Carrier Automated Tariffs, 25-33 [2023-27783]
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[FR Doc. 2023–28799 Filed 12–29–23; 8:45 am]
BILLING CODE 4910–13–P
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FEDERAL MARITIME COMMISSION
46 CFR Part 520
[Docket No. FMC–2022–0067]
RIN 3072–AC86
Carrier Automated Tariffs
Federal Maritime Commission.
Final rule.
AGENCY:
ACTION:
The Federal Maritime
Commission (Commission) amends its
regulations governing Carrier
Automated Tariffs. The final rule
removes the option for 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; revise regulations to
specify permissible relationships
between NVOCCs for the co-loading of
cargo, and makes other miscellaneous
updates and clarifications to the
regulation, including removing outdated
citations.
DATES: This final rule is effective on
February 1, 2024.
ADDRESSES: You may use the Federal
eRulemaking Portal at
www.regulations.gov to view
background documents or comments
received in Docket No. FMC–2022–
0067.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Amy Strauss, Acting Secretary; Phone:
(202) 523–5725; Email: secretary@
fmc.gov.
SUPPLEMENTARY INFORMATION:
I. Discussion
On May 10, 2022, the Commission
issued a Notice of Proposed Rulemaking
(NPRM) seeking comment on proposed
changes to Commission regulations in
46 CFR part 520.1 In response to the
NPRM, the Commission received ten
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);
1 Notice
of Proposed Rulemaking—Carrier
Automated Tariffs, 87 FR 27971 (May 10, 2022).
Prior to the publication of the May 2022 proposal,
the Commission published an Advance Notice of
Proposed Rulemaking seeking input on how to
revise its tariff regulations to help address the
inconsistent manner in which carriers were
interpreting and applying these regulations. See
Advance Notice of Proposed Rulemaking
(ANPRM)—Carrier Automated Tariffs, 86 FR 18240
(April 8, 2021).
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25
Charles E. Schmidt; Kintetsu World
Express (U.S.A.), Inc., an NVOCC; Yang
Ming Marine Transport Corp., a vesseloperating common carrier (VOCC);
Mohawk Global, an NVOCC; UWL, an
NVOCC; C.H. Powell, an NVOCC; APL
Logistics, Ltd., an NVOCC; and Ascent
Global Logistics, an NVOCC. These
comments are addressed in the
discussion that follows.
A. Tariff Access Fees
With one exception, commenters that
addressed the proposed rule requiring
common carriers to provide free access
to their tariff systems supported the
rule. Kintetsu World Express favored
continuing to allow a fee to be assessed,
asserting that tariff publishers that
currently charge an access fee to the
public will likely attempt to recover lost
revenue from their common carrier
customer if they can no longer charge a
third party for tariff access. Kintetsu at
2. See also NYNJFF&BA at 2 (noting that
carriers who use third party providers
will most likely assess a fee to cover
cost of access to their service). The
Commission considered Kintetsu’s
concern that the proposed rule may lead
to higher fees from its tariff publisher
because the tariff publisher can no
longer charge a third party for access.
However, the Commission is not
persuaded by Kintetsu’s concern.
Carriers have been required to publish
tariffs for decades. See 46 U.S.C. 40501.
Some carriers choose to publish these
tariffs on their own website, and some
choose to use a tariff publisher—and in
Kintetsu’s case, it decided that the best
way to comply with the Commission’s
requirements was to pay a tariff
publisher.2 Kintetsu did not provide
information about what it would cost to
publish the tariffs on Kintetsu’s own
website 3 or a comparison of how much
more Kintetsu would pay a tariff
publisher if the tariff publisher could
not charge a fee for access. Further,
Kintetsu’s concerns were not supported
by similar concerns from NCBFAA or
NYNJFFF&BA, entities that represent
many similar NVOCCs. Based on this
record, the Commission is not
persuaded by Kintetsu’s concern and
maintains its position that it is
reasonable to not charge a fee for tariff
2 It appears that the benefits of using a tariff
publisher go beyond simply providing a website for
publication as tariff publishers advertise expert
help in complying with Commission regulations
and cost efficiency from outsourcing for that
expertise. Thus, the decision to use a tariff
publisher may include more considerations than
simply the cheapest way to post tariffs publicly.
3 Kintetsu does have a public website that appears
to be maintained and up to date, as there are articles
from August 2023. See https://www.kwe.com/ (last
accessed August 16, 2023).
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access. The Commission continues to
believe that cost barriers to public tariff
access are contrary to the goal of
ensuring the availability of shipping
information, and advances in
technology since the regulation was
implemented over two decades ago
mean that free tariff access is now
reasonable. Accordingly, the
Commission amends its regulations to
remove the option to charge a fee for
tariff access currently found at 46 CFR
520.9(e)(3).
B. Cross-Referencing Tariffs
With respect to its proposal regarding
the cross-referencing of tariffs that
would be part of 46 CFR 520.7(a)(3)(iv),
commenters NYNJFF&BA; NCBFAA;
C.H. Powell; Ascent Global Logistics;
and Mohawk Global expressed concern
with allowing an NVOCC to crossreference an ocean common carrier tariff
in its own tariff for the purpose of
charging its shipper the ocean common
carrier’s surcharges and assessorial
charges. These concerns centered on
two main issues. First, the asserted
burden placed on the NVOCC to list in
its tariff all named VOCC surcharges
and provide links to those VOCC tariffs
would be too great. Second, NVOCC
commenters expressed an unwillingness
to disclose to their shippers the
identities of the VOCCs they use. See
NYNJFF&BA at 2–3; NCBFAA at 2–3;
C.H. Powell at 2; Ascent Global
Logistics at 1; and Mohawk Global at 4–
5.
