[Federal Register Volume 63, Number 242 (Thursday, December 17, 1998)]
[Proposed Rules]
[Pages 69603-69606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33366]
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FEDERAL MARITIME COMMISSION
46 CFR Part 525
[Docket No. 98-27]
Marine Terminal Operator Schedules
AGENCY: Federal Maritime Commission.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: The Federal Maritime Commission proposes to add new
regulations for marine terminal operator schedules in accordance with
the Shipping Act of 1984, as amended by the Ocean Shipping Reform Act
of 1998 and the Coast Guard Authorization Act of 1998.
DATES: Submit comments on or before January 19, 1999.
ADDRESSES: Address all comments concerning this proposed rule to:
Joseph C. Polking, Secretary, Federal Maritime Commission, 800 North
Capitol St., N.W. Room 1046, Washington, D.C. 20573-0001.
FOR FURTHER INFORMATION CONTACT:
Bryant VanBrakle, Director, Bureau of Tariffs, Certification and
Licensing, Federal Maritime Commission, 800 North Capitol St., N.W.
Room 940, Washington, D.C. 20573-0001, (202) 523-5796
Thomas Panebianco, General Counsel, Federal Maritime Commission, 800
North Capitol St., N.W. Room 1018, Washington, D.C. 20573-0001, (202)
523-5740
SUPPLEMENTARY INFORMATION: The Ocean Shipping Reform Act of 1998
(``OSRA''), Pub. L. 105-258, 112 Stat. 1902, and the Coast Guard
Authorization Act of 1998, Sec. 424 of Pub. L. 105-383, 112 Stat. 3411,
amend the Shipping Act of 1984 (``1984 Act''), 46 U.S.C. app. Sec. 1701
et seq., in several areas relating to marine terminal operators
(``MTO(s)''). The Federal Maritime Commission (``Commission'') proposes
new regulations, 46 CFR part 525, which would implement changes made by
OSRA to sections 3(15), 8(f), 8(g) and 10(d) of the 1984 Act.
New 46 CFR part 525
Proposed Sec. 525.1 implements OSRA's revision of section 3(15) of
the 1984 Act by redesignating that section as 3(14) and amending the
definition of MTO to extend Commission jurisdiction over those MTOs who
furnish terminal services or facilities in connection with a common
carrier and a water carrier subject to Subchapter II of Chapter 135 of
Title 49, United States Code. That is, the Commission will have
jurisdiction over an MTO who serves mixed commerce, i.e., international
and domestic, rather than only those MTOs who solely serve
international commerce.
In addition, the proposed rule would implement OSRA's new section
(8)(f) of the 1984 Act. This section provides MTOs with the option of
making their schedules of rates, regulations, and practices available
to the public by publication in a terminal schedule, subject to section
10(d) of the 1984 Act, as amended by OSRA. The 1984 Act does not
currently mandate MTO tariff filing, but it is required under
[[Page 69604]]
Commission regulations. 46 CFR 514.1(c)(3)(i). Thus, under OSRA, MTOs
will no longer be required to file their tariffs with the Commission.
This option of making MTO schedules available to the public is
reflected in proposed Sec. 525.2.
Section 8(f) of OSRA also provides that terminal schedules may
include limitations of liability, subject to section 10(d), for cargo
loss or damage pertaining to receiving, delivering, handling or storing
property at the terminal. As explained in the legislative history, such
limitation of liability must be consistent with domestic law and
international agreements and conventions adopted by the United States.
S. Rep. No. 105-61, 105th Cong., 1st Sess., at 25 (1997) (``Report'').
The Commission does not interpret this reference to limitations of
liability as an implied endorsement of the validity of any such claims,
which remain subject, inter alia, to the proscriptions of section 10(d)
of the 1984 Act against unjust and unreasonable practices; the 1984 Act
merely authorizes the publication of any asserted limitations in the
terminal schedule. This is also reflected in proposed Sec. 525.2(a)(1).
OSRA further provides in section 8(f) that, if a terminal schedule
is made available by an MTO, it will be enforceable in an appropriate
court as an ``implied contract'' between the MTO and the party in
receipt of the MTO's services. This provision ensures that MTOs are
``promptly and fairly compensated for the services they provide to
waterborne commerce.'' Report at 25. The Report language further
explains that the MTO need not prove, as part of its claim to enforce
the terminal schedule as an implied contract, that the party receiving
the terminal services had actual knowledge of the provisions of that
schedule. Id. However, any actual contract that exists between an MTO
and another party for terminal services would supersede a terminal
schedule made available by the MTO that covers those same services, and
such a terminal schedule would not be enforceable as an implied
contract. Id. The existence of an actual contract, in any event, would
not relieve the MTO from liability for violations of the 1984 Act,
particularly section 10(d), which prohibits an MTO from discriminating
against a common carrier or an ocean tramp or from giving any undue or
unreasonable preference or advantage or imposing any undue or
unreasonable prejudice or disadvantage with respect to any person. This
is reflected in proposed Sec. 525.2.
