a carrier)
is a substantial deviation from the tariff publishing requirements
under the 1984 Act, as amended by OSRA. At the very least, such a
procedure could only be adopted after a full and complete exemption
hearing pursuant to section 16 of the 1984 Act. It would further appear
that the many substantive changes made to the proposed rule will
alleviate many of TACA's concerns with respect to the burdens of tariff
publishing for these particular movements. In addition, the Commission
has recently granted TACA and the U.S. South Europe Conference special
permission to cross-reference the tariffs of its individual members for
European inland movements, and the Commission will continue this
practice after May 1, 1999.
Transition Problems
Another issue that has been raised by several commenters is their
ability to implement new private automated tariff systems by May 1,
1999. P&O notes that it is unclear whether the transition from ATFI to
private systems can take effect without thirty (30) days advance
publication of the system and contends that, as a result, carriers
would in effect have 30 days to put their tariffs in place. OCWG raises
similar concerns and notes that a waiver of the 30 days' notice
requirement would only provide one additional month in which to design,
develop, test and populate automated systems. CENSA avers that only a
substantial reduction in the requirements will allow carriers to have
their systems in place by May 1, 1999.
In light of these concerns, commenters have suggested that the
Commission keep ATFI in place for various time periods, to permit a
smooth transition to private systems. COSCO and P&O suggest sixty (60)
days; OCWG
[[Page 11225]]
would extend ATFI until December 31, 1999; and ETM would have ATFI
continue until such time as the new systems are ready.
The Commission declines to accept this invitation to extend ATFI.
In this regard, we note that the various changes made to the proposed
rule should make the transition to private tariff systems considerably
easier. In addition, the Commission will give carriers an additional 30
days to meet the requirements of the rule by issuing blanket special
permission for new tariffs with no increases to go into effect without
the 30 days' advance notice requirement. Carriers should thus be able
to meet the reduced burdens occasioned by the rule by May 1, 1999.
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., the Chairman of the Federal Maritime Commission has certified to
the Chief Counsel for Advocacy, Small Business Administration, that the
rule will not have a significant impact on a substantial number of
small entities. In its Notice of Proposed Rulemaking, the Commission
stated its intention to certify this rulemaking because the amendments
will either have no affect on small entities, or in the case where the
amendments are likely to impact small entities, the economic impact
will be de minimis. The comments received did not dispute the
Commission's intention to so certify, and, therefore, the certification
is continued.
This regulatory action is not a ``major'' rule under 5 U.S.C.
804(2).
The Commission has received OMB approval for this collection of
information pursuant to the Paperwork Reduction Act of 1995, as
amended. In accordance with the Act, agencies are required to display a
currently valid control number. The valid control number for this
collection of information is 3072-0064.
List of Subjects in 46 CFR Part 520
Common carrier; Freight; Intermodal transportation; Maritime
carrier; Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Maritime
Commission adds Part 520 to Subchapter B, Chapter IV of 46 CFR as
follows:
Add part 520 to read as follows:
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 and exceptions.
520.14 Special permission.
520.91 OMB control number assigned pursuant to the Paperwork
Reduction Act.
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; and sec. 424 of Pub. L. 105-383, 112 Stat. 3411.
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 Public Law 105-258.
(b) Purpose. The requirements of this part are intended to permit:
(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.
Commodity description number means a number that may be 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
[[Page 11226]]
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 (``U.S. HTS''), based on the international Harmonized
System, administered by the U.S. Customs Service for the U.S.
International Trade Commission, and Schedule B, administered by the
U.S. Census Bureau.
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 axis, with
the inland rates specified at the matrix row and column intersections.
Intermodal transportation means continuous through 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.
Motor vehicle means an automobile, truck, van, or other motor
vehicle used for the transportation of passengers and cargo; but does
not include equipment such as farm or road equipment which has wheels,
but whose primary purpose is other than transportation.
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,
(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
[[Page 11227]]
(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 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.
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.
TRI number means a number that consists of the numeric commodity
code, if any, and a unique numeric suffix used to differentiate TRIs
within the same commodity description. TRI numbers are not required in
systems that do not use numeric commodity coding.
Through rate means the single amount charged by a common carrier in
connection with through transportation.