The Commission addresses these
comments by clarifying that under the
new § 520.7(a)(3)(iv), when an NVOCC
cross-references a VOCC tariff, the
requirement to list the charges which
may be passed through is satisfied by
publishing in the NVOCC tariff a list of
names which may encompass a category
of charges—for example, a ‘‘Bunker
Surcharge’’ may include Low Sulphur
Fuel Charges and Fuel Recovery
Surcharges. In addition, the NVOCC
tariff need only reference that these
charges may be assessed at cost per the
underlying VOCC’s governing tariff,
rather than cite a specific VOCC name
and/or tariff. To ensure the clarity of the
filing requirement, the Commission has
revised the wording of the new rule to
state that categories of charges may be
listed in the NVOCC’s tariff.
The Commission also notes the
comment by NYNJFF&BA that shipper
transparency would be served by
including a statement on a Negotiated
Rate Arrangement (NRA) quotation, or
in the NVOCC Rules tariff that
verification of pass-through charges can
be provided upon request. NYNJFF&BA
at 3. While not in the scope of this
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rulemaking, the Commission
nonetheless encourages NVOCCs to
implement this practice as a means of
providing confirmation of the type and
amount of charge(s) passed through for
payment by the shipper.
C. Charges Passed Through to NVOCCs
by VOCCs
A comment received by NYNJFF&BA
with respect to charges passed through
by NVOCCs to their shipper after being
imposed on a VOCC by an outside entity
reflects the same concern in reference to
the name and type of VOCC-originated
charges passed through to NVOCCs
discussed in Section B. NYNJFF&BA at
3–4. The Commission therefore is
making the same revision to the new
rule at § 520.7(h) to state that categories
of charges may be listed.
1. General Rate Increases
As discussed in the NPRM, the
Commission has historically classified
General Rate Increases (GRIs) as a
component of the base ocean freight
assessed by the common carrier, not a
charge or surcharge, and therefore
would not be subject to an exemption
under § 520.7(a)(3)(iv) as proposed in
the NPRM. In its comments, the
NYNJFF&BA opposed the exclusion of
GRIs as a charge that may be passed
through by an NVOCC. NYNJFF&BA at
4–5. The NYNJFF&BA asserted that
VOCC GRIs should be allowed to be
passed through in the same way as other
‘‘rapidly changing and proliferating
VOCC charges.’’ NYNJFF&BA also notes
that current regulations governing NRAs
allow an NVOCC to apply GRIs in the
same way as surcharges and accessorial
charges. NYNJFF&BA at 4. Comments
from the NYNJFF&BA and NCBFAA
added that VOCC GRIs are often
announced with the required 30-day
notice but are reduced or delayed just
prior to the effective date. NYNJFF&BA
at 4–5; NCBFAA ANPRM Comment at 6.
These comments also indicated that,
should the NVOCC publish an increase
in line with the VOCC’s published GRI,
the underlying shipper may be subject
to the increase, regardless of a lastminute reduction or delay in effective
date by the VOCC, if the NVOCC does
not file a coinciding reduction or delay
in its own tariff. Based on comments
received and the current regulation at
§ 532.5(d)(2), which allows VOCC GRIs
to apply to an NRA, the Commission is
revising its regulation at § 520.7(a)(3)(iv)
to specify that an NVOCC has the option
to pass through a VOCC GRI to its
shipper.
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2. Fees Connected to Pass-Through
Charges
In its NPRM, the Commission stated
that regulations that would allow an
NVOCC to pass through increases in
certain charges without advance notice
under specified conditions are not
intended to allow a markup of charges
above what the third party has billed.
Several commenters asserted that
NVOCCs should be allowed to charge a
‘‘nominal’’ fee to recover the cost of the
outlay of charges assessed by an outside
entity. See NCBFAA at 4; UWL at 2;
C.H. Powell at 2; Ascent Global
Logistics at 1; Mohawk Global at 6; and
NYNJFF&BA at 6. The Commission
agrees that NVOCCs are entitled to
receive compensation for services
provided, including a fee for the
advance payment of charges on behalf of
its customer. However, the
Commission’s intent in this regard is to
ensure it is clear what service charges
are being charged to the shipper, rather
than allowing the NVOCC to simply
mark up the charges assessed by the
VOCC. Therefore, the regulation at
§ 520.7(a)(3)(iv) has been revised to
specify that fees from the NVOCC
should be separate and distinguished
from charges that are passed through
from the VOCC without markup, and
named for the service provided (e.g., an
‘‘advance payment charge’’).
D. Co-Loaded Cargo
The Commission received comments
on its proposal to revise the definition
of ‘‘co-loading’’ to limit this term to the
act of combining of less-than-containerloads (LCL) of cargo. See generally APL
Logistics at 1–2; Ascent Global at 2; C.H.
Powell at 3; Kintetsu at 1; Mohawk
Global at 6–8; NCBFAA at 6;
NYNJFF&BA at 7–12; and UWL at 3.
While some commenters suggested that
limiting the definition of co-loading to
LCL would prevent full container load
(FCL) co-loading, (see, e.g., APL
Logistics at 1 and C.H. Powell at 3), this
was not the Commission’s intent. Most
commenters largely favored adding a
definition for FCL co-loading, including
those supporting the laying out of a ‘‘set
of expectations’’ for both LCL and FCL
co-loading situations. See generally APL
Logistics at 1–2; Ascent Global at 2; C.H.
Powell at 3; Kintetsu at 1; Mohawk
Global at 6–8; NCBFAA NPRM
Comment at 6; and UWL at 3.
