Proposed Rule2022-09592
Carrier Automated Tariffs
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
May 10, 2022
Issuing agencies
Federal Maritime Commission
Abstract
The Federal Maritime Commission (Commission) is seeking public comment on proposed modifications to its rules governing Carrier Automated Tariffs through this notice of proposed rulemaking (NPRM). The proposed rule would remove the option for ocean common carriers to charge a fee to access their tariff; allow non-vessel operating common carriers (NVOCCs) to cross reference certain aspects of other carriers' terms in their tariffs; clarify the ability for NVOCCs to reflect increases in certain charges passed-through by other entities without notice; update the definition of co-loading to apply only to less than container loads; require that documentation be annotated with the names of all NVOCCs involved in a shipping transaction; and make other miscellaneous updates and clarifications to the regulation.
Full Text
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<title>Federal Register, Volume 87 Issue 90 (Tuesday, May 10, 2022)</title>
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[Federal Register Volume 87, Number 90 (Tuesday, May 10, 2022)]
[Proposed Rules]
[Pages 27971-27981]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-09592]
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FEDERAL MARITIME COMMISSION
46 CFR Part 520
[Docket No. 21-03]
RIN 3072-AC86
Carrier Automated Tariffs
AGENCY: Federal Maritime Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Maritime Commission (Commission) is seeking public
comment on proposed modifications to its rules governing Carrier
Automated Tariffs through this notice of proposed rulemaking (NPRM).
The proposed rule would remove the option for ocean common carriers to
charge a fee to access their tariff; allow non-vessel operating common
carriers (NVOCCs) to cross reference certain aspects of other carriers'
terms in their tariffs; clarify the ability for NVOCCs to reflect
increases in certain charges passed-through by other entities without
notice; update the definition of co-loading to apply only to less than
container loads; require that documentation be annotated with the names
of all NVOCCs involved in a shipping transaction; and make other
miscellaneous updates and clarifications to the regulation.
DATES: Submit comments on or before June 9, 2022.
ADDRESSES: You may submit comments by email to <a href="/cdn-cgi/l/email-protection#5d2e383e2f38293c2f241d3b303e733a322b"><span class="__cf_email__" data-cfemail="cab9afa9b8afbeabb8b38aaca7a9e4ada5bc">[email protected]</span></a>. For
comments, include in the subject line: ``Docket No. 21-03, Comments on
Carrier Automated Tariffs Rulemaking.'' Comments should be attached to
the email as a Microsoft Word or text-searchable PDF document.
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/21-03/">https://www2.fmc.gov/readingroom/proceeding/21-03/</a>.
FOR FURTHER INFORMATION CONTACT: William Cody, Secretary; Phone: (202)
523-5725; Email: <a href="/cdn-cgi/l/email-protection#2e5d4b4d5c4b5a4f5c576e48434d00494158"><span class="__cf_email__" data-cfemail="c8bbadabbaadbca9bab188aea5abe6afa7be">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Discussion
On April 8, 2021, the Commission issued an Advance Notice of
Proposed Rulemaking (ANPRM) seeking information on how common carriers
interpret and apply certain Commission regulations in 46 CFR part
520.\1\ In response to the ANPRM, the Commission received three sets of
comments from interested parties: The National Customs Brokers and
Forwarders Association of America, Inc (NCBFAA); New York New Jersey
Foreign Freight Forwarders & Brokers Association, Inc. (NYNJFFF&BA);
and the Association of Food Industries, Inc. (AFI). NCBFAA and
NYNJFFF&BA are trade associations whose members include non-vessel
operating common carriers (NVOCCs), and AFI is a trade association for
the U.S. food import industry. These comments are addressed later in
this proposed rule.
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\1\ Advance notice of proposed rulemaking--Carrier Automated
Tariffs, 86 FR 18240 (April 8, 2021).
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A. Tariff Access Fees
Before the passage of the Ocean Shipping Reform Act of 1998 (OSRA),
which became effective May 1, 1999, vessel operating common carrier
(VOCC) and conference tariffs were filed
[[Page 27972]]
with the Commission through the Commission's Automated Tariff Filing
and Information system. OSRA eliminated the requirement that tariffs be
filed with the Commission, and instead, directed carriers and
conferences to publish tariffs in carrier automated tariff systems.
The statute at 46 U.S.C. 40501(c) states that ``[a] reasonable fee
may be charged for'' access to tariffs.\2\ The statute and the
implementing regulations do not, however, state what is considered
``reasonable'' in the context of tariff access.\3\ In response to
complaints from potential tariff users that certain tariff access fees
and minimum subscription requirements were excessive, the Commission
subsequently issued guidance to stakeholders through a Circular Letter
which advised that tariff access fees should recover only costs and
expenses incurred by carriers in making their tariffs accessible to the
public.\4\ More recent experience indicates that, contrary to the
Shipping Act and to the guidance provided in the Circular Letter, some
tariff access fees may be so high as to effectively prevent tariff
users from reviewing certain carrier tariffs. Comments received by the
Commission in response to its ANPRM asserted that some carriers charge
tariff access fees that ``appear to be exorbitant and thus tend to
discourage the public access to VOCC rates[.]'' \5\
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\2\ 46 U.S.C. 40501(c).
\3\ 46 CFR 520.9(e)(3).
\4\ Circular Letter No. 00-2, Charges for Access to Tariffs and
Tariff Systems (October 6, 2000) at <a href="https://www.fmc.gov/about-the-fmc/circulars/">https://www.fmc.gov/about-the-fmc/circulars/</a>.
\5\ Docket No. 21-03, Comments of the National Customs Brokers
and Forwarders Association of America, Inc., June 4, 2021, at 2.
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A competitive and efficient ocean transportation system is
dependent on transparency and availability of price information to the
shipping public. It is the belief of the Commission that any
unnecessary roadblocks to that transparency, including cost barriers to
tariff access, are contrary to that goal. The Commission has learned
that a limited number of carriers are charging unreasonably high fees
that prevent public access to tariffs. The Commission's implementing
regulations were written at a time when dialup internet via public
switched telephone networks was the norm and information was not as
easily posted or located as is the case now.\6\ Intervening
technological developments and efficiencies have made it nearly
essential for businesses to operate a free, publicly accessible
website. Seven of the top ten carriers that serve the U.S. make their
tariffs available on their websites at no cost. With the ubiquity of
websites among carriers, the decreases in the cost of providing
information online, the efficiency of providing public access through a
website, and the prevalence of free and open access to tariffs among
the largest carriers, the Commission believes that free public access
to tariffs is reasonable.
