Carrier Automated Tariffs, 18240-18243 [2021-06128]

Download as PDF 18240 Federal Register / Vol. 86, No. 66 / Thursday, April 8, 2021 / Proposed Rules E.O. 13175 (see above), the Agency applied the standards established by the Tribe. In addition, the Agency considered the Interstate Technology and Regulatory Council’s February 2006 technical and regulatory guideline, ‘‘Characterization, Design, Construction, and Monitoring of Bioreactor Landfills.’’ Nothing about this analysis has changed since the 2009 site-specific rule was promulgated nor does the proposed extension of the total possible term of the RD&D unit’s operations in accordance with the site-specific rule from 12 years to 21 years affect this analysis. Congressional Review Act (CRA). This action is not subject to the CRA because the term ‘‘rule’’ as it is used in the CRA does not include ‘‘any rule of particular applicability,’’ such as a site-specific rule. See, 5 U.S.C. Section 804(3)(A). Environmental Justice—Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and the accompanying presidential memorandum advising Federal agencies to identify and address, whenever feasible, disproportionately high and adverse human health or environmental effects on minority communities or low-income communities. The action will not adversely impact minorities or lowincome communities. Authority: Sections 1008, 2002, 4004, and 4010 of the Solid Waste Disposal Act, as amended, 42 U.S.C. Sections 6907, 6912, 6944, and 6949a. Delegation 8–54, SiteSpecific Rules for Flexibility from Owners/ Operators of Municipal Solid Waste Landfills (MSWLFs) in Indian Country, November 24, 2010. Regional Delegation R9–8–54, October 10, 2014. List of Subjects in 40 CFR Part 258 Environmental protection, Municipal landfills, Reporting and recordkeeping requirements, Waste treatment and disposal. Dated: March 26, 2021. Steven Barhite, Acting Director, Land, Chemicals and Redevelopment Division, Region IX. khammond on DSKJM1Z7X2PROD with PROPOSALS For the reasons set forth in the preamble, the EPA proposes to amend 40 CFR part 258 as follows: PART 258—CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS 1. The authority citation for part 258 continues to read as follows: ■ Authority: 33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c) and 6949a(c), 6981(a). VerDate Sep<11>2014 16:26 Apr 07, 2021 Jkt 253001 Subpart D—Design Criteria 2. Revise § 258.42 paragraphs (a)(5) through (10) to read as follows: ■ § 258.42 Approval of site-specific flexibility requests in Indian country. (a) * * * (5) The owner and/or operator shall submit reports to the Director of the Land, Chemicals and Redevelopment Division at EPA Region 9 as specified in ‘‘Research, Development, and Demonstration Permit Application Salt River Landfill,’’ dated September 24, 2007 and amended on April 8, 2008, including an annual report showing whether and to what extent the site is progressing in attaining project goals. The annual report will also include a summary of all monitoring and testing results, as specified in the application. (6) The owner and/or operator may not operate the facility pursuant to the authority granted by this section if there is any deviation from the terms, conditions, and requirements of this section unless the operation of the facility will continue to conform to the standards set forth in § 258.4 and the owner and/or operator has obtained the prior written approval of the Director of the Land, Chemicals and Redevelopment Division at EPA Region 9 or the Director’s designee to implement corrective measures or otherwise operate the facility subject to such deviation. The Director of the Land, Chemicals and Redevelopment Division or designee shall provide an opportunity for the public to comment on any significant deviation prior to providing written approval of the deviation. (7) Paragraphs (a)(2), (3), (5), (6) and (9) of this section will terminate on March 19, 2024, unless the Director of the Land, Chemicals and Redevelopment Division at EPA Region 9 or the Director’s designee renews this authority in writing. Any such renewal may extend the authority granted under paragraphs (a)(2), (3), (5), (6) and (9) of this section for up to an additional three years, and multiple renewals (up to a total of 21 years from March 19, 2009) may be provided. The Director of the Land, Chemicals and Redevelopment Division or designee shall provide an opportunity for the public to comment on any renewal request prior to providing written approval or disapproval of such request. (8) In no event will the provisions of paragraphs (a)(2), (3), (5), (6) or (9) of this section remain in effect after March 19, 2030, 21 years after the March 19, 2009 date of publication of the sitespecific rule in this section. Upon PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 termination of paragraphs (a)(2), (3), (5), (6) and (9) of this section, and except with respect to paragraphs (a)(1) and (4) of this section, the owner and/or operator shall return to compliance with the regulatory requirements which would have been in effect absent the flexibility provided through the sitespecific rule in this section. (9) In seeking any renewal of the authority granted under or other requirements of paragraphs (a)(2), (3), (5) and (6) of this section, the owner and/or operator shall provide a detailed assessment of the project showing the status with respect to achieving project goals, a list of problems and status with respect to problem resolutions, and any other requirements that the Director of the Land, Chemicals and Redevelopment Division at EPA Region 9 or the Director’s designee has determined are necessary for the approval of any renewal