The Commission recognizes that the
term co-loading has come to encompass
both (1) the combining of LCL cargo by
two or more NVOCCs in a container,
and (2) the re-selling of space for FCL
cargo by one NVOCC to another
NVOCC. In proposing to limit the
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regulatory definition of co-loading to
LCL, the Commission did not intend to
prevent arrangements between NVOCCs
involving FCL. Instead, the purpose was
to accurately describe co-loading in its
traditional meaning as the physical
combining of cargo in a single shipping
container. The Commission could then
differentiate regulations that apply to
NVOCC co-loading arrangements that
involve LCL cargo from those that
involve FCL cargo. The Commission has
ultimately decided that the definition of
co-loading will remain unchanged, and
the differentiations between FCL and
LCL co-loaded cargo will instead be
made through the revision of the current
co-loading regulations at section
520.11(c), which limit the co-loading of
FCL to shipper-to-carrier relationships
only. The Commission also proposed to
require that an NVOCC that tenders
cargo to another NVOCC must annotate
each applicable bill of lading with the
identity of any other NVOCC to which
the shipment was tendered. This
proposal received unanimous
opposition that fell into two categories.
First, tendering NVOCCs opposed
disclosing to their shipper clients the
names of the other NVOCCs with whom
they work out of concern for the impact
on their competitive commercial
interests. See Yang Ming at 1; Mohawk
at 9–10; Ascent at 2; NYNJFF&BA at 9;
NCBFAA at 7; APL Logistics at 2–3; and
Kintetsu at 1. Second, NVOCCs do not
necessarily know the names of all
NVOCCs to which the shipment has
been passed before it reaches a final
master NVOCC that contracts with the
VOCC for ocean transport. See Mohawk
at 10; Ascent at 2; and NYNJFF&BA at
9. Commenters added that annotation
will result in a delay of documentation
release as annotation would need to be
input manually. See Yang Ming at 1 and
NCBFAA at 7. APL Logistics and
Mohawk Global also commented that
they were unaware of any circumstance
where annotation would have provided
a benefit to a beneficiary cargo owner
(BCO). See APL Logistics at 3 and
Mohawk Global at 12. Overall, the
commenters asserted that any benefit to
the BCO gained from annotation is
outweighed by the burden it places on
the NVOCC. See generally APL Logistics
at 3 and Mohawk Global at 12. See also
NYNJFFF&BA at 9; NCBFAA at 6; and
C.H. Powell at 4.
The Commission notes that the
requirement to annotate already applies
to co-loaded cargo pursuant to
§ 520.11(c)(2). The final rule does not
change Commission regulations in this
regard. However, regulations that govern
the co-loading of cargo will be
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augmented to clarify the types of
relationships that are allowable for the
co-loading of cargo among NVOCCs.
Specifically, current regulations make
reference to carrier-to-carrier
relationships and shipper-to-carrier
relationships between NVOCCs in a coloading situation. These relationships
establish the responsibility of each
NVOCC as they relate to each other and
to the beneficial cargo owner. In a
shipper-to-carrier relationship, a master
NVOCC receives cargo from a tendering
NVOCC and acts as carrier to the
tendering NVOCC in issuing its house
bill of lading and assuming legal
responsibility as carrier for the cargo.
The revisions to new paragraph
520.11(c)(2) clarify that this
arrangement may be used for the
shipment of either LCL or FCL cargo. In
a carrier-to-carrier relationship, the
NVOCCs enter into an agreement which
establishes the terms under which the
NVOCCs will share container space for
consolidated cargo. Each NVOCC will
issue its house bill of lading for its
portion of the cargo and act as carrier to
its own customer. The revisions to new
paragraph 520.11(c)(2) clarify that
carrier-to-carrier arrangements will limit
this type of arrangement to LCL cargo
only.
E. Other Proposed Changes to Part 520
In addition to these changes, the
Commission also made a number of
other changes to 46 CFR 520.2–520.14
as detailed below.
1. The Commission Is Updating
Citations Throughout Part 520
The Commission is removing legacy
parallel citations that provided the
public with useful information after the
codification of the Commission’s
authorities in Title 46 of the United
States Code. The Commission is also
deleting the definition of ‘‘Act’’ from the
definition section. These citations and
definition are no longer necessary or
accurate, and the Commission is
removing them.
2. Clarifying Revisions
The Commission revises several
provisions within part 520 to clarify
when the regulations are expressing a
requirement or obligation. Among these
changes include replacing the term
‘‘shall’’ with the term ‘‘must’’ to clearly
indicate that certain acts are required
and to identify regulatory obligations.
Similarly, the Commission also replaces
certain usages of the term ‘‘may’’ with
the term ‘‘must’’ to identify
requirements or obligations. In addition,
the Commission made other clarifying
edits.
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3. § 520.2 Definitions
To clarify the definitions in § 520.2,
the Commission: adds 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; amends the
definition of combination rate to spell
out the abbreviation for Tariff Rate Item;
amends the definition of commodity
description to require the description to
be identified by a specific number;
amends the definition of ‘‘harmonized
system’’ to remove an outdated
reference to the U.S. Customs Service;
amends 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; amends the definition
of ‘‘retrieval’’ to remove outdated
references to dial-up
telecommunications and a network link;
amends the definition of ‘‘rules’’ to
clarify that a common carrier or a
conference of common carriers set the
tariff terms and conditions; amends the
definition of ‘‘shipper’’ to specify that
ocean transportation refers to the
transportation of cargo, to specify that
the person to whom delivery is to be
made may be a consignee, and to
include the meaning of shippers’
association; and amends the definition
of ‘‘through transportation’’ to make it
consistent with the Shipping Act’s
revised definition. The Commission also
adds definitions for ‘‘destination scope’’
and ‘‘inland division’’ to its regulations.
Finally, the Commission removes as
unnecessary the definitions of ‘‘joint
rates,’’ ‘‘commodity description
number,’’ ‘‘local rates,’’ ‘‘point of rest,’’
and ‘‘shippers’ association.’’
