Notice of Inquiry; Vessel-Operating Common Carrier Definition and Application of the Term “Merchant” in Bills of Lading, 65042-65043 [2020-22602]

Download as PDF 65042 Federal Register / Vol. 85, No. 199 / Wednesday, October 14, 2020 / Notices In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission’s Home Page (http:// www.ferc.gov) using the eLibrary link. Enter the docket number excluding the last three digits in the docket number field to access the document. At this time, the Commission has suspended access to Commission’s Public Reference Room, due to the proclamation declaring a National Emergency concerning the Novel Coronavirus Disease (COVID–19), issued by the President on March 13, 2020. For assistance, contact FERC at FERCOnlineSupport@ferc.gov or call toll-free, (886) 208–3676 or TYY, (202) 502–8659. The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFile link at http://www.ferc.gov. In lieu of electronic filing, you may submit a paper copy. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852. Dated: October 6, 2020. Nathaniel J. Davis, Sr., Deputy Secretary. [FR Doc. 2020–22664 Filed 10–13–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Committee Management Officer of the FDIC, at (202) 898–7043. SUPPLEMENTARY INFORMATION: Agenda: The agenda will include a discussion of current issues affecting community banking. The agenda is subject to change. Any changes to the agenda will be announced at the beginning of the meeting. Type of Meeting: This meeting of the Advisory Committee on Community Banking will be Webcast live via the internet http://fdic.windrosemedia.com. For optimal viewing, a high-speed internet connection is recommended. Federal Deposit Insurance Corporation. Dated at Washington, DC, on October 8, 2020. Robert E. Feldman, Executive Secretary. BILLING CODE 6717–01–P FEDERAL DEPOSIT INSURANCE CORPORATION [FR Doc. 2020–22648 Filed 10–13–20; 8:45 am] FDIC Advisory Committee on Community Banking; Notice of Meeting BILLING CODE 6714–01–P Federal Deposit Insurance Corporation (FDIC). ACTION: Notice of open meeting. FEDERAL MARITIME COMMISSION In accordance with the Federal Advisory Committee Act, notice is hereby given of a meeting of the FDIC Advisory Committee on Community Banking. The Advisory Committee will provide advice and recommendations on a broad range of policy issues that have particular impact on small community banks throughout the United States and the local communities they serve, with a focus on rural areas. The meeting is open to the public. Out of an abundance of caution related to Notice of Inquiry; Vessel-Operating Common Carrier Definition and Application of the Term ‘‘Merchant’’ in Bills of Lading AGENCY: SUMMARY: jbell on DSKJLSW7X2PROD with NOTICES current and potential coronavirus developments, the public’s means to observe this Community Banking Advisory Committee meeting will be via a Webcast live on the internet. In addition, the meeting will be recorded and subsequently made available ondemand approximately two weeks after the event. DATES: Wednesday, October 28, 2020, from 1:00 p.m. to 5:30 p.m. ADDRESSES: To view the live event, visit http://fdic.windrosemedia.com. To view the recording, visit http:// fdic.windrosemedia.com/index.php? category=Community+Banking+ Advisory+Committee. If you require a reasonable accommodation to participate, please contact DisabilityProgram@fdic.gov or call 703– 562–2096 to make necessary arrangements. VerDate Sep<11>2014 19:15 Oct 13, 2020 Jkt 253001 [Docket No. 20–16] Federal Maritime Commission. Notice of inquiry. AGENCY: ACTION: The Federal Maritime Commission (‘‘FMC’’ or ‘‘Commission’’) is issuing this Notice of Inquiry (‘‘NOI’’) to solicit public comment on the practice of vessel-operating common carriers (VOCCs or carrier) defining SUMMARY: PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 ‘‘Merchant’’ in their bills of lading to apply to persons and entities with whom the VOCCs may not be in contractual privity. Generally, the Commission seeks public comment as to 1) how VOCCs apply the term ‘‘Merchant’’ in their bills of lading; 2) whether the definition, as applied, subjects third parties who are not in contractual privity with the carrier to joint or several liability; and 3) whether carriers have enforced the definition of merchant against third parties that have not consented to be bound by, or otherwise accept, the terms and conditions of the bill of lading. DATES: Submit comments on or before November 6, 2020. ADDRESSES: Submit comments to: Rachel