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 an ocean common 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 may publish any open rates offered by their members.
Alternatively, open rates may be published in individual tariffs of
conference 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 electronically submitting Form FMC-1 via the
Commission's website at www.fmc.gov. 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 list 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
[[Page 11228]]
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;
(7) Origination and destination scope; and
(8) A statement certifying that all information contained in the
tariff is true and accurate and no unlawful alterations will be
permitted.
(d) Tariff rules. Carriers and conferences shall publish in their
tariffs any rule that affects the application of the tariff.
(e) Commodity descriptions. (1) For each separate commodity in a
tariff, a distinct numeric code may be used. Tariff publishers are not
required to use any numeric code to identify commodities, but should
they choose to do so, they are encouraged to use the U.S. Harmonized
Tariff Schedule (``U.S. HTS'') for both the commodity coding and
associated terminology (definitions).
(2) If a tariff publisher uses a numeric code to identify
commodities, 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.
(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 (optional);
(3) Publication date;
(4) Effective date;
(5) Origin and destination locations or location groups;
(6) Rate and rate basis; and
(7) Service code.
(g) Location groups. In the primary tariff, or in a governing
tariff, a publisher may 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 contains
codes for rate bases, container sizes, service, etc., and units for
weight, measure and distance. They are intended to provide a standard
terminology baseline for tariffs to facilitate retriever efficiency.
Tariff publishers may use additional codes, if they are clearly defined
in their tariffs.
(b) Geographic names. Tariffs should employ locations (points) that
are published in the National Imagery and Mapping Agency (``NIMA'')
gazetteer or the Geographic Names Information System (``GNIS'')
developed by the U.S. Geological Survey. Ports published or approved
for publication in the World Port Index (Pub. No. 150) should also be
used in tariffs. Tariff publishers may use geographic names that are
currently in use and have not yet been included in these publications.
Sec. 520.6 Retrieval of information.
(a) General. Tariffs systems shall present retrievers with the
ability to:
(1) Search for commonly understood tariff objects (e.g.,
commodities, origins, destinations, etc.) without restricting such
search to a specific tariff;
(2) Search a tariff for a rate on the basis of origin, destination
and commodity;
(3) Employ a tariff selection option; or
(4) Select an object group (e.g., rules, locations, groups, etc.)
within a particular tariff.
(b) Search capability. Tariffs shall provide the capability to
search for tariff matter by non-case sensitive text search. Text search
matches for commodity descriptions should result in a commodity or
commodity index list.
(c) Commodities and TRIs. Retriever selection of a specific
commodity from a commodity index list shall display the commodity
description and provide an option for searching for a rate (e.g., on
[[Page 11229]]
the basis of origin/destination) or a TRI list, if multiple TRIs are in
effect for the commodity.
(d) Object groups. Retriever selection of a specific object group
shall result in a list of the objects within the group or present a
text search mechanism to allow location of an object within the group.
For example, selection of the rules object group would present a list
of the rules or a text search mechanism for locating specific terms or
phrases within the rules.
(e) Basic ocean freight. The minimum rate display for tariffs shall
consist of the basic ocean freight rate and a list of all assessorial
charges that apply for the retriever-entered shipment parameters. If
other rules or charges may be applicable to a shipment under certain
circumstances, the tariff shall so indicate.
(f) Displays. All displays of individual tariff matter shall
include the publication date, effective date, amendment code (as
contained in Appendix A of 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 rate tariffs, except:
(i) A tariff of general applicability maintained by that same
carrier or conference,
(ii) The individual tariffs of members of a non-conference
agreement to enter into time/volume rates may cross-reference the
tariffs of other members for purposes of said time/volume rates, and
(iii) Multiple common tariffs of a conference agreement to enter
into time/volume rates may cross-reference their own multiple
conference tariffs for purposes of said time/volume rates; and
(4) Not duplicate or conflict with any other tariff publication.
(b) Notice of cancelation. Carriers and conferences shall inform
BTCL, in writing, whenever a tariff is canceled and the effective date
of that cancelation.
(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 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, within ninety (90) days of membership in the conference.
Individual conference members may publish their own separate open rate
tariffs. Admission to the conference may be effective on the date
notice is published in the conference tariff.