and has communicated in writing to the owner and operator. (10) The owner and/or operator’s authority to operate the landfill in accordance with paragraphs (a)(2), (3), (5), (6) and (9) of this section shall terminate if the Director of the Land, Chemicals and Redevelopment Division at EPA Region 9 or the Director’s designee determines that the overall goals of the project are not being attained, including protection of human health or the environment. Any such determination shall be communicated in writing to the owner and operator. [FR Doc. 2021–06902 Filed 4–7–21; 8:45 am] BILLING CODE 6560–50–P FEDERAL MARITIME COMMISSION 46 CFR Part 520 [Docket No. 21–03] RIN 3072–AC86 Carrier Automated Tariffs Federal Maritime Commission. Advance notice of proposed rulemaking. AGENCY: ACTION: The Federal Maritime Commission (Commission) has identified inconsistencies in the manner in which different carriers are interpreting and applying certain aspects of the Commission’s rules. This Advance Notice of Proposed Rulemaking (ANPRM) will facilitate a fuller understanding of these issues prior to the Commission potentially proposing regulatory changes to its tariff regulations. The Commission observes that carriers are charging widely varying SUMMARY: E:\FR\FM\08APP1.SGM 08APP1 Federal Register / Vol. 86, No. 66 / Thursday, April 8, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS fees and imposing varying minimum requirements for access to common carrier tariffs. The Commission seeks information regarding the impact of such fees and minimum requirements on public access to common carrier rules, rates, practices and charges in published tariffs and whether existing fees or requirements are unreasonable. Additionally, certain non-vesseloperating common carriers (NVOCCs) are applying what are commonly known as ‘‘pass-through charges’’ inconsistently under common carrier tariffs, and the Commission seeks to gain a broader understanding and information from industry stakeholders, including NVOCCs and vessel-operating common carriers (VOCCs). DATES: Submit comments on or before June 7, 2021. ADDRESSES: You may submit comments, identified by Docket No. 21–03, by the following methods: • Email: secretary@fmc.gov. 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 textsearchable 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: https://www2.fmc.gov/readingroom/ proceeding/21-03/. FOR FURTHER INFORMATION CONTACT: Rachel E. Dickon, Secretary; Phone: (202) 523–5725; Email: secretary@ fmc.gov. SUPPLEMENTARY INFORMATION: I. Background The Shipping Act of 1984, as amended (46 U.S.C. 40101–41309) (Shipping Act or Act) requires that common carriers (i.e., VOCCs and NVOCCs) and conferences keep open for public inspection in an automated tariff system, their tariffs showing all rates, charges, classifications, rules and practices, and to make those tariffs available electronically to any person without time, quantity, or other limitation. 46 U.S.C. 40501(c). The Act VerDate Sep<11>2014 16:26 Apr 07, 2021 Jkt 253001 charges the Commission with establishing requirements for the accuracy and accessibility of all private automated systems used to provide tariff information to the public. § 40501(g)(1). The Act also provides that a reasonable fee may be charged for such access, except that Federal agencies may not be charged a fee. § 40501(c). Pursuant to the Commission’s Plan for Regulatory Review of Existing FMC Rules, the Commission’s regulations at 46 CFR part 520, Carrier Automated Tariffs, are currently under review.1 As part of this initiative, two issues have been identified that would benefit from receiving clarifying information from industry participants and other supply chain stakeholders. Accordingly, the Commission is seeking comment regarding: (1) Tariff access fees and minimum access requirements; and (2) pass-through charges prior to potentially moving forward with a proposed rulemaking. II. Request for Comment A. Tariff Access Fees Before the passage of the Ocean Shipping Reform Act of 1998 (OSRA), which became effective May 1, 1999, carrier and conference tariffs were filed 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 Commission promulgated implementing regulations reflecting this change effective May 1, 1999, in FMC Docket No. 98–29, Carrier Automated Tariff Systems.2 Once carriers and conferences deployed their carrier automated tariff systems, the Commission began receiving informal complaints regarding certain tariff access fees and minimum subscription requirements that potential tariff users believed were excessive. As a result, on May 9, 2000, the Commission initiated FMC Docket No. 00–07, Advance Notice of Proposed Rulemaking Concerning Public Access Charges to Carrier Automated Tariffs and Tariff Systems Under the Ocean Shipping Reform Act of 1998, to determine whether certain tariff access charges and monthly subscription requirements might limit the public’s 1 See Plan for Regulatory Review of Existing FMC Rules, updated November 23, 2020, at https:// www.fmc.gov/wp-content/uploads/2020/11/ RegulatoryReformPlan.pdf. 2 See Final Rule and Interim Final Rule, Carrier Automated Tariff Systems, 64 FR 11218 (March 8, 1999). PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 18241 ability to access tariffs and tariff systems, and sought public comment to address the reasonableness of tariff access charges. Based on an assessment of the comments received in response to Docket No. 00–07, the Commission determined that promulgating a proposed rule on tariff access charges and their reasonableness was not necessary. The Commission did, however, issue a Circular Letter to provide guidance to common carriers, conferences, and