E. Dickon, Secretary, Federal Maritime Commission, secretary@ fmc.gov, (email comments at attachments preferably in MS Word or PDF), 800 North Capitol Street NW, Room 1046, Washington, DC 20573– 0001, Phone: 202–523–5725. FOR FURTHER INFORMATION CONTACT: Benjamin K. Trogdon, Director, and Cory Cinque, Trial Attorney, Bureau of Enforcement, Federal Maritime Commission, 800 North Capitol Street NW, Washington, DC 20573–0001, Phone: 202–523–5783, Email: btrogdon@fmc.gov and ccinque@ fmc.gov. SUPPLEMENTARY INFORMATION: Submit Comments: Comments may be submitted by email as an attachment (preferably in Microsoft Word or PDF) addressed to secretary@fmc.gov on or before November 6, 2020. Include in the subject line: ‘‘Response to FMC NOI— Merchant Clause.’’ The Commission will provide confidential treatment for comments received to the extent permitted by law and will not post comments to the public docket. Questions regarding filing or treatment of confidential responses to this inquiry should be directed to the Commission’s Secretary, Rachel E. Dickon, at the telephone number or email provided above. This NOI will be made available via the Federal Register and on the Commission’s website at www.fmc.gov. Background: The Commission has received information from shipping industry participants that VOCCs have defined ‘‘merchant’’ in their respective bills of lading to include persons or entities who have no beneficial interest in the cargo, but rather are providing service as third parties on behalf of someone specifically identified on the bill of lading. The concerns expressed indicate that VOCCs may be enforcing the terms of the bill of lading (including, without E:\FR\FM\14OCN1.SGM 14OCN1 jbell on DSKJLSW7X2PROD with NOTICES Federal Register / Vol. 85, No. 199 / Wednesday, October 14, 2020 / Notices limitation, collection of freight rates and charges, equipment charges, detention and demurrage charges) jointly and severally against entities that are not party to, and have not agreed to be bound by the bill of lading. The Commission has been advised by thirdparty logistics providers, harbor truckers, stevedores, customs brokers and freight forwarders, many of whom have no connection to the cargo or the shipment, other than providing service to entities that may own or have a proprietary interest in the cargo covered by a VOCC bill of lading, that VOCCs seek payment from such third parties for rates and charges pursuant to the terms and conditions of the bill of lading. Allegations have also been received that VOCCs threaten to discontinue allowing such third parties to provide service for future shipments unless amounts due on current shipments are paid. This issue was raised in Docket No. 19–05, Interpretive Rule on Demurrage and Detention Under the Shipping Act by several commenters, including the New York New Jersey Freight Forwarders and Customs Brokers, the National Customs Brokers and Freight Forwarders Association, the Agricultural Transportation Coalition, as well as other industry participants since the issuance of the Final Rule. As noted in the Final Rule, ‘‘the Commission’s emphasis in the NPRM that ocean carriers bill the correct party reflected concerns raised by truckers that they were being required to pay charges that were more appropriately charged to others.’’ 85 FR 29638, at 29662 (May 18, 2020). Several commenters reiterated these concerns. AgTC contended that ‘‘carriers should impose detention and/or demurrage on the actual exporter or importer customer with whom the carrier has a contractual relationship.’’ The New York New Jersey Foreign Freight Forwarders & Brokers Association asserted that VOCCs define the term ‘‘merchant’’ in their bill of lading too broadly, resulting in parties being billed for demurrage and detention ‘‘regardless of whether they are truly in control of the cargo when the charges were incurred.’’ Id. The Commission clarified that one of its goals for the Interpretive Rule ‘‘was to emphasize the importance of ocean carriers and marine terminal operator bills aligning with contractual responsibilities.’’ Id. In doing so, the Commission noted that it ‘‘does not believe it is appropriate in this interpretive rule to prescribe’’ specific billing practices, or to address the application of the merchant definition as it related to such practices. Id. The Commission further noted it would VerDate Sep<11>2014 19:15 Oct 13, 2020 Jkt 253001 address such issues in the context of particular facts, considering all relevant arguments. Although the Commission incorporated reference to certain billing practices and regulations in the Final Rule, it declined to prescribe specific billing practices or regulations which would be deemed reasonable under 46 U.S.C. 41102(c). General contract law principles provide that one party cannot enforce a contract against another who did not assent to be bound by its terms and conditions. This can include situations where one party attempts to bind another party with unilaterally defined terms. Accordingly, the Commission has determined to request public comment on the manner in which VOCCs are defining the term ‘‘Merchant’’ and enforcing that definition in their bills of lading. The purpose of the inquiry is to determine whether such carrier enforcement (i.e., seeking to collect freight and other charges) is unfairly or unjustly wielded against third parties who have not directly contracted with the VOCC nor assented to be bound by the contract of carriage. The Commission encourages all interested parties, including VOCCs, shippers, ports, maritime terminal operators, ocean transportation intermediaries, truckers, stevedores or customs brokers to submit comments or to identify information relevant to the manner in which VOCCs have applied their respective definitions of ‘‘Merchant.’’ As part of this NOI, the Commission will also be contacting certain VOCCs to provide information about the manner in which they have defined and applied their definition of a ‘‘Merchant.’’ The Commission will consider relevant comments submitted by any party. Along with comments, commenters should provide their name, title/position, contact information (e.g., telephone number and/or email address), name and address of the company or other entity and the type of company or entity (e.g., carrier, exporter, importer, trade association, etc.). Responses to the NOI will help the Commission ascertain more precisely the practices of VOCCs, including whether they may be imposing liability on entities who may not have assented to be bound to the terms and conditions of a VOCC’s bill of lading, and in determining whether additional analyses or action by the Commission may be necessary. By the Commission. PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 65043 Issued: October 7, 2020. Rachel Dickon, Secretary. [FR Doc. 2020–22602 Filed 10–13–20; 8:45 am] BILLING CODE 6730–02–P FEDERAL MARITIME COMMISSION [PETITION NO. P2–20] Petition of CMA CGM S.A., American President Lines, LLC, APL Co. Pte. Ltd. and ANL Singapore Pte Ltd for a Temporary Exemption From Standard Tariff & Service Contract Filing Requirements; Notice of Filing and Request for Comments Served: October 8, 2020. Notice is hereby given that CMA CGM S.A., American President Lines, LLC, APL Co. Pte. Ltd. and ANL Singapore Pte Ltd (‘‘Petitioners’’) have petitioned the Commission pursuant to 46 CFR 502.92 for temporary exemption from 46 CFR 520.7(c) & 46 CFR 520.8(a)(1), 46 CFR 520.8(4), 46 CFR 530.3(i), and 46 CFR 530.14(a). Petitioner states it ‘‘seeks this temporary exemption for the sole purpose of best serving its customers by requesting retroactive application of filings impacted by the recent cyberattack against the CMA group.’’ In order for the Commission to make a thorough evaluation of the requested exemption and rulemaking presented in the Petition, pursuant to 46 CFR 502.92, interested parties are requested to submit views or arguments in reply to the Petition no later than October 15, 2020. Replies shall be sent to the Secretary by email to Secretary@fmc.gov and replies shall be served on Petitioner’s counsel, Draughn Arbona, usa.darbona@usa.cma-cgm.com. Non-confidential filings may be submitted by email as a PDF attachment to Secretary@fmc.gov and include in the subject line: P2–20 (Commenter/ Company). A confidential filing must be accompanied by a transmittal letter that identifies the filing as ‘‘ConfidentialRestricted’’ and describes the nature and extent of the confidential treatment requested. The Commission will provide confidential treatment to the extent allowed by law for confidential submissions, or parts of submissions, for which confidentiality has been requested. When a confidential filing is submitted, there must also be submitted a public version of the filing. Such public filing version shall exclude confidential materials, and shall indicate on the cover page and on each affected page ‘‘Confidential materials excluded.’’ The Petition will be posted on the Commission’s website at http:// E:\FR\FM\14OCN1.SGM 14OCN1