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\6\ 46 CFR 520.9(a).
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While the Commission does not wish to place an undue burden on
common carriers to make their tariffs available to the public, the
Commission proposes to require carriers and conferences to provide free
access to tariffs by removing the option to assess a fee for tariff
access currently found at 46 CFR 520.9(e)(3). The Commission welcomes
comments on what specific costs the carriers would incur in order to
provide free access to tariffs and comments from carriers who do not
charge access on their rationale for that decision.
B. Cross Referencing Tariffs
In contrast to the current regulations in part 520, the Commission
has granted broad flexibility to NVOCCs with regard to increases in
charges passed through by VOCCs in 46 CFR part 531--Negotiated Service
Arrangements (NSAs), and 46 CFR part 532--NVOCC Negotiated Rate
Arrangements (NRAs). These regulations allow an increase in a VOCC
charge to be passed through, without markup of the charges, by an NVOCC
to its shipper if the shipper agrees to this arrangement, provided the
underlying charge is listed in an NRA or NSA, or included in the
NVOCC's rules tariff.
The Commission is persuaded that it is beneficial to address the
pass through of charges by the NVOCC to the shipper in its rules
governing carrier automated tariffs to align the regulations more
closely in part 520 with those regulations in part 531 (NSAs) and part
532 (NRAs) by allowing NVOCCs to cross reference an existing VOCC
tariff in their NVOCC tariff. The Commission notes that, beyond the
flexibility this regulation will grant to NVOCCs in their performance
of transportation service, it also will clarify for shippers where
certain charges originate, and will track when and how those charges
may increase.
Any increases in VOCC-originated surcharges and assessorials must
be published in the VOCC tariff 30 days prior to taking effect.
Although VOCCs are required to file 30-day notice of increases, NVOCCs
commented in response to the ANPRM that, particularly in the current
environment of high demand for vessel capacity, the number of new
charges and frequent increases to existing charges make it
impracticable for NVOCCs to provide same-day notice of those charges in
their own tariffs. Therefore, NVOCCs may be unable to recover increases
in VOCC surcharges and assessorials assessed to the NVOCC. Furthermore,
NVOCC customers may have difficulty keeping up with new charges and
increases in existing charges as they are imposed by various parties in
the ocean shipping supply chain.
To facilitate the transparency and application of VOCC-originated
charges which are passed through from the NVOCC to its shipper, the
Commission proposes to add a new Sec. 520.7(a)(3)(iv) to allow an
NVOCC to cross reference a VOCC's tariff for certain specified
surcharges and assessorials. The Commission notes that it is not the
intent of this regulation to waive the application of Sec. 520.8(a)(1)
to any charge or increase in charge being published in a carrier
tariff. This cross referencing of another tariff is to be used only for
those charges which are being passed through to the shipper at cost.
The Commission believes that this proposed rule will allow for greater
transparency in the sourcing of various fees and assessorials in the
ocean shipping market, which will in turn foster a more competitive
marketplace.
The Commission proposes to add Sec. 520.7(a)(3)(iv) to the
regulations to allow NVOCCs to cross reference a VOCC's tariff for
certain specified surcharges and assessorials.
C. Charges Passed Through by VOCCs
NVOCCs are periodically assessed increases in charges by a VOCC
that are ``passed through'' after being imposed on the VOCC by an
outside entity, such as canal tolls, taxes, or other third-party levies
over which the VOCC has no control. In recognition of the fact that the
entity collecting these types of charges is not necessarily subject to
an obligation to provide 30-day notice of increases to the carrier,
current regulations allow increases in these types of existing charges
to take effect upon publication in the VOCC's tariff. Commission
regulations stipulate at 46 CFR 520.8(b)(4) that this exemption only
applies when the collecting agency has not given advance notice of the
change to the common carrier.
Currently, Commission regulations do not explicitly allow NVOCCs to
pass through increases in these charges outside of the control of a
common carrier, thereby preventing them from passing through to their
customer an increase in a charge imposed by an outside entity and then
subsequently passed through by a VOCC without the
[[Page 27973]]
required 30-day notice. For this reason, an NVOCC may not be able to
recover an increase in these types of charges if it is does not publish
the increase in its own tariff sufficiently in advance of any such
charge becoming effective in the tariff of the VOCC.
The Commission is persuaded that it is beneficial to address the
pass through of charges by the NVOCC to its shipper in its rules
governing carrier automated tariffs to more closely align the
regulations with the flexibilities afforded VOCCs. The Commission notes
that, beyond the flexibility this regulation will grant NVOCCs in their
performance of transportation service, it will also clarify for
shippers the types of increases in charges that can be posted in an
NVOCC's tariff without a 30-day waiting period.
The Commission proposes to add a new Sec. 520.7(h) which would
explicitly state that NVOCCs can pass through charges not under the
control of an ocean carrier in the same manner as VOCCs.
The Commission interprets the passing through of a charge to mean
it is assessed with no markup to the charge imposed on the common
carrier by the underlying collecting agency. The proposed regulations
which reference charges that may be passed through explicitly prohibit
marking up these charges. However, current regulations at 46 CFR
520.8(b)(4) do not address the mark up of the charges listed.
Therefore, the Commission proposes to revise regulations at 46 CFR
520.8(b)(4) to specify that these charges may not be marked up above
cost to be considered a pass-through cost.
The Commission believes that clarity facilitates consistency in the
application of regulations, which in turn provides a measure of
assurance to the shipper that certain practices will be carried out
uniformly among common carriers. The nature of pass-through charges,
such that a shipper may not know the amount of a particular charge in
advance, can deny full transparency to the shipper prior to being
invoiced for such a charge. More recently, as expressed by all
commenters, there is an increased number and variety of additional
fees, and frequent changes to those fees, which has escalated the
chances that a shipper is unaware of the final cost of transportation
when tendering cargo for shipment. To address these inconsistencies,
the Commission offers the following guidance as to the intended
application of the proposed regulations at 46 CFR 520.7(a)(3)(iv) and
(h), and the existing regulations at 520.8(b)(4).
