Proposed Rule2021-18878
Marine Terminal Operator Schedules
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 22, 2021
Issuing agencies
Federal Maritime Commission
Abstract
The Federal Maritime Commission (FMC) proposes to modernize outdated requirements and clarify existing requirements associated with the filing of marine terminal operator (MTO) schedules.
Full Text
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<title>Federal Register, Volume 86 Issue 181 (Wednesday, September 22, 2021)</title>
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[Federal Register Volume 86, Number 181 (Wednesday, September 22, 2021)]
[Proposed Rules]
[Pages 52627-52631]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-18878]
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FEDERAL MARITIME COMMISSION
46 CFR Part 525
[Docket No. 21-06]
RIN 3072-AC87
Marine Terminal Operator Schedules
AGENCY: Federal Maritime Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Maritime Commission (FMC) proposes to modernize
outdated requirements and clarify existing requirements associated with
the filing of marine terminal operator (MTO) schedules.
DATES: Submit comments on or before November 22, 2021.
In compliance with the Paperwork Reduction Act (PRA), the
Commission is also seeking comment on revisions to an information
collection. See the Paperwork Reduction Act section under Rulemaking
Analyses and Notices below. Please submit all comments relating to the
revised information collection requirements to the FMC and to the
Office of Management and Budget (OMB) at the address listed below under
ADDRESSES on or before November 22, 2021. Comments to OMB are most
useful if submitted within 30 days after publication.
ADDRESSES: You may submit comments, identified by Docket No. 21-06, by
emailing <a href="/cdn-cgi/l/email-protection#2655434554435247545f66404b4508414950"><span class="__cf_email__" data-cfemail="7102141203140510030831171c125f161e07">[email protected]</span></a>. For comments, include in the subject line:
``Docket No. 21-06, Comments on Marine Terminal Operator Schedules
Rulemaking.'' Comments should be attached to the email as a Microsoft
Word or text-searchable PDF document. Comments regarding the proposed
revisions to the relevant information collection should be submitted to
the FMC through the method above and a copy should also be sent to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Attention: Desk Officer for Federal Maritime Commission, 725
17th Street NW, Washington, DC 20503; by fax: (202) 395-5167; or by
email: <a href="/cdn-cgi/l/email-protection#0f40465d4e505c7a6d62667c7c6660614f40424d214a405f21484059"><span class="__cf_email__" data-cfemail="145b5d46554b476176797d67677d7b7a545b59563a515b443a535b42">[email protected]</span></a>.
[[Page 52628]]
Instructions: For detailed instructions on submitting comments,
including requesting confidential treatment of comments, and additional
information on the rulemaking process, see the Public Participation
heading of the SUPPLEMENTARY INFORMATION section of this document. Note
that all comments received will be posted without change to the
Commission's website, unless the commenter has requested confidential
treatment.
Docket: For access to the docket to read background documents or
comments received, go to the Commission's Electronic Reading Room at:
<a href="https://www2.fmc.gov/readingroom/proceeding/21-06/">https://www2.fmc.gov/readingroom/proceeding/21-06/</a>.
FOR FURTHER INFORMATION CONTACT: Rachel E. Dickon, Secretary; Phone:
(202) 523-5725; Email: <a href="/cdn-cgi/l/email-protection#93e0f6f0e1f6e7f2e1ead3f5fef0bdf4fce5"><span class="__cf_email__" data-cfemail="95e6f0f6e7f0e1f4e7ecd5f3f8f6bbf2fae3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Introduction
Regulations for the publication of terminal schedules by MTOs are
set forth in 46 CFR part 525. Information made available under this
part may be used to determine MTOs' compliance with shipping statutes
and regulations.
II. Background
Rules regarding MTO schedules are outlined in 46 CFR part 525. The
regulations are limited to the optional publication of MTO schedules.
Pursuant to part 525, a marine terminal operator, at its discretion,
may make available to the public, subject to section 10(d) of the
Shipping Act (46 U.S.C. 41102(c), 41103, 41106), a schedule of its
rates, regulations, and practices. Part 525 also discusses the rules
with respect to making terminal schedules available to the public.
These regulations were scheduled to be reviewed in Fiscal Year 2020.