In addition, section 8(g) of OSRA authorizes the Commission to
prescribe, by regulation, the form and manner in which MTO schedules
are published. Proposed Sec. 525.3 implements this section by
delineating how the MTOs shall make their terminal schedules
``available.'' The proposed rule requires that any terminal schedule
that is made available to the public shall be available at a reasonable
charge, if any, and during normal business hours. Neither OSRA nor the
Report, however, provide whether those schedules should be published in
either electronic or paper form. In accordance with the Commission's
authority to prescribe form and manner, the proposed rule requires all
schedules to be published in electronic form. It appears that requiring
the schedules to be published in electronic form would not be a
hardship on MTOs who currently must file their tariffs in an electronic
form with the Commission, and would provide meaningful access to the
public. The Commission specifically requests comments on whether there
is a compelling reason for or against allowing MTOs to publish their
terminal schedules in paper form as an alternative means of
publication.
All MTOs must notify the Commission of the location of any
published terminal schedules by May 1, 1998. Such notification shall be
accomplished by submitting Form FMC-1 to the Commission's Bureau of
Tariffs, Certification and Licensing. The Commission specifically
requests comments on whether that form should be filed in paper format
or in electronic format on the Commission's website at www.fmc.gov. The
Commission is also considering publishing a list of the locations of
the terminal schedules on its website. The Commission specifically
requests comments on its proposal to publish this list on the website.
In addition, any terminal schedule must contain the form and manner
requirements in proposed Sec. 525.3(g).
Finally, in order to enforce the prohibited acts of section 10(d),
MTOs must maintain in their offices a complete and current set of their
terminal schedules for a period of five (5) years, whether or not made
available to the public, and shall promptly make such schedules
available to the Commission upon request. This is reflected in proposed
Sec. 525.3.
The Chairman of the Commission hereby certifies, pursuant to 605 of
the Regulatory Flexibility Act, 5 U.S.C. 605, that the proposed rules
will not, if promulgated, have a significant economic impact on a
substantial number of small entities. The affected universe of parties
is limited to marine terminal operators. The Commission has determined
that these entities do not come under the programs and policies
mandated by the Small Business Regulatory Enforcement Fairness Act as
they typically exceed the threshold figures for number of employees
and/or annual receipts to qualify as a small entity under Small
Business Administration guidelines.
The reporting and disclosure requirements contained in this
proposed rule have been submitted to the Office of Management and
Budget (OMB). Public burden for this collection of information is
estimated to average 5 hours per response. This estimate includes, as
applicable, the time needed to review instructions, develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to respond to a
collection of information, search existing data sources, gather and
maintain the data needed, and complete and review the collection of
information; and transmit or otherwise disclose the information.
Send comments regarding the burden estimate to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Attention Desk Officer for the Federal Maritime Commission, New
Executive Office Building, 725 17th Street, N.W., Washington, D.C.
20503, within 30 days of publication in the Federal Register.
The Commission would also like to solicit comments to: (a) evaluate
whether the proposed collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information will have practical utility; (b) evaluate the accuracy
of the Commission's burden estimates for the proposed collection of
information; (c) enhance the quality, utility, and clarity of the
information to be collected; and (d) minimize the burden of the
collections of information on respondents, including through the use of
automated collection techniques or other forms of information
technology. Comments submitted in response to this proposed rulemaking
will be summarized and/or included in the final rule and will become a
matter of public record.
[[Page 69605]]
List of Subjects in 46 CFR Part 525
Freight, Harbors, Reporting and recordkeeping requirements,
Warehouses.
For the reasons discussed in the preamble, the Federal Maritime
Commission proposes to add part 525 to subchapter B, chapter IV of 46
CFR as follows:
PART 525--MARINE TERMINAL OPERATOR SCHEDULES
Sec.
525.1 Purpose and scope.
525.2 Terminal schedules.
525.3 Availability of marine terminal operator schedules.
Authority: 46 U.S.C. app. 1702, 1707, 1709, as amended by Pub.
L. 105-258, 112 Stat. 1902, and Pub. L. 105-383, 112 Stat. 3411.
Sec. 525.1 Purpose and scope.
(a) Purpose. This part implements the Shipping Act of 1984, as
amended by the Ocean Shipping Reform Act of 1998 and the Coast Guard
Authorization Act of 1998. The form and manner requirements of this
part are necessary to enable the Commission to meet its
responsibilities with regard to identifying and preventing unreasonable
preference or prejudice and unjust discrimination pursuant to section
10 of the Act.