1. General Rate Increases
Some NVOCC commenters expressed concern that General Rate Increases
(GRIs), when originating from an underlying VOCC, can appear similar to
surcharges. Historically, the Commission has classified GRIs as a
component of the base ocean freight assessed by the common carrier and
are therefore not surcharges and not subject to any exemption under 46
CFR 520.8(b)(4). The Commission declines to categorize GRIs as
surcharges because they apply to the base freight rate for carriage,
not a separate fee for ancillary costs associated with that
transportation. Thus, in this proposed rule, GRIs will continue to be
classified as a component of the base ocean freight assessed by the
common carrier and will not be considered exempted from the regulations
at Sec. 520.8(a).
2. Fees Connected to Pass-Through Charges
Some of the comments reference ``administrative fees'' in
connection with the pass through of charges from the NVOCC to its
shipper. Current regulations, at 46 CFR 520.8(b)(4) and proposed
regulations at 520.7(a)(3)(iv) would relieve the common carrier from
the requirement to provide a shipper with advance notice of an increase
in a charge, under the condition that the common carrier itself was not
advised of the increase in advance. This exemption is not intended to
allow a markup of the charge above what the third party has billed to
the NVOCC, which includes not allowing administrative or other named
fees assessed by the NVOCC that apply only to charges passed through by
that NVOCC, whether through a cross-referenced tariff or by name.
3. Demurrage and Detention
The Commission notes that comments included references to demurrage
and detention charges levied by an underlying VOCC. Although demurrage
and detention practices are not within the scope of this rulemaking,
the Commission has issued guidance on how it assesses the
reasonableness of demurrage and detention practices.\7\ Also, it has
issued an Advance Notice of Proposed Rulemaking to seek comment on
whether the Commission should require common carriers and marine
terminal operators to include certain minimum information on or with
demurrage and detention billings.\8\ The Commission is interested in
receiving comments on whether it should require common carriers and
marine terminal operators to adhere to certain practices regarding the
timing of demurrage and detention billings. These changes were
recommended by the Fact Finding Officer in Commission Fact Finding 29:
International Ocean Transportation Supply Chain Engagement. The
Commission welcomes additional comments on demurrage and detention
practices in the docket for the Advance Notice of Proposed
Rulemaking.\9\
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\7\ Interpretive Rule on Demurrage and Detention Under the
Shipping Act, 85 FR 29638 (May 18, 2020).
\8\ Doc. No. 22-04: Demurrage and Detention Billing Requirements
Advance Notice of Proposed Rulemaking, 87 FR 8506 (February 15,
2022); <a href="https://www2.fmc.gov/readingroom/proceeding/22-04/">https://www2.fmc.gov/readingroom/proceeding/22-04/</a>.
\9\ Id.
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4. Application of Exemption at 46 CFR 520.8(b)(4) to NVOCCs
The current regulations at 46 CFR 520.8(b)(4) have exempted VOCCs
from notifying shippers in advance of changes in charges for terminal
services, canal tolls, additional charges, or other provisions which
are not under the control of the common carriers or conferences when it
acts as a collection agent for such charges, and it received no notice
for such changes. This exemption from the waiting period set forth at
Sec. 520.8(a)(1) has been applied to VOCCs, but its application to
NVOCC tariffs has been unclear. The Commission interprets the Sec.
520.8(b)(4) exemption to apply to NVOCCs as well, provided that the
underlying charge originates with an entity that is not subject to the
requirements of Sec. 520.8(a)(1), and that the change was made without
notification from the owner of the originating tariff.
D. Definition of Co-Loading
The Commission considered but declined to limit the definition of
co-loading to less-than-container load (LCL) (as opposed to full
container load (FCL)) cargo in its 1984 rulemaking because ``coloading
FCLs was less prevalent and less likely than coloading LCL cargo.''
\10\ Although the definition of co-loading and its practices was
revisited by the Commission in 1993 and 1994, these docketed items were
discontinued without further action.\11\
[[Page 27974]]
OSRA also continued the co-loading definition without substantive
change.\12\
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\10\ Docket No. 84-27, Publishing and Filing Tariffs by Common
Carriers in the Foreign Commerce of the United States--Co-Loading
Practices by NVOCCs, 49 FR 29980, 29982 (July 25, 1984).
\11\ <a href="https://www2.fmc.gov/readingroom/docs/93-22/93-22_003716807.pdf/">https://www2.fmc.gov/readingroom/docs/93-22/93-22_003716807.pdf/</a> and <a href="https://www2.fmc.gov/readingroom/docs/94-26/94-26_003718346.pdf/">https://www2.fmc.gov/readingroom/docs/94-26/94-26_003718346.pdf/</a>. (Nov. 1, 2004).
\12\ Docket No. 98-29, Final Rule and Interim Final Rule:
Carrier Automated Tariff Systems, 64 FR 11225 (Mar. 8, 1999).
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In order to align regulations with current industry practices, the
Commission proposes to amend the definition of co-loading to state
specifically that co-loading applies to LCL cargo. The Commission
proposes to add the term ``less than container loads of'' to the
existing co-loading definition at Sec. 520.2.
E. Documentation for Co-Loading and Other NVOCC Arrangements
Shipments involving multiple NVOCCs encompass a wide and complex
range of interactions between parties in the supply chain. The various
arrangements made among NVOCCs can provide efficiencies and result in
lower transportation costs to the beneficial cargo owner (BCO). On the
other hand, co-loading practices have the potential to reduce
transparency in the shipping process and can lead to NVOCCs controlling
cargo without the knowledge of the BCO.
The current definition of co-loading at 46 CFR 520.2 is ``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.'' As
discussed above, this definition applies to the physical combining of
LCL shipments in a single shipping container. Regulations at 46 CFR
520.11(c)(2) require that the applicable bill of lading for co-loaded
cargo be annotated with the identity of any other NVOCC to which the
shipment has been tendered for co-loading. Since the promulgation of
co-loading regulations, practices have evolved among NVOCCs that
include the tender for transport of FCL shipments by one NVOCC to
another NVOCC without the knowledge or consent of the BCO. This
practice is often referred to in the industry as co-loading, despite
not conforming to the definition set forth by the Commission.