4. § 520.3 Publication Responsibilities
Pursuant to § 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 stated its belief that adding
notice in § 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.
87 FR 27971, 27974 (May 10, 2021). To
this end, the Commission adds a
provision to § 520.3 to specify that
failing to maintain a tariff will result in
the revocation of an NVOCC’s license or
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suspension of a foreign-based
unlicensed NVOCC’s registration. In
addition, the Commission: changes the
term used for the person a common
carrier may use to meet their
publication requirements from ‘‘agent’’
to ‘‘publisher’’; includes 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 defines the time period allowed for
the common carrier to provide changes
to its Form FMC–1 to the Commission
as within 30 calendar days.
The Commission received one
comment regarding this proposal. That
comment stated that the proposed rule
seemed excessively harsh, since tariffs
are quite complex and to subject a
carrier to the penalty of a loss of
operating authority for an inadvertent
updating error would be excessive. See
NYNJFF&BA at 13. Further, the
commenter asserted that the industry
would be better served if the
Commission issued a warning to those
NVOCCs whose tariffs are found to be
non-compliant and provide an
opportunity to remediate any failing,
and that the goal is to bring the industry
into compliance. See NYNJFF&BA at 13.
The Commission does not accept the
commenter’s premise and notes that
while a carrier may be afforded the
opportunity to remedy a particular
situation depending on the
circumstances at hand, the inclusion of
this provision is intended to convey the
seriousness of the consequences that
may follow should the common carrier
fail to take action in response to the
Commission’s efforts to induce
compliance. Accordingly, the
Commission is not persuaded to revise
the language in the proposed rule.
The Commission also received general
comments regarding the requirement to
publish and maintain a tariff. These
comments argued that tariffs are no
longer relevant in light of the prevalence
of privately negotiated agreements, and
that tariffs are complex and difficult to
navigate and do not provide
transparency of rates and surcharges.
See Mohawk Global at 1–2;
NYNJFF&BA at 1–2. The Commission
notes that the Shipping Act requires the
publication of tariffs, and tariff
publication is still necessary to protect
the shipping public and ensure
compliance with the Shipping Act.
5. § 520.4 Tariff Contents
The Commission revises § 520.4(a)(3)
to clarify that the ocean transportation
intermediary that may receive
compensation paid by a common carrier
or conference is an ocean freight
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forwarder as defined by 46 U.S.C.
40102(19). In addition, the Commission
uses plain language to reword the
regulation at § 520.4(a)(4) requiring that
a tariff state each charge separately;
revises § 520.4(a)(5) to state that sample
copies of bills of lading must be legible;
and revises § 520.4(a)(8) to state that
commodity tariffs must contain a
retrievable commodity index.
The Commission also deletes
§ 520.4(e)(1), which describes voluntary
coding for commodity descriptions. To
streamline the rule and remove a nonmandatory regulation, the Commission
deletes paragraph (e)(1). The
Commission notes that, even with the
adoption of this change to section 520.4,
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.
The Commission also makes a variety
of other changes to sections 520.5
through 520.14. These changes are listed
below:
—Section 520.5 (standard tariff
terminology): updates the source for
geographic names listed in tariffs.
—Section 520.6 (retrieval of
information): revises 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.
—Section 520.7 (tariff limitations):
clarifies the date on which a new
conference member’s participation in
the conference tariff becomes
effective; specifies that the minimum
time allowed to file an overage claim
with a common carrier applies to
claims filed by a shipper; removes a
provision stipulating the methods to
be used to compute the weight of
green salted hides, in light of
requirements mandated by the
International Maritime Organization;
adds a new paragraph (h) to § 520.7 to
specify that NVOCCs may pass
through certain charges received from
ocean common carriers that are not
under the control of the ocean
common carrier or conferences; and
clarifies that the charges must be
clearly listed in the NVOCC’s tariffs
and not marked up above cost.
—Section 520.8 (effective dates):
replaces the term ‘‘destination
grouping’’ with ‘‘destination scope’’
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in § 520.8(b)(3) to be consistent with
other references to ‘‘destination
scope’’ used in 46 CFR part 520.
—Section 520.9 (access to tariffs):
updates this section to remove
references to obsolete technologies.
—Section 520.10 (integrity of tariffs):
revises the requirement to maintain
historical tariff data in § 520.10(a) by
defining the time period that data
must be made available to the
Commission as generally being within
45 days of a request and making
certain grammatical corrections to the
requirement that common carriers
provide tariff access to the
Commission.
—Section 520.11 (non-vessel-operating
common carriers): removes as
unnecessary the requirement that an
NVOCC must note in its tariff that it
does not tender cargo for co-loading;
removes as unnecessary the
requirement in 520.11(c) that an
NVOCC may not offer special coloading rates for the exclusive use of
other NVOCCs, since published tariff
rates are available to all shippers.
—Section 520.12 (time/volume rates):
clarifies the time/volume rate
requirements and that common
carriers or conferences may cancel
time/volume rates when no shipper
accepts these rates within 30 days
after the rates are published.
—Section 520.13 (exemptions and
exceptions): updates the governing
rules of this part and the requirements
for Department of Defense cargo,
updating references to a military
component.
—Section 520.14 (special permission):
specifies the documents required
when requesting confidential
treatment of an application for special
permission and updates the process
for submission and payment of
applications for special permission.
Except for those comments already
noted in the preceding paragraphs in
this section (Section E), the Commission
received no comments opposing these
proposed changes, and one comment
supporting the proposed changes. See
Mohawk Global at 12. The Commission
therefore adopts these changes in this
final rule.