The Commission proposes several changes to these regulations that are
neither substantial nor policy related. Some provisions reference old
names of a current Commission bureau or outdated technology used to
gain access to MTO schedules. Other provisions have been clarified as
deemed necessary or revised to be consistent with other parts of the
Commission's regulations.
III. Discussion of Proposed Changes
As discussed above, the proposed changes are non-policy related and
the intent is limited to modernizing outdated requirements, clarifying
existing requirements and definitions, and making the existing
requirements and definitions consistent with other parts of the
Commission's regulations.
Section 525.1. The proposed rule revises references to the Shipping
Act of 1984 (the Act) to remove specific cites to the Ocean Shipping
Reform Act of 1998 and the Coast Guard Authorization Act of 1998
because several other laws also amend the Shipping Act of 1984. See An
Act to Complete the Codification of Title 46, United States Code,
``Shipping,'' as Positive Law, Public Law 109-304, 120 Stat. 1485
(2006); Frank LoBiondo Coast Guard Authorization Act of 2018, Public
Law 115-282, 132 Stat. 4192 (2018). These revisions affect section
525.1(a) and (c)(1). The proposed rule adds clarifying language to the
definition of ``bulk cargo'' to show that bulk ``containerized cargo
tendered by the shipper'' is subject to mark and count and is,
therefore, subject to the requirements of this part. The proposed rule
amends the definition of ``forest products'' to correct a typographical
error.
In addition, the proposed rule revises the definition of ``marine
terminal operator'' to mean ``a person engaged in the United States in
the business of providing wharfage, dock, warehouse, or other terminal
facilities in connection with a common carrier[.]'' This language is
consistent with the statutory definition of an MTO. See 46 U.S.C.
40102(15). The proposed rule also adds language to clarify that
shippers or consignees who exclusively provide their own marine
terminal facilities in connection with providing marine terminal
services are not MTOs.
The proposed rule amends the definition of ``terminal facilities''
by adding ``docks, berths, piers, [and] aprons'' to the list of
structures comprising a terminal unit. In addition, the proposed
language replaces the term ``water carriers'' with ``ocean common
carriers.''
The proposed rule also introduces a definition for the ``United
States'' that is consistent with the definition found in 46 U.S.C. 114.
To accommodate the new paragraph, the proposed rule renumbers
paragraphs 525.1(c)(21) to (23) to be paragraphs 525.1(c)(22) to (24).
Additionally, the proposed rule revises the definition of an MTO to
delete ``or a commonwealth, territory, or possession thereof,'' because
those entities are now included in the definition of ``United States.''
Section 525.2. The proposed rule does not revise section 525.2,
Terminal Schedules.
Section 525.3. With respect to part 525.3, Availability of marine
terminal operator schedules, the proposed rule strikes outdated and
unnecessary language relating to accessing electronically published MTO
schedules. The proposed rule deletes the terms ``personal computer
(PC),'' ``dial-up connection,'' ``the internet,'' ``Web browser,''
``Telnet session,'' ``modem,'' and any further definition or technical
requirements relating to these terms. The proposed language also amends
the term ``URL'' to mean ``uniform resource locator.'' The proposed
rule deletes current paragraphs 525.3(c) and (e) regarding dial-up
connection requirements and the Commission access as the technologies
referenced in those paragraphs are obsolete.
With the deletion of specific paragraphs as discussed above, the
proposed rule renumbers the remaining paragraphs. With respect to
current paragraph 525.3(f), the proposed rule replaces references to
the ``Bureau of Tariffs, Certification and Licensing,'' which no longer
exists, with the ``Bureau of Trade Analysis'' (BTA). In addition, the
proposed rule also replaces ``name and telephone number of firm's
representative'' with simply ``contact information for its
representative.'' The proposed rule also clarifies that BTA has
authority to accept submitted Form FMC-1 filings and revisions, and
that the filings are pending until accepted.
With respect to current paragraph 525.3(g), the proposed rule
clarifies that an MTO may make available to the public its schedules
and that any such schedule made available to the public is enforceable
by an appropriate court as an implied contract without proof of actual
knowledge of its provisions. This language is consistent with 46 U.S.C.
40501(f).
Section 525.4. The proposed rule does not revise section 525.4.