The Commission proposes to add a regulation at 46 CFR 520.11(d) to
require that the documentation accompanying FCL shipments is annotated
with the name of all NVOCCs associated with the cargo. This annotation
requirement ensures that, for either co-loaded cargo or full container
loads, the BCO has the information required to contact any NVOCC which
may have control of its cargo. This information is critical to the BCO,
particularly in cases of failure to perform by the NVOCC with which the
BCO contracted to transport its cargo.
F. Other Proposed Changes to Part 520
1. Clarifying Revisions
The Commission proposes to revise several provisions within part
520 to clarify when the regulations are expressing a requirement or
obligation. For example, the Commission proposes to replace the term
``shall'' with the term ``must'' to clearly indicate that certain acts
are required and to identify regulatory obligations. In addition, the
Commission proposes similar revisions by either deleting the word
``shall'' or other clarifying edits. Similarly, the Commission also
proposes replacing certain usages of the term ``may'' with the term
``must'' to identify requirements or obligations.
2. Sec. 520.2 Definitions
The proposed rule would: Add 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; amend the definition of
combination rate to spell out the abbreviation for Tariff Rate Item;
amend the definition of harmonized system to remove an outdated
reference to the U.S. Customs Service; amend the definition of
publisher to mean a person rather than an organization, and specify
that a publisher is authorized to act by a common carrier; amend the
definition of retrieval to remove outdated references to dial-up
telecommunications and a network link; amend the definition of rules to
clarify that a common carrier or a conference of common carriers govern
the application of tariff matters; amend the definition of shipper to
specify that ocean transportation refers to the transportation of
cargo, and to specify that the person to whom delivery is to be made
may be a consignee; amend the definition of shippers' association to
make a grammatical change; and amend the definition of through
transportation to remove wording which does not affect the meaning of
the definition. The Commission also proposes to add definitions for
destination scope and inland division. Finally, the Commission proposes
to remove as unnecessary the definitions of joint rates, commodity
description number, local rates, points of rest, and shippers'
association.
3. Sec. 520.3 Publication Responsibilities
Pursuant to Sec. 520.3(d), the Commission requires that all common
carriers publish a tariff in an automated tariff system and provide the
location of that tariff to the Commission prior to the commencement of
common carrier service. However, some NVOCCs will publish a tariff upon
initially being licensed, but later allow the tariff to lapse and fall
out of compliance. The Commission believes adding notice in Sec. 520.3
of the consequences which already exist pursuant to 46 CFR 515.1 and
515.14 for failure to maintain a tariff could improve tariff
compliance. The Commission therefore proposes to add a provision to
Sec. 520.3 that specifies the failure to maintain a tariff will result
in the revocation of an NVOCC's license or suspension of a foreign-
based NVOCC's registration. In addition, the Commission proposes to
change the term used for the person a common carrier may use to meet
their publication requirements from ``agent'' to ``publisher''; include
the common carrier's email address in the list of items provided to the
Commission prior to commencement of common carrier service pursuant to
a published tariff; and define the time period allowed for the common
carrier to provide changes to its Form FMC-1 to the Commission to
within 30 calendar days.
4. Sec. 520.4 Tariff Contents
The Commission proposes to revise Sec. 520.4(a)(3) to clarify that
the ocean transportation intermediary that may receive compensation
paid by a carrier or conference is an ocean freight forwarder as
defined by section 3(17)(A) of the Shipping Act. In addition, the
Commission proposes to: Use plain language to reword the regulation at
Sec. 520.4(a)(4) requiring that a tariff state each charge separately;
revise Sec. 520.4(a)(5) to state that sample copies of bills of lading
must be legible; and revise Sec. 520.4(a)(8) to state that commodity
tariffs must contain a retrievable commodity index.
The Commission also proposes to delete Sec. 520.4(e)(1) which
describes voluntary coding for commodity descriptions. To streamline
the rule and remove a non-mandatory regulation, the Commission proposes
to delete paragraph (e)(1). Tariff publishers are still not required to
use any numeric code to identify commodities and the Commission still
encourages the use of the Harmonized Tariff Schedule of the United
States for both the commodity coding and associated terminology
(definitions). In addition, the regulations still address the use of
numeric codes to identify commodities.
5. Sec. 520.5 Standard Tariff Terminology
The Commission proposes to update the source for geographic names
listed in tariffs because they are currently out of date and
inaccurate.
[[Page 27975]]
6. Sec. 520.6 Retrieval of Information
The Commission proposes to revise the search capability requirement
for the retrieval of tariff information to specify that a search for a
commodity description must result in a commodity or retrievable
commodity index list.
7. Sec. 520.7 Tariff Limitations
The Commission proposes to revise for clarity the date on which a
new conference member's participation in the conference tariff becomes
effective and specify that the minimum time allowed to file an overage
claim with a common carrier applies to claims filed by a shipper. The
Commission also proposes to remove the regulation stipulating the
methods to be used to compute the weight of green salted hides, in
light of requirements mandated by the International Maritime
Organization. In addition, the Commission proposes to add paragraph (h)
to Sec. 520.7 that states that NVOCCs may pass through certain charges
received from ocean common carriers that are not under the control of
the common carrier or conferences. The Commission clarifies that the
charges must be clearly listed in the NVOCC's tariffs and not marked up
above cost.
8. Sec. 520.8 Effective Dates
The Commission proposes to change ``destination grouping'' to
``destination scope'' in Sec. 520.8(b)(3), consistent with other
references to ``destination scope'' in 46 CFR part 520.
9. Sec. 520.9 Access to Tariffs
The Commission proposes to update the regulations under this
section to remove references to obsolete technologies.
10. Sec. 520.10 Integrity of Tariffs
The Commission proposes to revise the requirement to maintain
historical tariff data in Sec. 520.10(a) to define the time period
that data must be made available to the Commission to within 45 days of
a request. The Commission believes 45 days is a reasonable period of
time for a carrier or a conference to respond to a request for archived
data. The Commission also proposes grammatical corrections to the
requirement that carriers provide tariff access to the Commission.