Agencies

[Federal Register Volume 85, Number 199 (Wednesday, October 14, 2020)]
[Notices]
[Pages 65042-65043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22602]


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FEDERAL MARITIME COMMISSION

[Docket No. 20-16]


Notice of Inquiry; Vessel-Operating Common Carrier Definition and 
Application of the Term ``Merchant'' in Bills of Lading

AGENCY: Federal Maritime Commission.

ACTION: Notice of inquiry.

-----------------------------------------------------------------------

SUMMARY: The Federal Maritime Commission (``FMC'' or ``Commission'') is 
issuing this Notice of Inquiry (``NOI'') to solicit public comment on 
the practice of vessel-operating common carriers (VOCCs or carrier) 
defining ``Merchant'' in their bills of lading to apply to persons and 
entities with whom the VOCCs may not be in contractual privity. 
Generally, the Commission seeks public comment as to 1) how VOCCs apply 
the term ``Merchant'' in their bills of lading; 2) whether the 
definition, as applied, subjects third parties who are not in 
contractual privity with the carrier to joint or several liability; and 
3) whether carriers have enforced the definition of merchant against 
third parties that have not consented to be bound by, or otherwise 
accept, the terms and conditions of the bill of lading.

DATES: Submit comments on or before November 6, 2020.

ADDRESSES:  Submit comments to: Rachel E. Dickon, Secretary, Federal 
Maritime Commission, [email protected], (email comments at attachments 
preferably in MS Word or PDF), 800 North Capitol Street NW, Room 1046, 
Washington, DC 20573-0001, Phone: 202-523-5725.

FOR FURTHER INFORMATION CONTACT:  Benjamin K. Trogdon, Director, and 
Cory Cinque, Trial Attorney, Bureau of Enforcement, Federal Maritime 
Commission, 800 North Capitol Street NW, Washington, DC 20573-0001, 
Phone: 202-523-5783, Email: [email protected] and [email protected].

SUPPLEMENTARY INFORMATION: 
    Submit Comments: Comments may be submitted by email as an 
attachment (preferably in Microsoft Word or PDF) addressed to 
[email protected] on or before November 6, 2020. Include in the subject 
line: ``Response to FMC NOI--Merchant Clause.'' The Commission will 
provide confidential treatment for comments received to the extent 
permitted by law and will not post comments to the public docket. 
Questions regarding filing or treatment of confidential responses to 
this inquiry should be directed to the Commission's Secretary, Rachel 
E. Dickon, at the telephone number or email provided above. This NOI 
will be made available via the Federal Register and on the Commission's 
website at www.fmc.gov.
    Background:
    The Commission has received information from shipping industry 
participants that VOCCs have defined ``merchant'' in their respective 
bills of lading to include persons or entities who have no beneficial 
interest in the cargo, but rather are providing service as third 
parties on behalf of someone specifically identified on the bill of 
lading. The concerns expressed indicate that VOCCs may be enforcing the 
terms of the bill of lading (including, without