IV. Public Participation
How do I prepare and submit comments?
Your comments must be written and in English. To ensure that your
comments are correctly filed in the docket, please include the docket
number of this document in your comments.
You may submit your comments via email to the email address listed
above under ADDRESSES. Please include the docket number associated with
this notice and the subject matter in the subject line of the email.
Comments should be attached to the email as a Microsoft Word or text-
searchable PDF document.
How do I submit confidential business information?
The Commission will provide confidential treatment for identified
confidential information to the extent
[[Page 52629]]
allowed by law. If your comments contain confidential information, you
must submit the following by email to the address listed above under
ADDRESSES:
<bullet> A transmittal letter requesting confidential treatment
that identifies the specific information in the comments for which
protection is sought and demonstrates that the information is a trade
secret or other confidential research, development, or commercial
information.
<bullet> A confidential copy of your comments, consisting of the
complete filing with a cover page marked ``Confidential-Restricted,''
and the confidential material clearly marked on each page.
<bullet> A public version of your comments with the confidential
information excluded. The public version must state ``Public Version--
confidential materials excluded'' on the cover page and on each
affected page, and must clearly indicate any information withheld.
Will the Commission consider late comments?
The Commission will consider all comments received before the close
of business on the comment closing date indicated above under DATES. To
the extent possible, we will also consider comments received after that
date.
How can I read comments submitted by other people?
You may read the comments received by the Commission at the
Commission's Electronic Reading Room at the addresses listed above
under ADDRESSES.
V. Regulatory Notices and Analysis
Regulatory Flexibility Act
The Regulatory Flexibility Act (codified as amended at 5 U.S.C.
601-612) provides that whenever an agency is required to publish a
notice of proposed rulemaking under the Administrative Procedure Act
(APA) (5 U.S.C. 553), the agency must prepare and make available for
public comment an initial regulatory flexibility analysis (IRFA)
describing the impact of the proposed rule on small entities, unless
the head of the agency certifies that the rulemaking will not have a
significant economic impact on a substantial number of small entities.
5 U.S.C. 603, 605. Based on the analysis below, the Chairman of the
Federal Maritime Commission certifies that this proposed rule will not
have a significant economic impact on a substantial number of small
entities. The regulated business entities that would be impacted by the
rule are marine terminal operators. The Commission has determined that
marine terminal operators generally do not qualify as small entities
under the guidelines of the Small Business Administration (SBA). See
FMC Policy and Procedures Regarding Proper Consideration of Small
Entities in Rulemakings (Feb. 7, 2003), available at <a href="https://www.fmc.gov/wp-content/uploads/2018/10/SBREFA_Guidelines_2003.pdf">https://www.fmc.gov/wp-content/uploads/2018/10/SBREFA_Guidelines_2003.pdf</a>.
National Environmental Policy Act
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321-4347) requires Federal agencies to consider the environmental
impacts of proposed major Federal actions significantly affecting the
quality of the human environment, as well as the impacts of
alternatives to the proposed action. When a Federal agency prepares an
environmental assessment, the Council on Environmental Quality (CEQ)
NEPA implementing regulations (40 CFR parts 1500 through 1508) require
it to ``include brief discussions of the need for the proposal, of
alternatives [. . .], of the environmental impacts of the proposed
action and alternatives, and a listing of agencies and persons
consulted.'' 40 CFR 1508.9(b). This section serves as the Commission's
Draft Environmental Assessment (Draft EA) for the proposed changes to
46 CFR part 525.
This document sets forth the purpose of and need for this action.
The purpose of this rulemaking is to modernize outdated requirements
and clarify existing requirements associated with the filing of MTO
schedules. The recommended changes are non-policy related and the
intent is limited to modernizing outdated requirements and clarifying
existing requirements and definitions to make them consistent with
other parts of the Commission's regulations.
The Commission has reviewed the information presented in this Draft
EA and concludes that the proposed action and alternatives it may
consider would have nothing more than de minimis impacts on the quality
of the human environment. Based on the information in this Draft EA and
assuming no additional information or changed circumstances, the
Commission expects to issue a Finding of No Significant Impact (FONSI).
