Rule2022-05512
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
March 17, 2022
Effective
April 18, 2022
Issuing agencies
Federal Maritime Commission
Abstract
This final rule adopts without substantive change the proposed rule. The Federal Maritime Commission (FMC or Commission) seeks to update outdated references to Commission offices, modernize references to technology, and clarify existing requirements associated with the filing of marine terminal operator (MTO) schedules.
Full Text
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<title>Federal Register, Volume 87 Issue 52 (Thursday, March 17, 2022)</title>
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[Federal Register Volume 87, Number 52 (Thursday, March 17, 2022)]
[Rules and Regulations]
[Pages 15123-15125]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05512]
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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: Final rule.
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SUMMARY: This final rule adopts without substantive change the proposed
rule. The Federal Maritime Commission (FMC or Commission) seeks to
update outdated references to Commission offices, modernize references
to technology, and clarify existing requirements associated with the
filing of marine terminal operator (MTO) schedules.
DATES: This final rule is effective: April 18, 2022.
FOR FURTHER INFORMATION CONTACT: For technical questions, contact
Kristen Monaco, Director, Bureau of Trade Analysis, Federal Maritime
Commission, 800 North Capitol Street NW, Washington, DC 20573-0001.
Phone: (202) 523-5796. Email: <a href="/cdn-cgi/l/email-protection#403432212425212e212c3933293300262d236e272f36"><span class="__cf_email__" data-cfemail="601412010405010e010c1913091320060d034e070f16">[email protected]</span></a>. For legal
questions, contact Steven Andersen, General Counsel, Federal Maritime
Commission, 800 North Capitol Street NW, Washington, DC 20573-0001.
Phone: (202) 523-5738. Email: <a href="/cdn-cgi/l/email-protection#dc9bb9b2b9aebdb09fb3a9b2afb9b09cbab1bff2bbb3aa"><span class="__cf_email__" data-cfemail="e3a4868d8691828fa08c968d90868fa3858e80cd848c95">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Introduction
Pursuant to 46 U.S.C. 40501(f), MTOs may make public a schedule of
rates, regulations, and practice. Additionally, Congress directs the
Commission to prescribe the form and manner in which MTO schedules
shall be published. 46 U.S.C. 40501(g)(3). The Commission's regulations
regarding MTO schedules are outlined in 46 CFR part 525. Consistent
with the language in 46 U.S.C. 40501(f), part 525 states that an MTO,
at its discretion, may make available to the public a schedule of its
rates, regulations, and practices. Part 525 also discusses the
requirements when an MTO decides to make terminal schedules available
to the public.
II. Summary of Proposed Changes
In Fiscal Year 2021, the Commission reviewed its regulations
regarding MTO schedules found in 46 CFR part 525. On September 22,
2021, the Commission issued a notice of proposed rulemaking that
proposed several changes to part 525 that are neither substantive nor
policy related. 86 FR 52627. The proposed revisions updated references
to a Commission bureau and deleted references to outdated technology.
Additionally, the FMC clarified definitions or revised them to be
consistent with other parts of the Commission's regulations. The
Commission requested comments on these proposed amendments.
III. Summary of Comments
One shipper filed comments in this docket. However, these comments,
which relate to per diem charges, detention and demurrage fees, and
dual transaction requirements at specific terminals, do not address the
proposed revisions to part 525. The commenter neither expressed support
nor opposition to the proposed part 525 revisions. Because the issues
raised by the commenter are outside the scope of the proposed
amendments and the rulemaking, the FMC is not making changes to the
final rule based on these comments. The FMC now adopts all of the
proposed amendments without substantive change in this final rule.
IV. Final Rule
The proposed rule contained revisions that were not policy related
and the Commission's intent was 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. For the reasons stated in the
NPRM and described below, the Commission is adopting the revisions in
the proposed rule with non-substantive changes.
1. 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 added clarifying language to the definition of ``bulk
cargo'' to explain 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 amended the definition
of ``forest products'' to correct a typographical error.