II. 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, 5 U.S.C.
553, the agency must prepare and make
available for public comment an initial
regulatory flexibility analysis (IRFA)
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describing the impact of the proposed
rule on small entities. When an agency
promulgates a final rule after being
required to publish a notice of proposed
rulemaking, the agency must prepare
and make available to the public the
final regulatory flexibility analysis
(FRFA) or its summary. The IRFA and
FRFA requirements, however, do not
apply if the head of the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. To avoid
duplicative or unnecessary analyses, the
agency must publish such certification
either at the time of publication of a
notice of proposed rulemaking or at the
time of publication of the final rule. 5
U.S.C. 605. The Commission published
such certification at the time of the
publication of the notice of proposed
rulemaking, along with a statement
providing the factual basis for the
certification. 87 FR at 27975–27976.
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).
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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 NEPA
implementing regulation requires 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). After an
environmental assessment, the
Commission issued a Finding of No
Significant Impact (FONSI) which
became final 10 days after publication of
the NPRM as the Commission received
no petition for review. The FONSI and
environmental assessment are available
for inspection on the docket at
www.regulations.gov.
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Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. 3501–3521) (PRA) requires an
agency to seek and receive approval
from the Office of Management and
Budget (OMB) before collecting
information from the public. 44 U.S.C.
3507. The agency must submit
collections of information in proposed
rules to OMB in conjunction with the
publication of the notice of proposed
rulemaking. 5 CFR 1320.11.
The information collection
requirements in part 520 are currently
authorized under OMB Control Number
3072–0064. In compliance with the
PRA, the Commission submitted the
proposed revised information collection
to the OMB. Notice of the revised
information collections was published
in the Federal Register and public
comments were invited. See 87 FR
27971 (May 10, 2021). No comments
specifically addressed the revised
information collection in part 520. The
burden calculations were updated as
part of the evaluation of the final rule.
While the estimated burden to the
public for each component remained the
same, the total burden hours increased.
The burden hour increase is due to an
increase in the number of entities,
particularly NVOCCs, entering the
industry. In the NPRM the Commission
estimated the total person-hour burden
at 2,509 person-hours. In this Final
Rule, the total person-hour burden is
estimated at 2,931 person-hours.
Executive Order 12988 (Civil Justice
Reform)
This rule meets the applicable
standards in E.O. 12988 titled, ‘‘Civil
Justice Reform,’’ to minimize litigation,
eliminate ambiguity, and reduce
burden. Section 3(b) of E.O. 12988
requires agencies to make every
reasonable effort to ensure that each
new regulation: (1) clearly specifies the
preemptive effect; (2) clearly specifies
the effect on existing Federal law or
regulation; (3) provides a clear legal
standard for affected conduct, while
promoting simplification and burden
reduction; (4) clearly specifies the
retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses
other important issues affecting clarity
and general draftsmanship under any
guidelines issued by the Attorney
General. This document is consistent
with that requirement.
Regulation Identifier Number
The Commission assigns a regulation
identifier number (RIN) to each
regulatory action listed in the Unified
Agenda of Federal Regulatory and
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29
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 https://
www.reginfo.gov/public/do/
eAgendaMain.
List of Subjects in 46 CFR Part 520
Freight, Intermodal transportation,
Maritime carriers, Reporting and
recordkeeping requirements.
For the reasons set forth in the
preamble, the Federal Maritime
Commission amends 46 CFR part 520 as
follows:
PART 520—CARRIER AUTOMATED
TARIFFS
1. The authority citation for part 520
continues to read as follows:
■
Authority: 5 U.S.C. 553; 46 U.S.C. 40101–
40102, 40501–40503, 40701–40706, 41101–
41109, 46105.
2. Amend § 520.1 by revising the last
sentence of paragraph (a) and
paragraphs (b)(2) through (4) to read as
follows:
■
§ 520.1
Scope and purpose.
(a) * * * They implement the tariff
publication requirements of 46 U.S.C.
40501–40503.
(b) * * *
(2) Carriers and conferences to meet
their publication requirements pursuant
to 46 U.S.C. 40501–40503;
(3) The Commission to ensure that
carrier tariff publications are accurate
and accessible and to protect the public
from violations by carriers of 46 U.S.C.
41101–41106; and
(4) The Commission to review and
monitor the activities of controlled
carriers pursuant to 46 U.S.C. 40701–
40706.
■ 3. Amend § 520.2 by:
■ a. Removing the word ‘‘shall’’ from
the introductory text;
■ b. Removing the definition of ‘‘Act’’;
■ c. Revising the definitions of ‘‘Bulk
cargo’’, ‘‘Combination rate’’, and
‘‘Commodity description’’;
■ d. Removing the definition of
‘‘Commodity description number’’;
■ e. Revising introductory text of the
definition of ‘‘Controlled carrier’’;
■ f. Adding in alphabetical order a
definition for ‘‘Destination scope’’;
■ g. Revising the definitions of ‘‘Foreign
commerce’’ and ‘‘Harmonized System’’;
■ h. Adding in alphabetical order a
definition for ‘‘Inland division’’;
■ i. Removing the definitions of ‘‘Joint
rates’’ and ‘‘Local rates’’;
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j. Revising the definition of ‘‘Location
group,’’
■ k. Removing the definition of ‘‘Point
of rest’’;
■ l. Revising the definitions of
‘‘Publisher,’’ ‘‘Retrieval’’, ‘‘Rules’’, and
‘‘Shipper’’;
■ m. Removing definition of ‘‘Shippers’
association’’;
■ n. Revising the definitions of ‘‘Tariff
number’’ and ‘‘Tariff rate item’’;
■ o. Adding in alphabetical order a
definition for ‘‘Through date’’;
■ p. Revising the definition of ‘‘Through
transportation’’; and
■ q. Removing the definition of ‘‘Thru
date’’.
The revisions and additions read as
follows.:
■
§ 520.2
Definitions.