Such a finding will be made only after careful review of all public
comments received. A Final EA and a FONSI, if appropriate, will be
issued as part of the final rule.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA)
requires an agency to seek and receive approval from the Office of
Management and Budget (OMB) before collecting information from the
public. 44 U.S.C. 3507. The agency must submit collections of
information in proposed rules to OMB in conjunction with the
publication of the notice of proposed rulemaking. 5 CFR 1320.11.
The information collection requirements associated with the marine
terminal operator schedules requirements in part 525 are currently
authorized under OMB Control Number 3072-0061. The proposed rule does
not make any changes to the option for MTOs to file MTO schedules with
the Commission.
In compliance with the PRA, the Commission has submitted the
proposed revised information collection to the Office of Management and
Budget and is requesting comment on the proposed revision.
Title: 46 CFR part 525--Marine Terminal Operator Schedules and
Related Form FMC-1.
OMB Control Number: 3072-0061 (Expires April 30, 2024).
Abstract: 46 U.S.C. 40501(f) provides that a marine terminal
operator (MTO) may make available to the public a schedule of its
rates, regulations, and practices, including limitations of liability
for cargo loss or damage, pertaining to receiving, delivering,
handling, or storing property at its marine terminal. The Commission's
rules governing MTO schedules are set forth at 46 CFR part 525.
Current Actions: The proposed rule would modernize outdated
requirements and clarify existing requirements associated with the
filing of MTO schedules.
Type of Review: Revision of a previously approved collection.
Needs and Uses: The Commission uses information obtained from Form
FMC-1 to determine the organization name, organization number, home
office address, name and telephone number of the firm's representatives
and the location of MTO schedules of rates, regulations and practices,
and publisher, should the MTOs determine to make their schedules
available to the public, as set forth in section 8(f) of the Shipping
Act.
Frequency: This information is collected prior to an MTO's
commencement of its marine terminal operations.
Type of Respondents: Persons operating as MTOs.
[[Page 52630]]
Number of Annual Respondents: The Commission estimates the
respondent universe at 20, of which 10 opt to make their schedules
available to the public.
Estimated Time per Response: The time per response for completing
Form FMC-1 averages 0.5 person-hours, and approximately 5 person-hours
for related MTO schedules.
Total Annual Burden: The Commission estimates the total annual
person-hour burden at 60 person-hours.
Comments are invited on:
<bullet> Whether the collection of information is necessary for the
proper performance of the functions of the Commission, including
whether the information will have practical utility;
<bullet> Whether the Commission's estimate for the burden of the
information collection is accurate;
<bullet> Ways to enhance the quality, utility, and clarity of the
information to be collected;
<bullet> Ways to minimize the burden of the collection of
information on respondents, including the use of automated collection
techniques or other forms of information technology.
Please submit any comments, identified by the docket number in the
heading of this document, by the methods described in the ADDRESSES
section of this document.
Executive Order 12988 (Civil Justice Reform)
This proposed rule meets the applicable standards in E.O. 12988
titled, ``Civil Justice Reform,'' to minimize litigation, eliminate
ambiguity, and reduce burden. Section 3(b) of E.O. 12988 requires
agencies to make every reasonable effort to ensure that each new
regulation: (1) Clearly specifies the preemptive effect; (2) clearly
specifies the effect on existing Federal law or regulation; (3)
provides a clear legal standard for affected conduct, while promoting
simplification and burden reduction; (4) clearly specifies the
retroactive effect, if any; (5) adequately defines key terms; and (6)
addresses other important issues affecting clarity and general
draftsmanship under any guidelines issued by the Attorney General. This
document is consistent with that requirement.
Regulation Identifier Number
The Commission assigns a regulation identifier number (RIN) to each
regulatory action listed in the Unified Agenda of Federal Regulatory
and Deregulatory Actions (Unified Agenda). The Regulatory Information
Service Center publishes the Unified Agenda in April and October of
each year. You may use the RIN contained in the heading at the
beginning of this document to find this action in the Unified Agenda,
available at <a href="http://www.reginfo.gov/public/do/eAgendaMain">http://www.reginfo.gov/public/do/eAgendaMain</a>.
List of Subjects in 46 CFR Part 525
Marine Terminal Operator Schedules.