11. Sec. 520.11 Non-Vessel-Operating Common Carriers
The Commission proposes to remove the current regulation that an
NVOCC must note in its tariff that it does not tender cargo for co-
loading. This regulation is considered to be an unnecessary burden on
an NVOCC that does not co-load. The Commission also proposes to remove
the current regulation that an NVOCC may not offer special co-loading
rates for the exclusive use of other NVOCCs. This regulation is
outdated in light of 46 CFR part 531--Negotiated Service Arrangements,
and 46 CFR part 532--NVOCC Negotiated Rate Arrangements which allow an
NVOCC to negotiate rates for the exclusive use of another NVOCC.
12. Sec. 520.12 Time/Volume Rates
The Commission proposes to clarify the requirements applicable to
time/volume rates. The Commission also proposes revisions that clarify
that common carriers or conferences may cancel time/volume rates when
no shipper accepts these rates within thirty (30) days after the rates
are published.
13. Sec. 520.13 Exemptions and Exceptions
The Commission proposes to make change to update the governing
rules of this part, and the requirements for Department of Defense
cargo. The Commission also proposes to remove references to a business
no longer in existence.
14. Sec. 520.14 Special Permission
The Commission proposes to add a regulation which specifies the
documents required when requesting confidential treatment of an
application for special permission and update the process for
submission and payment of applications for special permission.
II. 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 allowed by law. If your comments
contain confidential information, you must submit the following by
email to the address listed above under ADDRESSES:
1. 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.
2. 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.
3. 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.
III. Rulemaking Analyses and Notices
Regulatory Flexibility Act
The Regulatory Flexibility Act, 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.
The proposed rule would require all common carriers to provide free
tariff access, which the Commission believes will provide a benefit by
ensuring there are minimal constraints to inhibit the shipping public
from obtaining pricing information for ocean transportation. As
referenced earlier, advancements in technology have significantly eased
the burden on common carriers to make
[[Page 27976]]
their tariffs available to the public, and many carriers are already
providing their tariffs to the public free of charge. The rule also
provides flexibility for NVOCCs to pass through to their customers
charges assessed by other entities, which allows the NVOCC to recover
payments made on behalf of its shipper. In addition, the rule provides
a documentation annotation requirement for shipments arranged by two or
more NVOCCs. This requirement provides information to the beneficial
cargo owner which allows for a more expedient determination of cargo
status and location and places no additional burden on the NVOCC.
Because the costs to comply with this rule are minimal and few
small entities are currently non-compliant, the proposed rule would not
have a significant economic impact on a substantial number of small
entities. For these reasons, the Chairman of the Federal Maritime
Commission certifies that if this rule is promulgated, it would not
have a significant economic impact on a substantial number of small
entities.
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).
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 520.
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 Finding of No Significant Impact (``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/21-03/">https://www2.fmc.gov/readingroom/proceeding/21-03/</a>.
This document sets forth the purpose of and need for this action.
The purpose of this rulemaking is to update current regulations to
reflect changes in industry practices. The rulemaking also proposes to
remove the cost burden to the public associated with access to Carrier
Automated Tariffs. Lastly, the rulemaking makes updates and
clarifications to current regulations, which are largely technical.
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.\13\ The agency must submit collections of information in
proposed rules to OMB in conjunction with the publication of the notice
of proposed rulemaking.\14\
---------------------------------------------------------------------------
\13\ 44 U.S.C. 3507.
\14\ 5 CFR 1320.11.
---------------------------------------------------------------------------
The information collection requirements associated with the carrier
automated tariffs requirements in part 520 are currently authorized
under OMB Control Number 3072-0064. 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.
With the proposed addition of a new 46 CFR 520.7(a)(3)(iv), there
will be a shift in burden when NVOCCs can potentially direct shippers
to existing VOCC tariffs for certain specific surcharges as opposed to
listing those surcharges individually. However, the Commission believes
that this shift in burden will not increase or decrease the overall
industry burden. Although under the proposed rule shippers may be
required to review a VOCC tariff alongside an NVOCC tariff, the NVOCC
will no longer need to maintain a tariff precisely matching the terms
of the chosen VOCC. It will not have a significant impact on members of
the shipping public.
In its proposed addition of a new 46 CFR 520.11(d), the Commission
is proposing an information collection burden for those NVOCCs issuing
bills of lading on FCL shipments where they would place the cargo in
the control of a different NVOCC. This requirement of placing this
information in the document is de minimis, and the Commission believes
that current industry best practices already in place mean that this
change would not impact NVOCCs.
Title: 46 CFR part 520--Carrier Automated Tariff Systems and
Related Form FMC-1.
OMB Control Number: 3072-0064.
Abstract: 46 U.S.C. 40502 and 46 CFR part 520 requires common
carriers and conferences of common carriers to publish tariffs to be
made available to the public in automated tariff systems.
Current Action: The proposed rule would clarify, modernize and
update the current regulations.
Type of Request: Revision of a previously approved collection.
Needs and Uses: The Commission requires tariffs to be made
available to ensure compliance with the Shipping Act of 1984.
Frequency: The frequency of publishing and maintaining data in
tariffs is determined by the common carrier and its customers. It is
the common carrier's responsibility to ensure that the rates and terms
applicable to a shipment are published prior to the receipt of cargo
for that shipment.
Type of Respondents: Common carriers or their duly appointed agents
are required make tariffs available to the public for inspection.
Number of Annual Respondents: The Commission does not anticipate
that the proposed revisions would affect the number of respondents. The
Commission anticipates an annual respondent universe of 6,331 common
carriers.
Estimated Time per Response: The Commission does not anticipate
that the proposed revisions would affect the estimated time per
response, which would continue to range from .0167 to 2 person-hours
for tariff content requirements, notification and filing requirements,
and reporting and recordkeeping requirements contained in the
regulations, and 0.5 person-hours for completing Form FMC-81.
