[Federal Register Volume 62, Number 106 (Tuesday, June 3, 1997)]
[Rules and Regulations]
[Pages 30285-30287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14457]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1312
[STB Ex Parte No. 618]
Regulations for the Publication, Posting and Filing of Tariffs
for the Transportation of Property by or With a Water Carrier in the
Noncontiguous Domestic Trade
AGENCY: Surface Transportation Board, DOT.
ACTION: Final rule; petition for reconsideration.
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SUMMARY: The Board makes technical amendments to the final rule
published on April 18, 1997, to ensure that the intended application of
the rule is not misunderstood with respect to electronic filings, and
in all other respects denies the petition for reconsideration.
EFFECTIVE DATE: These rules are effective June 3, 1997.
FOR FURTHER INFORMATION CONTACT: James W. Greene, (202) 565-1578. [TDD
for the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: The Caribbean Shippers Association, Inc.
(CSA), filed a petition on April 22, 1997, requesting the Board to
reopen and reconsider its final rules decision served April 17, 1997
(62 FR 19058). CSA contends that the Board committed legal error by
impermissibly permitting carriers that utilize the Automated Tariff
Filing and Information System (ATFI), an electronic tariff filing
system developed by the Federal Maritime Commission (FMC), to avoid the
[[Page 30286]]
mandatory requirements of the posting provisions of 49 U.S.C.
13702(b)(1).1
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\1\ Prior to October 1, 1996, the requirements for
electronically filed tariffs in the noncontiguous domestic trade
were administered by the FMC. On October 1, 1996, in conjunction
with the ICCTA's transfer of jurisdiction over port-to-port water
carrier transportation in the noncontiguous domestic trade from FMC
to the Board, the FMC requirements were adopted for tariffs filed
electronically with the Board. See Electronic Filing of
Noncontiguous Domestic Trade Tariffs, Special Tariff Authority No.
4, served October 1, 1996.
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The provisions of 49 U.S.C. 13702(b)(1) require that carriers
publish, file with the Board and keep available for public inspection
tariffs containing the rates established for transportation or service
in the noncontiguous domestic trade, and that the Board prescribe the
form and manner of publishing, filing and keeping such tariffs
available for public inspection. In our final rules, we provided that
carriers could, at their election, meet the tariff requirements of
section 13702(b)(1) by using FMC's ATFI system, and by following all of
the posting and filing rules contained in the FMC's regulations at 46
CFR part 514.2 Our regulations provided that noncontiguous
domestic trade tariffs properly filed through the ATFI system would be
deemed to be filed with us.3
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\2\ The conference report accompanying the ICC Termination Act
of 1995, Pub. L. No. 104-88, 109 Stat. 103 (1995) (ICCTA), urged the
Board to continue the FMC's practice of allowing carriers to file
their noncontiguous domestic trade tariffs electronically. H. R.
Rep. No. 422, 104th Cong., 1st Sess. 206 (1995).
\3\ The Board and the FMC entered into an interagency agreement
to provide for the use of the ATFI system for tariffs covering
services subject to the Board's jurisdiction.
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In seeking reconsideration, CSA asserts that the posting
requirements in 46 CFR part 514 are not applicable to electronic
tariffs filed with the Board, but that, if they are, they do not
comport with the requirements of section 13702(b)(1). CSA's position is
incorrect.
At the outset, it is clear from our final rules that the posting
requirements in 46 CFR part 514 apply to ATFI tariffs filed with the
Board. Indeed, CSA cites in its petition a portion of the discussion in
our decision that makes such intent abundantly clear. Nevertheless, to
remove any doubt, we will modify paragraphs (b) and (d) of Sec. 1312.17
to specifically include the word ``posting.'' These amendments, which
further clarify what we believe were already clear regulations, will
become effective upon publication.
CSA also seems to assert that the FMC's posting requirements, which
we have adopted verbatim in the revised regulations, do not satisfy the
law, and it asks that we modify them to ``make it very clear that U.S.
governmental ATFI charges may not be assessed by the carriers for the
posting compliance required by section 13702(b)(1).'' CSA's point is
far from clear, but we will address its statement as well as we can.
At the outset, we note that the posting requirements of 49 U.S.C.