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*
*
*
*
*
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.
*
*
*
*
*
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.
*
*
*
*
*
Foreign commerce means that
commerce under the jurisdiction of title
46 of the United States Code.
*
*
*
*
*
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
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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 (e.g., consignee);
(4) A shippers’ 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
(5) An NVOCC that accepts
responsibility for payment of all charges
applicable under the tariff or service
contract.
*
*
*
*
*
Tariff number means a unique threedigit number assigned by the publisher
to distinguish it from other tariffs.
Tariffs must be identified by the sixdigit organization number plus the userassigned 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
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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.
*
*
*
*
*
■ 4. Revise § 520.3 to read as follows:
§ 520.3
Publication responsibilities.
(a) General. Unless otherwise
exempted or excepted by § 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. (1) 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
www.fmc.gov.
(2) The common carrier and
conference must include on Form FMC–
1 its organization name, organization
number, home office address, name and
email address and telephone number of
the firm’s representative, the location of
its tariffs, and the publisher, if any, used
to maintain its tariffs.
(3) Any changes to the above
information must be transmitted to BTA
within 30 calendar days.
(4) 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,
www.fmc.gov, a list of the locations of
all common carrier and conference
tariffs.
(f) NVOCC failure to maintain tariff.
Failure to maintain a tariff will result in
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revocation of an NVOCC’s license or
suspension of a foreign-based
unlicensed NVOCC’s registration.
■ 5. Amend § 520.4 by:
■ a. Removing the word ‘‘shall’’
wherever it appears and adding in its
place the word ‘‘must’’;
■ b. Revising paragraphs (a)(3) through
(5) and (8);
■ c. Removing paragraph (e)(1);
■ d. Redesignating paragraphs (e)(2) and
(3) as paragraphs (e)(1) and (2); and
■ e. Revising newly redesignated
paragraph (e)(2)(i) and paragraphs (f)(5),
(g), and (i).
The revisions read as follows:
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§ 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 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) * * *
(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
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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
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.
*
*
*
*
*
■ 6. Revise § 520.5 to read as follows:
§ 520.5
Standard tariff terminology.
(a) Approved codes. The Standard
Terminology Appendix contains codes
for rate bases, container sizes, service,
etc., and units for weight, measure and
distance. They are intended to provide
a standard terminology baseline for
tariffs to facilitate retriever efficiency.
Tariff publishers can use additional
codes, if they are clearly defined in their
tariffs.
(b) Geographic names. Tariffs should
employ locations (points) that are
provided by the National GeospatialIntelligence 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
that are currently in use and have not
yet been included in these publications.
■ 7. Amend § 520.6 by
■ a. In paragraphs (a) introductory text,
(c), and (d), removing the word ‘‘shall’’
and adding in its place the word
‘‘must’’; and
■ b. Revising paragraphs (b), (e), and (f).
The revisions read as follows:
§ 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 and surcharges
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
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31
publication date, effective date,
amendment code (use codes in
appendix A to 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.
■ 8. Amend § 520.7 by:
■ a. In paragraphs (a) introductory text,
(b), and (c), removing the word ‘‘shall’’
and adding in its place the word
‘‘must’’;
■ b. In paragraph (a)(3)(i), removing the
comma at the end of the paragraph and
adding a semicolon in its place;
■ c. In paragraph (a)(3)(ii):
■ i. Removing the word ‘‘may’’ and
adding in its place the word ‘‘can’’; and
■ ii. Removing ‘‘, and’’ at the end of the
paragraph and adding a semicolon in its
place;
■ d. In paragraph (a)(3)(iii), removing
the word ‘‘may’’ and adding in its place
the word ‘‘can’’;
■ e. Adding paragraph (a)(3)(iv);
■ d. Removing paragraph (e).
■ e. Redesignating paragraphs (f)
through (h) as paragraphs (e) through
(g);
■ f. Revising newly redesignated
paragraphs (e) and (f); and
■ g. Adding a new paragraph (h).
The revisions read as follows:
§ 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 published and
effective surcharges, assessorial charges,
and general rate increases, but the
NVOCC must clearly list the named
charges or categories of charges in the
NVOCC’s tariff, and must not mark them
up above cost. Any fee associated with
services provided by the NVOCC to its
shipper should be separate and
distinguished from the vessel-operating
common carrier’s surcharges, assessorial
charges, and general rate increases, and
specify the service for which the
shipper is being charged.
*
*
*
*
*
(e) Conference situations. (1) New
members of a conference must cancel
any independent tariffs applicable to the
trades served by the conference within
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
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conference tariff, unless a later effective
date is specified.
(2) New conference agreements have
ninety (90) days within which to
publish a new tariff.
(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 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-vesseloperating 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 ocean common carrier
or conferences and for which the
NVOCC merely acts as a collection
agent. The charges or categories of
charges must be clearly listed in the
NVOCC’s tariffs and not marked up
above cost.
■ 9. Amend § 520.8 by:
■ a. Revising paragraphs (b)(3) and (4);
and
■ b. In paragraph (c), removing the
words ‘‘shall be’’ and adding in their
place the word ‘‘are’’.
The revisions read as follows:
§ 520.8
Effective dates.
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*
*
*
*
*
(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 acts as a
collection agent for such charges and
the agency making such changes does so
without notifying the common carrier or
conference. Ocean common carriers and
NVOCCs must not mark up these
charges above cost.
*
*
*
*
*
■ 10. Revise § 520.9 to read as follows:
§ 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
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systems provide a uniform resource
locator (‘‘URL’’) internet address.
(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.
11. Amend § 520.10 by revising
paragraphs (a), (b), and (d) to read as
follows:
■
§ 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 5 years from the
date such information is superseded,
canceled, or withdrawn, and must
provide online access to such data for 2
years. After 2 years, such data must be
retained online 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 online. 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
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
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Fmt 4700
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automated systems and records for the
Commission’s review.