tariff publishers with respect to the issue of reasonable fees, and subsequently discontinued the proceeding.3 In relevant part, Circular Letter No. 00–2 read: The Commission has not promulgated regulations governing tariff access charges. However, it appears that ‘‘a reasonable charge’’ for access should recover only costs and expenses incurred by carriers in making their tariffs accessible to the public, and should not recover the costs and expenses associated with: (1) Developing or publishing a tariff/ essential terms publication; (2) Providing access to federal agencies; (3) Providing access to the publishing carrier’s employees or agents or to a publishing conference’s employees or its members’ employees or agents; or (4) Developing any other function or service for possible use by a carrier’s or conference’s employees or agents, as the case may be. Any subscription fees assessed should also be consistent with these criteria. While the foregoing relates to the Commission’s experience at the inception of carrier automated tariff systems in 1999, more recent experience indicates that some tariff access fees may be so high that they effectively prevent tariff users from reviewing certain carrier tariffs, particularly those with substantial minimum charges, such as $1,000 or $1,500.4 This can be an issue, not only for shippers who primarily ship cargo under tariff rates, but also for shippers using service contracts. Once the shipper’s minimum quantity commitment under the service contract has been fulfilled, the carrier often rates subsequent shipments under its tariff rates, For this reason, shippers may have a need to access tariffs to determine the applicable rate for their cargo once the volume commitment for their service contract has been fulfilled. The unimpeded access to tariffs is also 3 See FMC Docket No. 00–07 (Proceeding Discontinued, July 11, 2001) at https:// www2.fmc.gov/readingroom/proceeding/00-07/. See also Circular Letter No. 00–2, Charges for Access to Tariffs and Tariff Systems (October 6, 2000) at https://www.fmc.gov/about-the-fmc/circulars/. 4 Fee range based on information reported to Commission staff when contacted periodically by users for guidance and assistance with tariff access. E:\FR\FM\08APP1.SGM 08APP1 18242 Federal Register / Vol. 86, No. 66 / Thursday, April 8, 2021 / Proposed Rules imperative during periods of rate volatility, to ensure the shipper is aware of the most current applicable rates. The Commission notes, however, that many major VOCCs and NVOCCs that self-publish tariffs provide access free of charge. While for such carriers, it is customary to request a user to register for tariff access by providing contact information and creating a Login/ Username and Password. Once this has been accomplished, free access has generally been granted. For those carriers that do not provide tariff access free of charge, access fees appear to vary widely, with some carriers charging what appear to be excessive fees. This may indicate that, contrary to guidance provided by the Commission in Circular Letter 00–2, some carriers are not relating charges only to the actual costs of providing public access to tariff systems. For the foregoing reasons, the Commission is concerned that the level of some tariff access fees may impair the public’s ability to access the information in carrier tariffs. Accordingly, the Commission seeks responses to the following questions, as well as any additional information related to the public’s experience with tariff access fees. 1. Do you agree or disagree with the Commission’s guidance found in Circular Letter 00–2, that ‘‘ ‘a reasonable charge’ for access should recover only costs and expenses incurred by carriers in making their tariffs accessible to the public’’? In your response, please provide examples of potential other costs that should be included or excluded in an access fee, and why. 2. In your experience, do you believe the carriers you do business with are charging tariff access fees that only recover the costs and expenses incurred in making tariffs accessible to the public? If not, please provide examples where this may not be the case. 3. Are you inhibited from accessing common carrier tariffs because of tariff access fees or tariff access processes? In your response, where possible, please include the carrier name, tariff number and title, tariff publisher (if applicable), and access fees for any tariffs you believe have excessive fees or unreasonable access requirements. khammond on DSKJM1Z7X2PROD with PROPOSALS B. Pass-Through Charges The Commission has become aware of disparate industry interpretations of the types of charges that may be ‘‘passed through’’ to shippers without markup (not to exceed the charge the common carrier incurs) in connection with shipments moving under common carrier tariffs, particularly by NVOCCs. While the Commission’s tariff regulations do not define so called ‘‘passthrough charges,’’ such charges are referenced in 46 CFR 520.8, Effective Dates, VerDate Sep<11>2014 16:26 Apr 07, 2021 Jkt 253001 which specifies the types of tariff amendments that may become effective immediately upon tariff publication. More specifically, § 520.8(b)(4) provides that amendments may take effect upon publication that make changes in charges for terminal services, canal tolls, additional charges, or other provisions not under the control of the common carriers or conferences, which merely acts as a collection agent for such charges and the agency making such changes does so without notifying the tariff owner. Historically, we understand VOCCs have relied on this provision to make changes to port charges, governmental charges, and other similar