[[Page 27977]]
Total Annual Burden: The Commission does not anticipate that the
proposed revisions would affect the number of tariffs made publicly
available or the burden associated with each tariff and, therefore,
would not affect the total annual burden The Commission estimates the
total person-hour burden at 2,509 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="https://www.reginfo.gov/public/do/eAgendaMain">https://www.reginfo.gov/public/do/eAgendaMain</a>.
List of Subjects in 46 CFR Part 520
Freight, Maritime carriers, Intermodal transportation, Report and
recordkeeping requirements.
For the reasons set forth in the preamble, the Federal Maritime
Commission proposes to amend 46 CFR part 520 as follows:
PART 520--CARRIER AUTOMATED TARIFFS
0
1. The authority citation for part 520 continues to read as follows:
Authority: 5 U.S.C. 553; 46 U.S.C. 305, 40101-40102, 40501-
40503, 40701-40706, 41101-41109.
0
2. Amend Sec. 520.2 by:
0
a. Removing the word ``shall'' from the introductory text paragraph;
0
b. Revising the definitions of ``Bulk cargo'', ``Co-loading'',
``Combination rate'', ``Commodity description'', ``Controlled
carrier'', ``Harmonized system'', ``Location group'', ``Publisher'',
``Retrieval'', ``Rules'', ``Shipper'', ``Tariff number'', ``Tariff rate
item(``TRI'')'' and ``Through transportation'';
0
c. Adding in alphabetical order the definitions of ``destination
scope'', ``inland division'' and ``Through date'';
0
d. Removing definitions of ``cCommodity description number'', ``Joint
rates'', ``Local rates'', ``Point of rest'', ``Shippers' association'';
``Thru date''.
The revisions and additions read as follows:
Sec. 520.2 Definitions.
The following definitions apply to this part:
* * * * *
Bulk cargo means cargo that is loaded and carried in bulk without
mark or count in a loose unpackaged form, having homogeneous
characteristics. Bulk containerized cargo tendered by the shipper is
subject to mark and count and is, therefore, subject to the
requirements of this part.
Co-loading means the combining of less than container loads 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 Tariff
Rate Item (``TRI'') and an inland rate applicable from/to inland points
not covered by the TRI.
* * * * *
Commodity description means a comprehensive description of a
commodity listed in a tariff, including a brief definition of the
commodity, that may be identified by a specific number.
* * * * *
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 will be deemed to
exist with respect to any common carrier if:
* * * * *
Destination scope means a location group defining the geographic
range of cargo destinations covered by a tariff.
* * * * *
Harmonized System means the Harmonized Tariff Schedule of the
United States, published by the U.S. International Trade Commission,
and Schedule B, administered by the U.S. Census Bureau.
Inland division means the amount paid by a common carrier to an
inland carrier for the inland portion of through transportation offered
to the public by the common carrier.
* * * * *
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
represents tariff origin and/or destination scope and TRI origin and/or
destination.
* * * * *
Publisher means a person authorized by a common carrier to publish
or amend tariff information.
* * * * *
Retrieval means the process by which a person accesses a tariff 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 a common carrier
or a conference of common carriers which govern the application of
tariff rates, charges and other matters.
* * * * *
Shipper means:
(1) A cargo owner;
(2) The person for whose account the ocean transportation of cargo
is provided;
(3) The person to whom delivery is to be made
(4) A shipper's association meaning a group of shippers that
consolidates or distributes freight on a nonprofit basis for the
members of the group to obtain carload, truckload, or other volume
rates or service contracts; or
[[Page 27978]]
(5) An NVOCC that accepts responsibility for payment of all charges
applicable under the tariff or service contract.
* * * * *
Tariff number means a unique 3-digit number assigned by the
publisher to distinguish it from other tariffs. Tariffs must 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 moves from origin to
destination under a single specified set of transportation conditions,
such as container size or temperature.
* * * * *
Through 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.
* * * * *
Through transportation means continuous transportation between
origin and destination, 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 port or point and a
foreign port or point.
* * * * *
0
3. Revise Sec. 520.3 to read as follows:
Sec. 520.3 Publication responsibilities.
(a) General. Unless otherwise exempted or excepted by Sec. 520.13,
all common carriers and conferences must 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 must 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) Publishers. Common carriers or conferences can use publishers
to meet their publication requirements under this part.
(d) Notification. (i) Prior to the commencement of common carrier
service pursuant to a published tariff, each common carrier and
conference must electronically submit to BTA, Form FMC-1 via the
Commission's website at <a href="http://www.fmc.gov">www.fmc.gov</a>. (ii) The common carrier and
conference must include on Form FMC-1 its organization name,
organization number, home office address, name, email address and
telephone number of firm's representative, the location of its tariffs,
and the publisher, if any, used to maintain its tariffs. (iii) Any
changes to the above information must be transmitted to BTA within 30
calendar days. (iv) 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, <a href="http://www.fmc.gov">www.fmc.gov</a>, a list of the locations of all common carrier and
conference tariffs.
(f) NVOCC failure to update tariff. Failure to maintain a tariff
will result in revocation of an NVOCC's license or suspension of a
foreign-based NVOCC's registration.
0
4. Amend Sec. 520.4 by:
0
a. Removing in introductory paragraph (a), paragraphs (b) through (d),
and (h) the word ``shall'' and adding in its place the word ``must'';
0
b. Revising paragraphs (a)(3) through (5), (8), (f)(5), (g), and (i);
0
c. Removing paragraph (e)(1);
0
d. Redesignating paragraphs (e)(2) and (3) as paragraphs (e)(1) and (2)
respectively;
0
e. Replacing the word ``shall'' in newly redesignated paragraphs
(e)(1), (e)(2)(ii), and (iii) with the word ``must''; and
0
f. Revising newly redesignated paragraph (e)(2)(i).
The revisions read as follows:
Sec. 520.4 Tariff contents.
(a) * * *
(3) State the level of compensation, if any, to be paid by a
carrier or conference to an ocean freight forwarder, as defined by
section 3(17)(A) of the Act (46 U.S.C. 40102(19));
(4) State separately each terminal or other charge, privilege, or
facility under the control of the carrier or conference and any rules
that in any way change, affect, or determine any part or the total of
the rates or charges;
(5) Include sample copies of any bill of lading showing legible
terms and conditions, contract of affreightment and/or other document
evidencing the transportation agreement;
* * * * *
(8) For commodity tariffs, also contain a retrievable commodity
index, commodity descriptions and tariff rate items.