13702, which are implemented in 46 CFR 514.8, require each carrier in
the noncontiguous domestic trade to ``make available to the public at
each facility at which it receives freight * * * for transportation, or
at which it employs a general or sales agent, all tariff material
governing transportation to and from the facility in question.'' 46 CFR
514.8(k)(1)(i)(B). In addition to these provisions requiring carriers
to provide free access to rate information at their places of business,
the general provisions of 46 CFR 514.8(k)(1)(i)(A) require that every
carrier using the ATFI system ``promptly make available to the public
in paper or electronic form and at a reasonable charge (such as for a
regular subscription under Sec. 514.15(b)(30)) all tariff material
required by this part to be filed.'' All of these posting requirements
apply to carriers, not to the U.S. Government.
CSA seems to equate the provisions of 46 CFR 514.8(k)(1)(i)(A),
which permit carriers to charge fees for requests for tariffs other
than those made by persons who appear at the carrier's places of
business, with ``U.S. Governmental ATFI charges.'' The governmental
ATFI charges, however, are very different from permissible carrier
tariff dissemination charges. The ATFI fee imposed pursuant to 46 CFR
514.21(g) for remote electronic retrieval is a charge assessed by the
United States Government to recover the costs of alternative tariff
access that is provided by the United States Government; 4
it is not a charge assessed by carriers to comply with the posting
requirement. The remote access for which the Government assesses a
charge is not provided pursuant to the posting requirement. Rather, it
is simply an alternative form of access made available by the United
States Government to persons who might prefer to obtain tariff
information from the Government rather than from the carrier pursuant
to the posting requirement.
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\4\ As in the case of printed tariff information available at
the Board's office, any person may obtain free access to
noncontiguous domestic trade ATFI tariffs at the Board's office.
However, as is the case with copies of printed tariffs, ATFI tariffs
that a person requests from a remote location will be provided, but
at a fee that contributes to the Government's cost of providing the
service.
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CSA appears to suggest, as it did in its response to the notice of
proposed rulemaking (NPR) served December 20, 1996 (61 FR 67291), that
no shipper should ever have to pay for any rate information on an ATFI
shipment, because the carrier should be required to make electronic
tariff information available to any person, through dial-up access by
modem, without charge. As we noted in our prior decision, the existing
FMC regulations, including the regulations permitting carriers to
charge shippers for off-premise tariff information, have been in effect
for many years. CSA has presented absolutely no support for its
proposal to change these regulations, and we will not adopt it. The
existing regulations provide means by which shippers can obtain free
tariff information. To require carriers to adapt their existing systems
so that any shipper can obtain free tariff information by modem would
clearly entail additional costs. As the existing regulations plainly
provide all that is required under the statute,5 and as CSA
has not even attempted to show why the carriers, rather than CSA's
members, should bear the cost of rate dissemination beyond that
required by the statute, CSA's petition for reconsideration will be
denied.
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\5\ We have reviewed the posting requirements set forth at 46
CFR 514.8(k)(1)(i) (A) and (B), and we conclude that they fully
comport with the requirements at 49 U.S.C. 13702(b)(1).
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Small Entities
The Board certifies that this rule will not have a significant
economic effect on a substantial number of small entities.
Environment
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1312
Motor carriers, Noncontiguous domestic trade, Tariffs, Water
carriers.
Decided: May 22, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble, title 49, chapter X,
part 1312 of the Code of Federal Regulations is amended as follows:
[[Page 30287]]
PART 1312--REGULATIONS FOR THE PUBLICATION, POSTING AND FILING OF
TARIFFS FOR THE TRANSPORTATION OF PROPERTY BY OR WITH A WATER
CARRIER IN NONCONTIGUOUS DOMESTIC TRADE
1. The authority citation for part 1312 continues to read as
follows:
Authority: 49 U.S.C. 721(a), 13702(a), 13702(b) and 13702(d).
2. In Sec. 1312.17, paragraphs (b) and (d) are revised to read as
follows:
Sec. 1312.17 Electronic filing of tariffs.
* * * * *
(b) Compliance with FMC requirements. All tariffs filed
electronically must fully comply with the filing and posting
procedures, and the data record format and content requirements,
established for the ATFI system (see 46 CFR part 514).
* * * * *
(d) Relief from this part. Electronically filed tariffs will not be
subject to the filing and posting procedures, and the format
requirements, for printed tariffs as set forth in Secs. 1312.4, 1312.5,
and 1312.7 through 1312.15; however, such tariffs must otherwise fully
comply with the requirements of this part.
[FR Doc. 97-14457 Filed 6-2-97; 8:45 am]
BILLING CODE 4915-00-P