charges beyond their control effective upon publication in their tariffs. In contrast, NVOCCs have varied widely in the types of charges they have attempted to charge to shippers pursuant to § 520.8(b)(4) when applying tariff rates, particularly with respect to VOCC charges and surcharges. The Commission has encountered narrow interpretations by NVOCCs of the types of VOCC charges that can be passed through without markup, but more commonly, broader interpretations by NVOCCs have been seen, including the pass-through of all VOCC charges and surcharges, as well as VOCC General Rate Increases (GRIs). In this regard, some NVOCCs appear to be conflating the Commission’s tariff regulations with the Commission’s 2018 rulemaking that expanded the flexibility of NVOCC Negotiated Rate Arrangements (NRAs) and NVOCC Service Arrangements (NSAs).5 NVOCCs using NRAs are exempt from the general tariff publication requirements in 46 U.S.C. 40501 and many of the corresponding regulations in 46 CFR part 520. 46 CFR 532.2. Unlike common carriers subject to the tariff requirements in 46 U.S.C. 40501 and 46 CFR part 520, NVOCCs using NRAs must describe the applicable pass-through charges in either the NRA or rules tariff but need not specify the amount of those charges. 46 CFR 532.5(d)(2). Rather ‘‘[f]or any passthrough charge for which a specific amount is not included in the NRA or the rules tariff, the NVOCC may only invoice the shipper for charges the NVOCC incurs, with no markup.’’ 46 CFR 532.5(d)(2)(iv). For NVOCC NRAs, the Commission provided greater flexibility by further stating that ‘‘[t]he Commission is removing the prohibition on the pass-through of ocean carrier GRIs in order to increase efficiency and 5 See Final Rule in FMC Docket No. 17–10, Amendments to Regulations Governing NVOCC Negotiated Rate Arrangements and NVOCC Service Arrangements, 83 FR 34780 (July 23, 2018). PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 flexibility within the NRA framework.’’ 83 FR 34780, 34787 (July 23, 2018). The current tariff regulations permit common carriers to apply changes to any governmental or non-governmental charge beyond the carrier’s control (e.g., terminal handling charges or canal tolls) effective on publication. 46 CFR 520.8(b)(4). But the Commission does not view VOCC GRIs as falling within this provision. A GRI is an adjustment to the base freight rate rather than a surcharge and may not become effective immediately on publication under § 520.8(b)(4). While the Commission has treated VOCC GRIs as pass-through charges under the NVOCC NRA exemption from tariff rate publication, there is no corresponding provision in the Commission’s regulations for cargo moving under tariffs. VOCCs and NVOCCs are common carriers in their relationship with their shippers. Therefore, like VOCCs, NVOCCs must also publish GRIs in their tariffs and provide 30 days’ notice of the increase to their shippers, as required by the Commission’s regulation at 46 CFR 520.8(a)(1). Additionally, common carriers, which include NVOCCs, must include in their tariffs all rates and charges, including the charges described in 46 CFR 520.8(b)(4). 46 CFR 520.3. The Commission is concerned that the widely varying interpretations and inappropriate application of so-called pass-through charges under common carrier tariffs may result in harm to shippers. The practice of some carriers to incorrectly pass-through charges could deny the shipper full transparency regarding the total freight charges that will apply to a shipment, as well as deprive the shipper of advance notice of any increase in those charges. The Commission, therefore, seeks responses to the following questions, as well as any additional information related to the public’s experience with pass-through charges. 1. For an ocean common carrier (VOCC), what are the typical charges that are not under its control and for which the ocean common carrier merely acts as a collection agent? 2. For an ocean common carrier (VOCC), how does its tariff specify or address those charges for which it merely acts as a collection agent? 3. For an NVOCC, what are the typical charges that are not under its control and for which the NVOCC merely acts as a collection agent? 4. For an NVOCC, how does its tariff specify or address those charges for which it merely acts as a collection agent? 5. How do common carriers communicate to shippers that the so- E:\FR\FM\08APP1.SGM 08APP1 Federal Register / Vol. 86, No. 66 / Thursday, April 8, 2021 / Proposed Rules called pass-through charges are for the account of shippers? 6. How can shippers be assured that common carriers collect pass-through charges without adding any mark-up? In your response, where possible, please include the carrier name(s) and the relevant tariff provisions. III. Public Participation How do I prepare and submit comments? khammond on DSKJM1Z7X2PROD with PROPOSALS 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. VerDate Sep<11>2014 16:26 Apr 07, 2021 Jkt 253001 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: • 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. • 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. • 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. PO 00000 Frm 00028 Fmt 4702 Sfmt 9990 18243 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. In addition to soliciting the comments of regulated entities, the shipping public and supply chain stakeholders, the Commission encourages any interested party to comment on these questions and any experience they have related to these two issues. By the Commission. Rachel E. Dickon, Secretary. [FR Doc. 2021–06128 Filed 4–7–21; 8:45 am] BILLING CODE 6730–02–P E:\FR\FM\08APP1.SGM 08APP1