(b) Scope. This part sets forth the regulations for the publication
of terminal schedules by marine terminal operators. Information made
available under this part may be used to determine marine terminal
operators' compliance with shipping statutes and regulations.
(c) Definitions. The following definitions apply to the regulations
of this part:
(1) Act means the Shipping Act of 1984, as amended by the Ocean
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of
1998.
(2) Bulk cargo means cargo that is loaded and carried in bulk
without mark or count.
(3) Checking means the service of counting and checking cargo
against appropriate documents for the account of the cargo or the
vessel, or other person requesting same.
(4) Commission means the Federal Maritime Commission.
(5) Dockage means the charge assessed against a vessel for berthing
at a wharf, pier, bulkhead structure, or bank or for mooring to a
vessel so berthed.
(6) Effective date means the date a schedule or an element of a
schedule becomes effective. Where there are multiple publications on
the same day, the last schedule or element of a schedule published with
the same effective date is the one effective for that day.
(7) Expiration date means the last day, after which the entire
schedule or a single element of the schedule, is no longer in effect.
(8) 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.
(9) Free time means the period specified in the terminal schedule
during which cargo may occupy space assigned to it on terminal
property, including off-dock facilities, free of wharf demurrage or
terminal storage charges immediately prior to the loading or subsequent
to the discharge of such cargo on or off the vessel.
(10) Handling means the service of physically moving cargo between
point of rest and any place on the terminal facility, other than the
end of ship's tackle.
(11) Heavy lift means the service of providing heavy lift cranes
and equipment for lifting cargo.
(12) Loading and unloading means the service of loading or
unloading cargo between any place on the terminal and railroad cars,
trucks, lighters or barges or any other means of conveyance to or from
the terminal facility.
(13) Marine terminal operator means a person engaged in the United
States or a commonwealth, territory, or possession thereof, in the
business of furnishing wharfage, dock, warehouse or other terminal
facilities in connection with a common carrier, or in connection with a
common carrier and a water carrier subject to Subchapter II of Chapter
135 of Title 49, United States Code. A marine terminal operator
includes, but is not limited to, terminals owned or operated by states
and their political subdivisions; railroads who perform port terminal
services not covered by their line haul rates; common carriers who
perform port terminal services; and warehousemen who operate port
terminal facilities.
(14) Organization name means an entity's name on file with the
Commission and for which the Commission assigns an organization number.
(15) Person includes individuals, firms, partnerships,
associations, companies, corporations, joint stock associations,
trustees, receivers, agents, assignees and personal representatives.
(16) Rate means a price quoted in a schedule for providing a
specified level of marine terminal service or facility for a stated
cargo quantity, on and after a stated effective date or within a
defined time frame.
(17) Schedule means a publication containing the actual rates,
charges, classifications, regulations and practices of a marine
terminal operator. The term ``practices'' refers to those usages,
customs or modes of operation which in any way affect, determine or
change the rates, charges or services provided by a marine terminal
operator.
(18) Terminal facilities means one or more structures comprising a
terminal unit, which include, but are not limited to, wharves,
warehouses, covered and/or open storage spaces, cold storage plants,
cranes, grain elevators and/or bulk cargo loading and/or unloading
structures, landings, and receiving stations, used for the
transmission, care and convenience of cargo and/or passengers in the
interchange of same between land and water carriers or between two
water carriers.
(19) Terminal services includes checking, dockage, free time,
handling, heavy lift, loading and unloading, terminal storage, usage,
wharfage, and wharf demurrage, as defined in this section. The
definitions of terminal services set forth in this section shall be set
forth in terminal schedules, except that other definitions of terminal
services may be used if they are correlated by footnote, or other
appropriate method, to the definitions set forth herein. Any additional
services which are offered shall be listed and charges therefor shall
be shown in the terminal schedule.
(20) Terminal storage means the service of providing warehouse or
other terminal facilities for the storage of inbound or outbound cargo
after the expiration of free time, including wharf storage, shipside
storage, closed or covered storage, open or ground storage, bonded
storage and refrigerated storage.
(21) Usage means the use of terminal facility by any rail carrier,
lighter operator, trucker, shipper or consignee, its agents, servants,
and/or employees, when it performs its own car, lighter or truck
loading or unloading, or the use of said facilities for any other
gainful purpose for which a charge is not otherwise specified.
(22) Wharf demurrage means a charge assessed against cargo
remaining in or on terminal facilities after the expiration
[[Page 69606]]
of free time, unless arrangements have been made for storage.