In addition, the proposed rule revised 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 added 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 amended 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.'' As a result of these revisions, the definition of
``terminal facilities'' is consistent with the definition of ``marine
terminal facilities'' in 46 CFR part 535.
The proposed rule also introduced 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 renumbered
paragraphs 525.1(c)(21) to (23) to be paragraphs 525.1(c)(22) to (24).
Additionally, the proposed rule revised 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.''
The comments received do not address these proposed revisions.
The final rule adopts the revisions described above without change.
A. Section 525.2
The proposed rule did not propose revisions to section 525.2. The
comments do not address section 525.2. Thus, the final rule does not
revise section 525.2.
B. Section 525.3
With respect to section 525.3, Availability of marine terminal
operator schedules, the proposed rule removed outdated and unnecessary
language relating to accessing electronically published MTO schedules.
The proposed rule deleted the terms ``personal computer (PC),'' ``dial-
up connection,'' ``the internet,'' ``Web browser,'' ``Telnet session,''
``modem,''
[[Page 15124]]
and any further definition or technical requirements relating to these
terms. The proposed language also amended the term ``URL'' to mean
``uniform resource locator.'' The proposed rule deleted current
paragraphs 525.3(c) and (e) regarding dial-up connection requirements
and Commission access as the technologies referenced in those
paragraphs are obsolete.
With the deletion of specific paragraphs as discussed above, the
proposed rule renumbered 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 replaced ``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
clarified 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).
D. Section 525.4
The proposed rule did not propose revisions to section 525.4. The
comments do not address section 525.4. Thus, the final rule does not
revise section 525.4.
V. Regulatory Notices and Analysis
Congressional Review Act
The rule is not a ``major rule'' as defined by the Congressional
Review Act, codified at 5 U.S.C. 801 et seq. The rule will not result
in: (1) An annual effect on the economy of $100,000,000 or more; (2) a
major increase in costs or prices; or (3) significant adverse effects
on competition, employment, investment, productivity, innovation, or
the ability of United States-based companies to compete with foreign-
based companies. 5 U.S.C. 804(2).
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, provides that
whenever an agency promulgates a final rule after being 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 a final regulatory flexibility analysis
describing the impact of the 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.
604, 605. Accordingly, the Chairman of the Federal Maritime Commission
certifies that the final rule will not have a significant 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
Upon completion of an environmental assessment, it was determined
that the proposed rule will not constitute a major Federal action
significantly affecting the quality of the human environment within the
meaning of the National Environmental Policy Act of 1969, 42 U.S.C.
4321 et seq., and that preparation of an environmental impact statement
is not required. This FONSI will become final within 10 days of
publication of this notice in the Federal Register unless a petition
for review is filed by any of the methods described in the ADDRESSES
section of the document. The FONSI and environmental assessment are
available for inspection at 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>.
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 in Part 525, Marine
Terminal Operator Schedules, are currently authorized under OMB Control
Number 3072-0061. In compliance with the PRA, the Commission submitted
the proposed revised information collections to the Office of
Management and Budget. Notice of the revised information collections
was published in the Federal Register and public comments were invited.
See 86 FR 52627 (September 22, 2021). Comments received regarding the
proposed changes are discussed above. No comments specifically
addressed the information collected pursuant to part 525 and no changes
were made in the final rule due to public comments.
The final rule updates a reference to a Commission bureau and
deletes references to outdated technology. In addition, the final rule
clarifies definitions as necessary or revises them to be consistent
with other parts of the Commission's regulations. The final rule does
not substantively impact the information collected pursuant to part
525.
Executive Order 12988 (Civil Justice Reform)
This 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,
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
amending 46 CFR part 525 as follows:
[[Page 15125]]
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), (18), and
(19);
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 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.
* * * * *
(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
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 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.
William Cody,
Secretary.
[FR Doc. 2022-05512 Filed 3-16-22; 8:45 am]
BILLING CODE 6730-02-P
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