Agencies

[Federal Register Volume 86, Number 66 (Thursday, April 8, 2021)]
[Proposed Rules]
[Pages 18240-18243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06128]


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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: Advance notice of proposed rulemaking.

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SUMMARY: The Federal Maritime Commission (Commission) has identified 
inconsistencies in the manner in which different carriers are 
interpreting and applying certain aspects of the Commission's rules. 
This Advance Notice of Proposed Rulemaking (ANPRM) will facilitate a 
fuller understanding of these issues prior to the Commission 
potentially proposing regulatory changes to its tariff regulations. The 
Commission observes that carriers are charging widely varying

[[Page 18241]]

fees and imposing varying minimum requirements for access to common 
carrier tariffs. The Commission seeks information regarding the impact 
of such fees and minimum requirements on public access to common 
carrier rules, rates, practices and charges in published tariffs and 
whether existing fees or requirements are unreasonable. Additionally, 
certain non-vessel-operating common carriers (NVOCCs) are applying what 
are commonly known as ``pass-through charges'' inconsistently under 
common carrier tariffs, and the Commission seeks to gain a broader 
understanding and information from industry stakeholders, including 
NVOCCs and vessel-operating common carriers (VOCCs).

DATES: Submit comments on or before June 7, 2021.

ADDRESSES: You may submit comments, identified by Docket No. 21-03, by 
the following methods:
     Email: [email protected]. 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: 
https://www2.fmc.gov/readingroom/proceeding/21-03/.