■
12. Revise § 520.11 to read as follows:
§ 520.11 Non-vessel-operating common
carriers.
(a) Financial responsibility. An ocean
transportation intermediary that
operates as a non-vessel-operating
common carrier must state in its tariff
publication:
(1) That it has furnished the
Commission proof of its financial
responsibility in the manner and
amount required by part 515 of this
chapter;
(2) The manner of its financial
responsibility;
(3) Whether it is relying on coverage
provided by a group or association to
which it is a member;
(4) The name and address of the
surety company, insurance company, or
guarantor issuing the bond, insurance
policy, or guaranty;
(5) The number of its bond, insurance
policy, or guaranty; and
(6) Where applicable, the name and
address of the group or association
providing coverage.
(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) Co-loading. NVOCCs must address
the following situations in their tariffs:
(1) If two or more NVOCCs enter into
an agreement which establishes a
carrier-to-carrier relationship for the coloading of cargo, then the existence of
such agreement must be noted in the
tariff. Carrier-to-carrier relationships
apply to the co-loading of less than
container loads of cargo only.
(2) If two NVOCCs enter into a coloading arrangement which results in a
shipper-to-carrier relationship, the
tendering NVOCC must describe its coloading practices and specify its
responsibility to pay any charges for the
transportation of the cargo. A shipperto-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.
Shipper-to-carrier relationships may
apply to the co-loading of full container
loads or less than container loads of
cargo.
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02JAR1
Federal Register / Vol. 89, No. 1 / Tuesday, January 2, 2024 / Rules and Regulations
(3) An NVOCC which tenders cargo to
another NVOCC for co-loading, whether
under a shipper-to-carrier or carrier-tocarrier relationship, shall annotate each
applicable bill of lading with the
identity of any other NVOCC to which
the shipment has been tendered for coloading. Such annotation shall be
shown on the face of the bill of lading
in a clear and legible manner.
13. Amend § 520.12 by
a. Revising paragraph (a);
b. In paragraphs (b)(2) introductory
text and (d), removing the word ‘‘shall’’
and adding in its place the word
‘‘must’’; and
■ c. Revising paragraphs (c) and (e).
The revisions read as follows:
■
■
■
§ 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.
14. Amend § 520.13 by:
a. Revising paragraphs (a), (b)(2)
introductory text, (b)(3) introductory
text, (c)(4), (d)(2) introductory text,
(d)(2)(ii)(A) introductory text, and
(d)(2)(ii)(B)(1) and (2); and
■ b. Removing paragraph (d)(2)(iii).
The revisions read as follows:
■
■
khammond on DSKJM1Z7X2PROD with RULES
§ 520.13
Exemptions and exceptions.
14:37 Dec 29, 2023
Jkt 262001
15. Amend § 520.14 by:
a. Revising paragraphs (a), (b), (c)(1)
and (2), and (c)(3) introductory text;
■ b. Removing the word ‘‘and’’ at the
end of paragraph (c)(3)(ii);
■ c. Removing the period at the end of
paragraph (c)(3)(iii) and adding ‘‘; and’’
in its place;
■ d. Adding paragraph (c)(3)(iv); and
■ e. Revising paragraph (d).
The revisions and addition read as
follows:
■
■
(a) General. Exemptions from the
requirements of this part are governed
by 46 U.S.C. 40103 and § 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:
*
*
*
*
*
(3) Terminal barge operators in
Pacific Slope states. Transportation
provided by terminal barge operators in
VerDate Sep<11>2014
Pacific Slope states barging containers
and containerized cargo by barge
between points in the United States are
exempt from the tariff publication
requirements of subtitle IV of title 46 of
the United States Code and the rules of
this part, where:
*
*
*
*
*
(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 Military
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) Between Canada and U.S. The
following services are exempt from the
filing requirements of subtitle IV of title
46 of the United States Code and the
rules of this part:
*
*
*
*
*
(ii) * * *
(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
(2) The carrier will remain subject to
all other provisions of the subtitle IV of
title 46 of the United States Code.
*
*
*
*
*
§ 520.14
Special permission.
(a) General. The statute at 46 U.S.C.
40501(e) authorizes the Commission, in
its discretion and for good cause shown,
to permit increases or decreases in rates,
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Fmt 4700
Sfmt 4700
33
or the issuance of new or initial rates,
on less than the statutory notice. The
statutes at 46 U.S.C. 40703 and 40704(a)
authorize the Commission to permit a
controlled carrier’s rates, charges,
classifications, rules or regulations to
become effective on less than 30 days’
notice. The Commission may also in its
discretion and for good cause shown,
permit departures from the
requirements of this part.
(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) * * *
(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
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.
Mary Thien Hoang,
Acting Secretary.
[FR Doc. 2023–27783 Filed 12–29–23; 8:45 am]
BILLING CODE 6730–02–P
E:\FR\FM\02JAR1.SGM
02JAR1
Agencies
[Federal Register Volume 89, Number 1 (Tuesday, January 2, 2024)]
[Rules and Regulations]
[Pages 25-33]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27783]
=======================================================================
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FEDERAL MARITIME COMMISSION
46 CFR Part 520
[Docket No. FMC-2022-0067]
RIN 3072-AC86
Carrier Automated Tariffs
AGENCY: Federal Maritime Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Maritime Commission (Commission) amends its
regulations governing Carrier Automated Tariffs. The final rule removes
the option for 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; revise regulations to specify
permissible relationships between NVOCCs for the co-loading of cargo,
and makes other miscellaneous updates and clarifications to the
regulation, including removing outdated citations.
DATES: This final rule is effective on February 1, 2024.