* * * * *
(e) * * *
(2) Commodity index. (i) Common carriers or their publishers must
have at least one similar index entry which will logically represent
the commodity within the alphabetical index for each commodity
description it creates under this section. Common carriers or their
publishers must create multiple entries in the index for articles with
equally valid common use names, such as, ``Sodium Chloride,'' ``Salt,
common,'' etc.
* * * * *
(f) * * *
(5) Origin and destination scopes or location groups;
* * * * *
(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 can 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.
* * * * *
(i) Shipper requests. Conference tariffs must contain clear and
complete instructions, in accordance with the agreement's provisions,
stating where and by what method shippers can file requests and
complaints and how they can engage in consultation pursuant to section
5(b)(6)-(7) of the Act (46 U.S.C. 40303(b)(6)-(7)), together with a
sample rate request form or a description of the information necessary
for processing the request or complaint.
* * * * *
0
5. Amend Sec. 520.5 by
0
a. Removing in paragraph (a) the word ``may'' in the third sentence and
adding it its place the word ``can''; and
0
b. Revising paragraph (b) to read as follows:
Sec. 520.5 Standard tariff terminology.
* * * * *
(b) Geographic names. Tariffs should employ locations (points) that
are provided by the National Geospatial-Intelligence Agency or the
Geographic Names Information System developed by the U.S. Geological
Survey. Ports published or approved for publication in the World Port
Index (Pub. 150) should also be used in tariffs. Tariff publishers can
use geographic names
[[Page 27979]]
that are currently in use and have not yet been included in these
publications.
0
6. Amend Sec. 520.6 by:
0
a. Removing in paragraphs (a), (c), and (d) the word ``shall'' and
adding in its place the word ``must''; and
0
b. Revising paragraphs (b), (e), and (f) to read as follows:
Sec. 520.6 Retrieval of information.
* * * * *
(b) Search capability. Publisher must provide the capability to
search for tariff matter by non-case sensitive text search. Text search
matches for commodity descriptions must result in a commodity or
retrievable commodity index list.
* * * * *
(e) Basic ocean freight. The minimum rate display for tariffs must
consist of the basic ocean freight rate and a list of all assessorial
charges that apply for the retriever-entered shipment parameters. The
tariff must indicate when other rules or charges apply to a shipment
under certain circumstances.
(f) Displays. All displays of individual tariff matter must include
the publication date, effective date, amendment code (use codes in
Appendix A of this part) and object name or number. When applicable, a
through date or expiration date must also be displayed. Use of ``S'' as
an amendment code must be accompanied by a Commission issued special
permission number.
0
7. Amend Sec. 520.7 by:
0
a. Removing in paragraphs (a), (b), and (c) the word ``shall'' and
adding in its place the word ``must'';
0
b. Removing in paragraphs (a)(3)(ii) and (iii) the word ``may'' and
adding in its place the word ``can'';
0
c. Adding a new paragraph (a)(3)(iv);
0
d. Removing paragraph (e).
0
e. Redesignating paragraphs (f) through (h) as paragraphs (e) through
(g);
0
f. Revising newly redesignated paragraphs (e) and (f); and
0
g. Adding a new paragraph (h).
The additions and revisions read as follows:
Sec. 520.7 Tariff limitations.
(a) * * *
(3) * * *
(iv) An NVOCC may cross-reference an ocean common carrier tariff
for the purpose of charging its shipper the ocean common carrier's
surcharges and assessorial charges, provided the named charges are
clearly listed in the NVOCC's tariff, and not marked up above cost.
* * * * *
(e) Conference situations. (1) New members of a conference must
cancel any independent tariffs applicable to the trades served by the
conference, within ninety (90) days of membership in the conference.
Individual conference members can publish their own separate open rate
tariffs. A new member's participation in the conference tariff is
effective on the date notice of membership is published in the
conference tariff, unless a later effective date is specified.
* * * * *
(f) Overcharge claims. (1) A tariff must not limit the filing of
overcharge claims by a shipper 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 cannot be conditioned
upon the payment of a fee or charge.
(3) A tariff must not 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) Charges assessed by ocean common carriers to non-vessel
operating common carriers. NVOCCs may pass through charges received
from ocean common carriers for terminal services, canal tolls,
additional charges, or other provisions which are not under the control
of the common carrier or conferences, and for which the ocean common
carrier merely acts as a collection agent. The charges must be clearly
listed in the NVOCC's tariffs, and not marked up above cost.
0
8. Amend Sec. 520.8 by:
0
a. Revising paragraph (b)(3) and (4); and
0
b. Removing in paragraph (c) the wording ``shall be'' and adding in its
place the word ``are''.
The revisions read as follows:
Sec. 520.8 Effective dates.
* * * * *
(b) * * *
(3) The addition of a port or point to a previously existing origin
or destination scope; or
(4) Changes in charges which are not under the control of the
common carrier or conference (including terminal services, canal tolls,
additional charges, or other provisions), for which the carrier or
conference merely act as a collection agent for such charges, and the
agency making such changes does so without notifying the tariff owner.
The carrier must not mark up these charges above cost.
* * * * *
0
9. Revise Sec. 520.9 to read as follows:
Sec. 520.9 Access to tariffs.
(a) Methods to access. Carriers and conferences must provide access
to their published tariffs, via the internet.
(b) Internet connection. (1) The internet connection requires that
systems provide a uniform resource locator (``URL'') internet address
(e.g., <a href="https://www.tariffsrus.com">https://www.tariffsrus.com</a> or <a href="https://1.2.3.4">https://1.2.3.4</a>). (2) Carriers or
conferences must ensure that their internet service providers provide
static internet addresses.
(c) Tariff availability. (1) Tariffs must be made available to any
person without time, quantity, or other limitations.
(2) Carriers and conferences must provide free access to their
tariff publication system.
(3) Tariff publication systems must provide user instructions for
access to tariff information.
(d) Federal agencies. Carriers and conferences must not assess any
access charges against the Commission or any other Federal agency.