FOR FURTHER INFORMATION CONTACT: Rachel E. Dickon, Secretary; Phone: 
(202) 523-5725; Email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    The Shipping Act of 1984, as amended (46 U.S.C. 40101-41309) 
(Shipping Act or Act) requires that common carriers (i.e., VOCCs and 
NVOCCs) and conferences keep open for public inspection in an automated 
tariff system, their tariffs showing all rates, charges, 
classifications, rules and practices, and to make those tariffs 
available electronically to any person without time, quantity, or other 
limitation. 46 U.S.C. 40501(c). The Act charges the Commission with 
establishing requirements for the accuracy and accessibility of all 
private automated systems used to provide tariff information to the 
public. Sec.  40501(g)(1). The Act also provides that a reasonable fee 
may be charged for such access, except that Federal agencies may not be 
charged a fee. Sec.  40501(c).
    Pursuant to the Commission's Plan for Regulatory Review of Existing 
FMC Rules, the Commission's regulations at 46 CFR part 520, Carrier 
Automated Tariffs, are currently under review.\1\ As part of this 
initiative, two issues have been identified that would benefit from 
receiving clarifying information from industry participants and other 
supply chain stakeholders. Accordingly, the Commission is seeking 
comment regarding: (1) Tariff access fees and minimum access 
requirements; and (2) pass-through charges prior to potentially moving 
forward with a proposed rulemaking.
---------------------------------------------------------------------------

    \1\ See Plan for Regulatory Review of Existing FMC Rules, 
updated November 23, 2020, at https://www.fmc.gov/wp-content/uploads/2020/11/RegulatoryReformPlan.pdf.
---------------------------------------------------------------------------

II. Request for Comment

A. Tariff Access Fees

    Before the passage of the Ocean Shipping Reform Act of 1998 (OSRA), 
which became effective May 1, 1999, carrier and conference tariffs were 
filed 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 Commission promulgated implementing regulations reflecting this 
change effective May 1, 1999, in FMC Docket No. 98-29, Carrier 
Automated Tariff Systems.\2\ Once carriers and conferences deployed 
their carrier automated tariff systems, the Commission began receiving 
informal complaints regarding certain tariff access fees and minimum 
subscription requirements that potential tariff users believed were 
excessive. As a result, on May 9, 2000, the Commission initiated FMC 
Docket No. 00-07, Advance Notice of Proposed Rulemaking Concerning 
Public Access Charges to Carrier Automated Tariffs and Tariff Systems 
Under the Ocean Shipping Reform Act of 1998, to determine whether 
certain tariff access charges and monthly subscription requirements 
might limit the public's ability to access tariffs and tariff systems, 
and sought public comment to address the reasonableness of tariff 
access charges. Based on an assessment of the comments received in 
response to Docket No. 00-07, the Commission determined that 
promulgating a proposed rule on tariff access charges and their 
reasonableness was not necessary. The Commission did, however, issue a 
Circular Letter to provide guidance to common carriers, conferences, 
and tariff publishers with respect to the issue of reasonable fees, and 
subsequently discontinued the proceeding.\3\ In relevant part, Circular 
Letter No. 00-2 read:
---------------------------------------------------------------------------

    \2\ See Final Rule and Interim Final Rule, Carrier Automated 
Tariff Systems, 64 FR 11218 (March 8, 1999).
    \3\ See FMC Docket No. 00-07 (Proceeding Discontinued, July 11, 
2001) at https://www2.fmc.gov/readingroom/proceeding/00-07/. See 
also Circular Letter No. 00-2, Charges for Access to Tariffs and 
Tariff Systems (October 6, 2000) at https://www.fmc.gov/about-the-fmc/circulars/.

    The Commission has not promulgated regulations governing tariff 
access charges. However, it appears that ``a reasonable charge'' for 
access should recover only costs and expenses incurred by carriers 
in making their tariffs accessible to the public, and should not 
recover the costs and expenses associated with:
    (1) Developing or publishing a tariff/essential terms 
publication;
    (2) Providing access to federal agencies;
    (3) Providing access to the publishing carrier's employees or 
agents or to a publishing conference's employees or its members' 
employees or agents; or
    (4) Developing any other function or service for possible use by 
a carrier's or conference's employees or agents, as the case may be.