[[Page 65043]]

limitation, collection of freight rates and charges, equipment charges, 
detention and demurrage charges) jointly and severally against entities 
that are not party to, and have not agreed to be bound by the bill of 
lading. The Commission has been advised by third-party logistics 
providers, harbor truckers, stevedores, customs brokers and freight 
forwarders, many of whom have no connection to the cargo or the 
shipment, other than providing service to entities that may own or have 
a proprietary interest in the cargo covered by a VOCC bill of lading, 
that VOCCs seek payment from such third parties for rates and charges 
pursuant to the terms and conditions of the bill of lading. Allegations 
have also been received that VOCCs threaten to discontinue allowing 
such third parties to provide service for future shipments unless 
amounts due on current shipments are paid.
    This issue was raised in Docket No. 19-05, Interpretive Rule on 
Demurrage and Detention Under the Shipping Act by several commenters, 
including the New York New Jersey Freight Forwarders and Customs 
Brokers, the National Customs Brokers and Freight Forwarders 
Association, the Agricultural Transportation Coalition, as well as 
other industry participants since the issuance of the Final Rule. As 
noted in the Final Rule, ``the Commission's emphasis in the NPRM that 
ocean carriers bill the correct party reflected concerns raised by 
truckers that they were being required to pay charges that were more 
appropriately charged to others.'' 85 FR 29638, at 29662 (May 18, 
2020). Several commenters reiterated these concerns. AgTC contended 
that ``carriers should impose detention and/or demurrage on the actual 
exporter or importer customer with whom the carrier has a contractual 
relationship.'' The New York New Jersey Foreign Freight Forwarders & 
Brokers Association asserted that VOCCs define the term ``merchant'' in 
their bill of lading too broadly, resulting in parties being billed for 
demurrage and detention ``regardless of whether they are truly in 
control of the cargo when the charges were incurred.'' Id.
    The Commission clarified that one of its goals for the Interpretive 
Rule ``was to emphasize the importance of ocean carriers and marine 
terminal operator bills aligning with contractual responsibilities.'' 
Id. In doing so, the Commission noted that it ``does not believe it is 
appropriate in this interpretive rule to prescribe'' specific billing 
practices, or to address the application of the merchant definition as 
it related to such practices. Id. The Commission further noted it would 
address such issues in the context of particular facts, considering all 
relevant arguments. Although the Commission incorporated reference to 
certain billing practices and regulations in the Final Rule, it 
declined to prescribe specific billing practices or regulations which 
would be deemed reasonable under 46 U.S.C. 41102(c).
    General contract law principles provide that one party cannot 
enforce a contract against another who did not assent to be bound by 
its terms and conditions. This can include situations where one party 
attempts to bind another party with unilaterally defined terms. 
Accordingly, the Commission has determined to request public comment on 
the manner in which VOCCs are defining the term ``Merchant'' and 
enforcing that definition in their bills of lading.
    The purpose of the inquiry is to determine whether such carrier 
enforcement (i.e., seeking to collect freight and other charges) is 
unfairly or unjustly wielded against third parties who have not 
directly contracted with the VOCC nor assented to be bound by the 
contract of carriage. The Commission encourages all interested parties, 
including VOCCs, shippers, ports, maritime terminal operators, ocean 
transportation intermediaries, truckers, stevedores or customs brokers 
to submit comments or to identify information relevant to the manner in 
which VOCCs have applied their respective definitions of ``Merchant.'' 
As part of this NOI, the Commission will also be contacting certain 
VOCCs to provide information about the manner in which they have 
defined and applied their definition of a ``Merchant.''
    The Commission will consider relevant comments submitted by any 
party. Along with comments, commenters should provide their name, 
title/position, contact information (e.g., telephone number and/or 
email address), name and address of the company or other entity and the 
type of company or entity (e.g., carrier, exporter, importer, trade 
association, etc.).
    Responses to the NOI will help the Commission ascertain more 
precisely the practices of VOCCs, including whether they may be 
imposing liability on entities who may not have assented to be bound to 
the terms and conditions of a VOCC's bill of lading, and in determining 
whether additional analyses or action by the Commission may be 
necessary.

    By the Commission.

    Issued: October 7, 2020.
Rachel Dickon,
Secretary.
[FR Doc. 2020-22602 Filed 10-13-20; 8:45 am]
BILLING CODE 6730-02-P