(2) New conference agreements have ninety (90) days within which to
publish a new tariff.
(g) Overcharge claims. (1) No tariff may limit the filing of
overcharge claims with a common carrier to a period of less than three
(3) 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 (1) 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, charge, or change in an
existing rate, that results in an increased cost to a shipper may
become effective earlier than thirty (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 rates, 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:
[[Page 11230]]
(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.
(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, if they require such
identifications and passwords.
Sec. 520.10 Integrity of tariffs.
(a) Historical data. Carriers and conferences shall maintain the
data that appeared in their tariff publication systems for a period of
five (5) years from the date such information is superseded, canceled
or withdrawn, and shall provide on-line access to such data for two (2)
years. After two (2) years, such data may be retained on-line or in
other electronic form, and shall be made available to any person or the
Commission upon request in a reasonable period of time. Carriers and
conferences may charge a reasonable fee for the provision of historical
data, not to exceed the fees for obtaining such data on-line. No fee
shall apply to federal agencies.
(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.
(d) Access to systems. Carriers and conferences shall provide the
Commission reasonable access to their automated systems and records in
order to conduct reviews.
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 Commission's
Secretary 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.
[[Page 11231]]
(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 5 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. Carriers and agreements shall rerate cargo moved at the
applicable tariff rate, if a shipper fails to meet the requirements of
the time/volume offer.
Sec. 520.13 Exemptions and exceptions.
(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 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 motor
vehicles, 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.
(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 household goods and personal effects by ocean
transportation intermediaries shipped for 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.
[[Page 11232]]
(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''.
Sec. 520.91 OMB control number assigned pursuant to the Paperwork
Reduction Act.
The Commission has received OMB approval for this collection of
information pursuant to the Paperwork Reduction Act of 1995, as
amended. In accordance with the Act, agencies are required to display a
currently valid control number. The valid control number for this
collection of information is 3072-0064.
Appendix A to Part 520--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.--Unit Codes
------------------------------------------------------------------------
------------------------------------------------------------------------
A. Weight Units:
Kilograms.................................. KGS
1000 Kgs (Metric Ton)...................... KT
Pounds..................................... LBS
Long Ton (2240 LBS)........................ LT
Short Ton (2000 LBS)....................... ST
B. Volume Units:
Cubic meter................................ CBM
Cubic feet................................. CFT
C. Length Units:
Centimeters................................ CM
Feet....................................... FT
Inches..................................... IN
Meters..................................... M
D. Measure Board Feet:
Thousand Board Feet........................ MBF
E. Distance Units:
Kilometers................................. KM
Miles...................................... MI
F. Rate Basis:
Ad Valorem................................. AV
Each....................................... EA
Lump Sum................................... LS
Measure.................................... M
Thousand Board Feet........................ MBF
Per Container.............................. PC
Weight..................................... W
Weight/Measure............................. WM
G. Container Size Codes:
Not Applicable............................. N/A
Less Than Load............................. LTL
10 FT Any Height........................... 10X
20 FT 8'6''................................ 20
20 FT 9'0'' High Cube...................... 20A
20 FT 9'6'' High Cube...................... 20B
20 FT 8'0''................................ 20S
20 FT Any Height........................... 20X
24 FT 8'6''................................ 24
24 FT 9'0'' High Cube...................... 24A
24 FT 9'6'' High Cube...................... 24B
24 FT 8'0''................................ 24S
24 FT Any Height........................... 24X
35 FT 8'6''................................ 35
35 FT 9'0'' High Cube...................... 35A
35 FT 9'6'' High Cube...................... 35B
35 FT 8'0''................................ 35S
35 FT Any Height........................... 35X
40 FT 8'6''................................ 40
[[Page 11233]]
40 FT 9'0'' High Cube...................... 40A
40 FT 9'6'' High Cube...................... 40B
40 FT 8'0''................................ 40S
40 FT Any Height........................... 40X
42 FT 8'6''................................ 42
42 FT 9'0'' High Cube...................... 42A
42 FT 9'6'' High Cube...................... 42B
42 FT 8'0''................................ 42S
42 FT Any Height........................... 42X
43 FT 8'6''................................ 43