    Any subscription fees assessed should also be consistent with these 
criteria.
    While the foregoing relates to the Commission's experience at the 
inception of carrier automated tariff systems in 1999, more recent 
experience indicates that some tariff access fees may be so high that 
they effectively prevent tariff users from reviewing certain carrier 
tariffs, particularly those with substantial minimum charges, such as 
$1,000 or $1,500.\4\ This can be an issue, not only for shippers who 
primarily ship cargo under tariff rates, but also for shippers using 
service contracts. Once the shipper's minimum quantity commitment under 
the service contract has been fulfilled, the carrier often rates 
subsequent shipments under its tariff rates, For this reason, shippers 
may have a need to access tariffs to determine the applicable rate for 
their cargo once the volume commitment for their service contract has 
been fulfilled. The unimpeded access to tariffs is also

[[Page 18242]]

imperative during periods of rate volatility, to ensure the shipper is 
aware of the most current applicable rates.
---------------------------------------------------------------------------

    \4\ Fee range based on information reported to Commission staff 
when contacted periodically by users for guidance and assistance 
with tariff access.
---------------------------------------------------------------------------

    The Commission notes, however, that many major VOCCs and NVOCCs 
that self-publish tariffs provide access free of charge. While for such 
carriers, it is customary to request a user to register for tariff 
access by providing contact information and creating a Login/Username 
and Password. Once this has been accomplished, free access has 
generally been granted. For those carriers that do not provide tariff 
access free of charge, access fees appear to vary widely, with some 
carriers charging what appear to be excessive fees. This may indicate 
that, contrary to guidance provided by the Commission in Circular 
Letter 00-2, some carriers are not relating charges only to the actual 
costs of providing public access to tariff systems.
    For the foregoing reasons, the Commission is concerned that the 
level of some tariff access fees may impair the public's ability to 
access the information in carrier tariffs. Accordingly, the Commission 
seeks responses to the following questions, as well as any additional 
information related to the public's experience with tariff access fees.

    1. Do you agree or disagree with the Commission's guidance found 
in Circular Letter 00-2, that `` `a reasonable charge' for access 
should recover only costs and expenses incurred by carriers in 
making their tariffs accessible to the public''? In your response, 
please provide examples of potential other costs that should be 
included or excluded in an access fee, and why.
    2. In your experience, do you believe the carriers you do 
business with are charging tariff access fees that only recover the 
costs and expenses incurred in making tariffs accessible to the 
public? If not, please provide examples where this may not be the 
case.
    3. Are you inhibited from accessing common carrier tariffs 
because of tariff access fees or tariff access processes?

In your response, where possible, please include the carrier name, 
tariff number and title, tariff publisher (if applicable), and access 
fees for any tariffs you believe have excessive fees or unreasonable 
access requirements.

B. Pass-Through Charges

    The Commission has become aware of disparate industry 
interpretations of the types of charges that may be ``passed 
through'' to shippers without markup (not to exceed the charge the 
common carrier incurs) in connection with shipments moving under 
common carrier tariffs, particularly by NVOCCs. While the 
Commission's tariff regulations do not define so called ``pass-
through charges,'' such charges are referenced in 46 CFR 520.8, 
Effective Dates, which specifies the types of tariff amendments that 
may become effective immediately upon tariff publication. More 
specifically, Sec.  520.8(b)(4) provides that amendments may take 
effect upon publication that make changes in charges for terminal 
services, canal tolls, additional charges, or other provisions not 
under the control of the common carriers or conferences, which 
merely acts as a collection agent for such charges and the agency 
making such changes does so without notifying the tariff owner.