For the reasons set forth above, the Federal Maritime Commission is
proposing to amend 46 CFR part 525 as follows:
PART 525--MARINE TERMINAL OPERATOR SCHEDULES
0
1. The authority citation for part 525 continues to read as follows:
Authority: 46 U.S.C. 40102, 40501, 41101-41106.
0
2. Amend Sec. 525.1 by:
0
a. Revising paragraphs (a) and (c)(1), (2), (7), (8), (13), and (18);
0
b. Redesignating paragraphs (c)(21) through (23) as paragraphs (c)(22)
through (24); and
0
c. Adding a new paragraph (c)(21).
The revisions and addition read as follows:
Sec. 525.1 Purpose and scope.
(a) Purpose. This part implements the Shipping Act of 1984, as
amended (46 U.S.C. 40101-41309). The 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
(46 U.S.C. 41101-41106).
* * * * *
(c) * * *
(1) Act means the Shipping Act of 1984, as amended.
(2) Bulk cargo means cargo that is loaded and carried in bulk
without mark or count, in a loose unpackaged form, having homogenous
characteristics. Bulk containerized cargo tendered by the shipper is
subject to mark and count and is, therefore, subject to the
requirements of this part.
* * * * *
(7) Expiration datemeans 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.
* * * * *
(13) Marine terminal operator means a person engaged in the United
States in the business of providing 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. For the purposes of this part,
marine terminal operator includes conferences of marine terminal
operators. This term does not include shippers or consignees who
exclusively provide their own marine terminal facilities in connection
with tendering or receiving proprietary cargo from a common carrier or
water carrier.
* * * * *
(18) Terminal facilities means one or more structures comprising a
terminal unit, which include, but are not limited to docks, berths,
piers, aprons, 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 ocean common carriers or
between two ocean common carriers.
* * * * *
(21) United States means the States of the United States, the
District of Columbia, Guam, Puerto Rico, the Virgin Islands, American
Samoa, the Northern Mariana Islands, and any other territory or
possession of the United States.
* * * * *
0
3. Amend Sec. 525.3 by revising paragraphs (b) through (e) to read as
follows:
Sec. 525.3 Availability of marine terminal operator schedules.
* * * * *
(b) Access to electronically published schedules. Marine terminal
operators shall provide access to their terminal schedules via the
internet.
(c) internet connection. (1) The internet connection requires that
[[Page 52631]]
systems provide a uniform resource locator (URL) internet address
(e.g., <a href="http://www.tariffsrus.com">http://www.tariffsrus.com</a> or <a href="http://1.2.3.4">http://1.2.3.4</a>).
(2) Marine terminal operators shall ensure that their internet
service providers shall provide static internet addresses.
(d) Notification. Each marine terminal operator shall notify the
Commission's Bureau of Trade Analysis (BTA), prior to the commencement
of marine terminal operations, of its organization name, home office
address, contact information for its representative, the location of
its terminal schedule(s), and the publisher, if any, used to maintain
its terminal schedule, by electronically submitting Form FMC-1 via the
Commission's website at <a href="http://www.fmc.gov">www.fmc.gov</a>. Any changes to the above
information shall be immediately transmitted to BTA within 30 calendar
days. BTA has the authority to accept submitted Form FMC-1 filings and
revisions. Form FMC-1 filings are pending until accepted. The
Commission will publish, on its website, the location of any terminal
schedule made available to the public.
(e) Form and manner. A marine terminal operator may make available
to the public a schedule of rates, regulations, and practices,
including limitations of liability for cargo loss or damage, pertaining
to receiving, delivering, handling, or storing property at its marine
terminal. Any such schedule made available to the public is enforceable
by an appropriate court as an implied contract without proof of actual
knowledge of its provisions. Each terminal schedule made available by a
marine terminal operator shall contain an individual identification
number, effective date, expiration date, if any, and the terminal
schedule in full text and/or data format showing the relevant rates,
charges, and regulations relating to or connected with the receiving,
handling, storing, and/or delivering of property at its terminal
facilities.
* * * * *
By the Commission.
Rachel E. Dickon,
Secretary.
[FR Doc. 2021-18878 Filed 9-21-21; 8:45 am]
BILLING CODE 6730-02-P
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