43 FT 9'0'' High Cube...................... 43A
43 FT 9'6'' High Cube...................... 43B
43 FT 8'0''................................ 43S
43 FT Any Height........................... 43X
45 FT 8'6''................................ 45
45 FT 9'0'' High Cube...................... 45A
45 FT 9'6'' High Cube...................... 45B
45 FT 8'0''................................ 45S
45 FT Any Height........................... 45X
48 FT 8'6''................................ 48
48 FT 9'0'' High Cube...................... 48A
48 FT 9'6'' High Cube...................... 48B
48 FT 8'0''................................ 48S
48 FT Any Height........................... 48X
53 FT 8'6''................................ 53
53 FT 9'0'' High Cube...................... 53A
53 FT 9'6'' High Cube...................... 53B
53 FT 8'0''................................ 53S
53 FT Any Height........................... 53X
H. 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
I. Container Temperature Codes:
Not Appl/Operating......................... N/A
Artificial Atmo Ctrl....................... AC
Chilled.................................... CLD
Frozen..................................... FRZ
Heated..................................... HTD
Refrigerated............................... RE
Ventilated................................. VEN
J. Packaging Codes:
Bag........................................ BAG
Bale....................................... BAL
Bar........................................ BAR
Barrel..................................... BBL
Bundle..................................... BDL
Beam....................................... BEM
Bing Chest................................. BIC
Bin........................................ BIN
Bulk....................................... BLK
Bobbin..................................... BOB
Box........................................ BOX
Barge...................................... BRG
Basket/Hamper.............................. BSK
Bushel..................................... BUS
Box, with Inner Cntn....................... BXI
Bucket..................................... BXT
Cabinet.................................... CAB
Cage....................................... CAG
Can........................................ CAN
Carrier.................................... CAR
Case....................................... CAS
Cntnrs of Bulk Cargo....................... CBC
Carboy..................................... CBY
Can Case................................... CCS
Cheeses.................................... CHE
Core....................................... COR
Cradle..................................... CRD
Crate...................................... CRT
Cask....................................... CSK
Carton..................................... CTN
Cylinder................................... CYL
Dry Bulk................................... DBK
Double-length Rack......................... DRK
Drum....................................... DRM
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 Wood Crates...................... KWC
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
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
Wood Crates................................ WC
Wrapped.................................... WRP
Not Applicable............................. N/A
K. Shipment Stowage Location Codes:
Not Applicable............................. N/A
On Deck.................................... OD
Bottom Stowage............................. BS
L. 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
M. Stuffing/Stripping Modes:
Not Applicable............................. N/A
Mechanical................................. MECH
Hand Loading............................... HAND
N. Inland Transportation Modes:
Not Applicable............................. N/A
Motor...................................... M
Rail....................................... R
Barge...................................... B
Motor/Rail................................. MR
Rail/Motor................................. RM
Motor/Barge................................ MB
Barge/Motor................................ BM
Rail/Barge................................. RB
Barge/Rail................................. BR
O. Shipment Service Types:
Barge...................................... B
Door....................................... D
House...................................... H
Motor...................................... M
Ocean Port................................. O
Pier....................................... P
Rail Yard.................................. R
Container Station.......................... S
Terminal................................... T
Container Yard............................. Y
Rail Siding................................ U
Team Tracks................................ X
P. Freight Forwarder/Broker Type Codes:
Not Applicable............................. N/A
Freight Forwarder.......................... FF
Customs House Broker....................... CB
Other...................................... OTH
Q. Tariff Type Codes:
Bill of Lading Tariff..................... BL
Equipment Interchange Agreement Tariff..... EI
[[Page 11234]]
Essential Terms Publication................ ET
Foreign Commodity Tariff................... FC
Foreign Rules Tariff....................... FR
Terminal Tariff............................ TM
Service Contracts.......................... SC
------------------------------------------------------------------------
By the Commission.*
---------------------------------------------------------------------------
* Commissioner Moran voted nay on section 520.4(c)(8).
---------------------------------------------------------------------------
Bryant L. VanBrakle,
Secretary.
[FR Doc. 99-5293 Filed 3-5-99; 8:45 am]
BILLING CODE 6730-01-P