    Historically, we understand VOCCs have relied on this provision to 
make changes to port charges, governmental charges, and other similar 
charges beyond their control effective upon publication in their 
tariffs. In contrast, NVOCCs have varied widely in the types of charges 
they have attempted to charge to shippers pursuant to Sec.  520.8(b)(4) 
when applying tariff rates, particularly with respect to VOCC charges 
and surcharges. The Commission has encountered narrow interpretations 
by NVOCCs of the types of VOCC charges that can be passed through 
without markup, but more commonly, broader interpretations by NVOCCs 
have been seen, including the pass-through of all VOCC charges and 
surcharges, as well as VOCC General Rate Increases (GRIs).
    In this regard, some NVOCCs appear to be conflating the 
Commission's tariff regulations with the Commission's 2018 rulemaking 
that expanded the flexibility of NVOCC Negotiated Rate Arrangements 
(NRAs) and NVOCC Service Arrangements (NSAs).\5\ NVOCCs using NRAs are 
exempt from the general tariff publication requirements in 46 U.S.C. 
40501 and many of the corresponding regulations in 46 CFR part 520. 46 
CFR 532.2. Unlike common carriers subject to the tariff requirements in 
46 U.S.C. 40501 and 46 CFR part 520, NVOCCs using NRAs must describe 
the applicable pass-through charges in either the NRA or rules tariff 
but need not specify the amount of those charges. 46 CFR 532.5(d)(2). 
Rather ``[f]or any pass-through charge for which a specific amount is 
not included in the NRA or the rules tariff, the NVOCC may only invoice 
the shipper for charges the NVOCC incurs, with no markup.'' 46 CFR 
532.5(d)(2)(iv). For NVOCC NRAs, the Commission provided greater 
flexibility by further stating that ``[t]he Commission is removing the 
prohibition on the pass-through of ocean carrier GRIs in order to 
increase efficiency and flexibility within the NRA framework.'' 83 FR 
34780, 34787 (July 23, 2018).
---------------------------------------------------------------------------

    \5\ See Final Rule in FMC Docket No. 17-10, Amendments to 
Regulations Governing NVOCC Negotiated Rate Arrangements and NVOCC 
Service Arrangements, 83 FR 34780 (July 23, 2018).
---------------------------------------------------------------------------

    The current tariff regulations permit common carriers to apply 
changes to any governmental or non-governmental charge beyond the 
carrier's control (e.g., terminal handling charges or canal tolls) 
effective on publication. 46 CFR 520.8(b)(4). But the Commission does 
not view VOCC GRIs as falling within this provision. A GRI is an 
adjustment to the base freight rate rather than a surcharge and may not 
become effective immediately on publication under Sec.  520.8(b)(4). 
While the Commission has treated VOCC GRIs as pass-through charges 
under the NVOCC NRA exemption from tariff rate publication, there is no 
corresponding provision in the Commission's regulations for cargo 
moving under tariffs. VOCCs and NVOCCs are common carriers in their 
relationship with their shippers. Therefore, like VOCCs, NVOCCs must 
also publish GRIs in their tariffs and provide 30 days' notice of the 
increase to their shippers, as required by the Commission's regulation 
at 46 CFR 520.8(a)(1). Additionally, common carriers, which include 
NVOCCs, must include in their tariffs all rates and charges, including 
the charges described in 46 CFR 520.8(b)(4). 46 CFR 520.3.
    The Commission is concerned that the widely varying interpretations 
and inappropriate application of so-called pass-through charges under 
common carrier tariffs may result in harm to shippers. The practice of 
some carriers to incorrectly pass-through charges could deny the 
shipper full transparency regarding the total freight charges that will 
apply to a shipment, as well as deprive the shipper of advance notice 
of any increase in those charges. The Commission, therefore, seeks 
responses to the following questions, as well as any additional 
information related to the public's experience with pass-through 
charges.
    1. For an ocean common carrier (VOCC), what are the typical charges 
that are not under its control and for which the ocean common carrier 
merely acts as a collection agent?
    2. For an ocean common carrier (VOCC), how does its tariff specify 
or address those charges for which it merely acts as a collection 
agent?
    3. For an NVOCC, what are the typical charges that are not under 
its control and for which the NVOCC merely acts as a collection agent?
    4. For an NVOCC, how does its tariff specify or address those 
charges for which it merely acts as a collection agent?
    5. How do common carriers communicate to shippers that the so-

[[Page 18243]]

called pass-through charges are for the account of shippers?
    6. How can shippers be assured that common carriers collect pass-
through charges without adding any mark-up?
    In your response, where possible, please include the carrier 
name(s) and the relevant tariff provisions.

III. 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:
     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.
     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.
     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.
    In addition to soliciting the comments of regulated entities, the 
shipping public and supply chain stakeholders, the Commission 
encourages any interested party to comment on these questions and any 
experience they have related to these two issues.

    By the Commission.
Rachel E. Dickon,
Secretary.
[FR Doc. 2021-06128 Filed 4-7-21; 8:45 am]
BILLING CODE 6730-02-P
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