(e) User identifications. Carriers and conferences must provide the
Commission with the requisite documentation and the number of user
identifications and passwords required to facilitate the Commission's
access to their systems, if those systems require such identifications
and passwords.
0
10. Amend Sec. 520.10 by revising paragraphs (a), (b), and (d) to read
as follows:
Sec. 520.10 Integrity of tariffs.
(a) Historical data. Carriers and conferences must keep 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 must provide on-line access to such data for two (2)
years. After two (2) years, such data must be retained on-line or in
other electronic form, and must be made available to any person or the
Commission upon request within 45 days, unless otherwise agreed.
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. Carriers and conferences must not charge a fee to the Commission
or any other Federal agency.
(b) Access date capability. Each tariff must 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
[[Page 27980]]
applicable surcharges. The access date also applies to the alignment of
tariff objects for any governing tariffs.
* * * * *
(d) Access to systems. Carriers and conferences must provide the
Commission reasonable access to their automated systems and records for
the Commission's review.
0
11. Amend Sec. 520.11 by:
0
a. Removing in the introductory text in paragraphs (a) and (c) the word
``shall'' and adding in its place the word ``must'';
0
b. Revising paragraphs (a)(5) and (b);
0
c. Removing paragraph (c)(1)(i);
0
d. Redesignating paragraphs (c)(1)(ii) and (iii) as (c)(1)(i) and (ii),
respectively;
0
e. Removing in newly redesignated paragraph (c)(1)(i) the word
``shall'' and adding in its place the word ``must'';
0
f. Revising newly redesignated paragraph (c)(1)(ii);
0
g. Removing paragraphs (c)(2) and (3); and
0
h. Adding paragraph (d).
The revisions and addition read as follows:
Sec. 520.11 Non-vessel-operating common carriers.
(a) * * *
(5) The number of its bond, insurance policy, or guaranty; and
* * * * *
(b) Agent for service. Every NVOCC not in the United States must
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 must also 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)(1) * * *
(ii) If two NVOCCs enter into a co-loading arrangement which
results in a shipper-to-carrier relationship, the tendering NVOCC must
describe its co-loading practices and specify its responsibility to pay
any charges for the transportation of the cargo. A shipper-to-carrier
relationship is presumed to exist where the receiving NVOCC issues a
bill of lading to the tendering NVOCC for carriage of the co-loaded
cargo.
(d) Annotation. An NVOCC which tenders cargo to another NVOCC must
annotate each applicable bill of lading with the identity of any other
NVOCC to which the shipment has been tendered. Such annotation must be
shown on the face of the bill of lading in a clear and legible manner.
0
12. Amend Sec. 520.12 by:
0
a. Revising paragraphs (a), (c), and (e); and
0
b. Removing in paragraphs (b)(2) and (d) the word ``shall'' and adding
in its place the word ``must''.
The revisions read as follows:
Sec. 520.12 Time/Volume rates.
(a) General. Common carriers or conferences must publish in their
tariffs, rates that are conditioned upon the receipt of a specified
aggregate volume of cargo or aggregate freight revenue over a specified
period of time.
* * * * *
(c) Accepted rates. Once a time/volume rate is accepted by one
shipper, it will remain in effect for the time specified, without
amendment. If no shipper gives notice within 30 days of publication, a
common carrier or conference may cancel the time/volume rate.
* * * * *
(e) Liquidated damages. Time/volume rates must not impose or
attempt to impose liquidated damages on any shipper that moves cargo
under the rate. Carriers and agreements must rerate cargo moved at the
applicable tariff rate, if a shipper fails to meet the requirements of
the time/volume offer.
0
13. Amend Sec. 520.13 by:
0
a. Revising paragraphs (a), (b)(2), (c)(4), (d)(2)(ii)(A), and
(d)(2)(ii)(B)(1); and
0
b. Removing paragraph (d)(2)(iii).
The revisions read as follows:
Sec. 520.13 Exemptions and exceptions.
(a) General. Exemptions from the requirements of this part are
governed by section 16 of the Act (46 U.S.C. 40103) and the
Commission's Rules of Practice and Procedure, Sec. 502.92, of this
chapter.
(b) * * *
(2) Controlled carriers in foreign commerce. A controlled common
carrier is exempt from the provisions of this part exclusively
applicable to controlled carriers when:
* * * * *
(c) * * *
(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 Surface Deployment and Distribution
Command and published in a universal service contract. An exact copy of
the universal service contract, including any amendments thereto, must
be provided to the Commission in electronic format upon request.
* * * * *
(d) * * *
(2) * * *
(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, if the
cargo does not originate in or is not destined to foreign countries
other than Canada, and if:
* * * * *
(B)(1) This exemption does not apply to cargo originating in or
destined to foreign countries other than Canada; and
* * * * *
0
14. Amend Sec. 520.14 by:
0
a. Revising paragraphs (b), (c)(1) through (3), and (d); and
0
b. Adding paragraph (c)(3)(iv).
The revisions and addition read as follows:
Sec. 520.14 Special permission
* * * * *
(b) Clerical errors. Typographical and/or clerical errors
constitute good cause for the exercise of special permission authority.
Every special permission application must plainly specify the error and
present clear evidence of its existence. The special permission
application must also include a full statement of the attending
circumstances. The special permission application must 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 must be made by the common
carrier, conference, or agent for publishing. Every such application
must be submitted to the Bureau of Trade Analysis and be accompanied by
a filing fee of $313.
(2) Applications for special permission must be made by letter,
submitted via mail or email, followed promptly by electronic payment of
the filing fee.
(3) Applications for special permission must contain the following
information:
* * * * *
(iv) A statement that identifies any part(s) of the application for
which confidential treatment is sought and a justification for such
confidential treatment. In such cases, the applicant must provide both
a confidential version and a public version of the application.
(d) Implementation. The authority granted by the Commission must be
[[Page 27981]]
used in its entirety, including the prompt publishing of the material
for which permission was requested. Applicants must use the special
case number assigned by the Commission with the symbol ``S.''
By the Commission.
William Cody,
Secretary.
[FR Doc. 2022-09592 Filed 5-9-22; 8:45 am]
BILLING CODE 6730-02-P
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