(23) Wharfage means a charge assessed against the cargo or vessel
on all cargo passing or conveyed over, onto, or under wharves or
between vessels (to or from barge, lighter, or water), when berthed at
wharf or when moored in slip adjacent to wharf. Wharfage is solely the
charge for use of wharf and does not include charges for any other
service.
Sec. 525.2 Terminal schedules.
(a) Marine terminal operator schedules. A marine terminal operator,
at its discretion, may make available to the public, subject to section
10(d) of the Act, a schedule of its rates, regulations, and practices.
(1) Limitations of liability. Any limitations of liability for
cargo loss or damage pertaining to receiving, delivering, handling, or
storing property at the marine terminal contained in a terminal
schedule must be consistent with domestic law and international
conventions and agreements adopted by the United States; such terminal
schedules cannot contain provisions that exculpate or relieve marine
terminal operators from liability for their own negligence, or that
impose upon others the obligation to indemnify or hold-harmless the
terminals from liability for their own negligence.
(2) Enforcement of terminal schedules. Any schedule that is made
available to the public by the marine terminal operator shall be
enforceable by an appropriate court as an implied contract between the
marine terminal operator and the party receiving the services rendered
by the marine terminal operator, without proof that such party has
actual knowledge of the provisions of the applicable terminal schedule.
(3) Contracts for terminal services. If the marine terminal
operator has an actual contract with a party covering the services
rendered by the marine terminal operator to that party, an existing
terminal schedule covering those same services shall not be enforceable
as an implied contract.
(b) Cargo types not subject to this part. (1) Except as set forth
in paragraph (b)(2) of this section, this part does not apply to bulk
cargo, forest products, recycled metal scrap, new assembled motor
vehicles, waste paper and paper waste in terminal schedules.
(2) Marine terminal operators which voluntarily make available
terminal schedules covering any of the commodities identified in
paragraph (b)(1) of this section thereby subject their services with
respect to those commodities to the requirements of this part.
(c) Marine terminal operator agreements. The regulations relating
to agreements to which a marine terminal operator is a party are
located at part 535 of this chapter.
Sec. 525.3 Availability of marine terminal operator schedules.
(a) Availability of terminal schedules. (1) Availability to the
Commission. A complete and current set of terminal schedules used by a
marine terminal operator, or to which it is a party, shall be
maintained in its office(s) for a period of five (5) years, whether or
not made available to the public, and shall promptly be made available
to the Commission upon request.
(2) Availability to the public. Any terminal schedule that is made
available to the public shall be available during normal business hours
and in electronic form. The public may be assessed a reasonable
nondiscriminatory charge for access to the terminal schedules; no
charge will be assessed against the Commission.
(b) Access to electronically published schedules. Marine terminal
operators shall provide access to their terminal schedules via a
personal computer (PC) by:
(1) Dial-up connection via public switched telephone networks
(PSTN); or
(2) The Internet (Web) by:
(i) Web browser; or
(ii) Telnet session.
(c) Dial-up connection via PSTN. (1) This connection option
requires that terminal schedules 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(s) quality for data transmission.
(2) The modem may be included in a collection (bank) of modems as
long as all modems in the bank meet the minimum speed. Smart terminal
emulation provides for features such as bold, blinking, underlining and
positioning to specific locations on the display screen.
(d) 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 universal resource locator (URL) Internet address (e.g.,
telnet://tariffsrus or telnet://1.2.3.4), for Telnet session access
over the Internet.
(2) Marine terminal operators shall ensure that their Internet
service providers shall provide static Internet addresses.
(e) Commission access. Commission telecommunications access to
systems must include connectivity via a dial-up connection over public
switched telephone networks (PSTN) 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 terminal
schedule initiated by the Commission.
(f) Notification. Each marine terminal operator shall notify the
Commission's Bureau of Tariffs, Certification and Licensing (``BTCL''),
prior to the commencement of marine terminal operations, of its
organization name, organization number, home office address, name and
telephone number of firm's representative, the location of its terminal
schedule(s), and the publisher, if any, used to maintain its terminal
schedule, by submitting Form FMC-1. Any changes to the above
information shall be immediately transmitted to BTCL. The Commission
will publish a list on its website, www.fmc.gov, of the location of any
terminal schedule made available to the public.
(g) Form and manner. Each terminal schedule made available by a
marine terminal operator shall contain an individual identification
number, effective date, expiration date, if any, and the complete
terminal schedule in full text and/or data format showing all its
rates, charges, and regulations relating to or connected with the
receiving, handling, storing, and/or delivering of property at their
terminal facilities.
By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 98-33366 Filed 12-16-98; 8:45 am]
BILLING CODE 6730-01-P