ADDRESSES: You may use the Federal eRulemaking Portal at
www.regulations.gov to view background documents or comments received
in Docket No. FMC-2022-0067.
FOR FURTHER INFORMATION CONTACT: Amy Strauss, Acting Secretary; Phone:
(202) 523-5725; Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Discussion
On May 10, 2022, the Commission issued a Notice of Proposed
Rulemaking (NPRM) seeking comment on proposed changes to Commission
regulations in 46 CFR part 520.\1\ In response to the NPRM, the
Commission received ten 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); Charles E. Schmidt; Kintetsu World
Express (U.S.A.), Inc., an NVOCC; Yang Ming Marine Transport Corp., a
vessel-operating common carrier (VOCC); Mohawk Global, an NVOCC; UWL,
an NVOCC; C.H. Powell, an NVOCC; APL Logistics, Ltd., an NVOCC; and
Ascent Global Logistics, an NVOCC. These comments are addressed in the
discussion that follows.
---------------------------------------------------------------------------
\1\ Notice of Proposed Rulemaking--Carrier Automated Tariffs, 87
FR 27971 (May 10, 2022). Prior to the publication of the May 2022
proposal, the Commission published an Advance Notice of Proposed
Rulemaking seeking input on how to revise its tariff regulations to
help address the inconsistent manner in which carriers were
interpreting and applying these regulations. See Advance Notice of
Proposed Rulemaking (ANPRM)--Carrier Automated Tariffs, 86 FR 18240
(April 8, 2021).
---------------------------------------------------------------------------
A. Tariff Access Fees
With one exception, commenters that addressed the proposed rule
requiring common carriers to provide free access to their tariff
systems supported the rule. Kintetsu World Express favored continuing
to allow a fee to be assessed, asserting that tariff publishers that
currently charge an access fee to the public will likely attempt to
recover lost revenue from their common carrier customer if they can no
longer charge a third party for tariff access. Kintetsu at 2. See also
NYNJFF&BA at 2 (noting that carriers who use third party providers will
most likely assess a fee to cover cost of access to their service). The
Commission considered Kintetsu's concern that the proposed rule may
lead to higher fees from its tariff publisher because the tariff
publisher can no longer charge a third party for access. However, the
Commission is not persuaded by Kintetsu's concern. Carriers have been
required to publish tariffs for decades. See 46 U.S.C. 40501. Some
carriers choose to publish these tariffs on their own website, and some
choose to use a tariff publisher--and in Kintetsu's case, it decided
that the best way to comply with the Commission's requirements was to
pay a tariff publisher.\2\ Kintetsu did not provide information about
what it would cost to publish the tariffs on Kintetsu's own website \3\
or a comparison of how much more Kintetsu would pay a tariff publisher
if the tariff publisher could not charge a fee for access. Further,
Kintetsu's concerns were not supported by similar concerns from NCBFAA
or NYNJFFF&BA, entities that represent many similar NVOCCs. Based on
this record, the Commission is not persuaded by Kintetsu's concern and
maintains its position that it is reasonable to not charge a fee for
tariff
[[Page 26]]
access. The Commission continues to believe that cost barriers to
public tariff access are contrary to the goal of ensuring the
availability of shipping information, and advances in technology since
the regulation was implemented over two decades ago mean that free
tariff access is now reasonable. Accordingly, the Commission amends its
regulations to remove the option to charge a fee for tariff access
currently found at 46 CFR 520.9(e)(3).
---------------------------------------------------------------------------
\2\ It appears that the benefits of using a tariff publisher go
beyond simply providing a website for publication as tariff
publishers advertise expert help in complying with Commission
regulations and cost efficiency from outsourcing for that expertise.
Thus, the decision to use a tariff publisher may include more
considerations than simply the cheapest way to post tariffs
publicly.
\3\ Kintetsu does have a public website that appears to be
maintained and up to date, as there are articles from August 2023.
See https://www.kwe.com/ (last accessed August 16, 2023).
---------------------------------------------------------------------------
B. Cross-Referencing Tariffs
With respect to its proposal regarding the cross-referencing of
tariffs that would be part of 46 CFR 520.7(a)(3)(iv), commenters
NYNJFF&BA; NCBFAA; C.H. Powell; Ascent Global Logistics; and Mohawk
Global expressed concern with allowing an NVOCC to cross-reference an
ocean common carrier tariff in its own tariff for the purpose of
charging its shipper the ocean common carrier's surcharges and
assessorial charges. These concerns centered on two main issues. First,
the asserted burden placed on the NVOCC to list in its tariff all named
VOCC surcharges and provide links to those VOCC tariffs would be too
great. Second, NVOCC commenters expressed an unwillingness to disclose
to their shippers the identities of the VOCCs they use. See NYNJFF&BA
at 2-3; NCBFAA at 2-3; C.H. Powell at 2; Ascent Global Logistics at 1;
and Mohawk Global at 4-5.
The Commission addresses these comments by clarifying that under
the new Sec. 520.7(a)(3)(iv), when an NVOCC cross-references a VOCC
tariff, the requirement to list the charges which may be passed through
is satisfied by publishing in the NVOCC tariff a list of names which
may encompass a category of charges--for example, a ``Bunker
Surcharge'' may include Low Sulphur Fuel Charges and Fuel Recovery
Surcharges. In addition, the NVOCC tariff need only reference that
these charges may be assessed at cost per the underlying VOCC's
governing tariff, rather than cite a specific VOCC name and/or tariff.
To ensure the clarity of the filing requirement, the Commission has
revised the wording of the new rule to state that categories of charges
may be listed in the NVOCC's tariff.
The Commission also notes the comment by NYNJFF&BA that shipper
transparency would be served by including a statement on a Negotiated
Rate Arrangement (NRA) quotation, or in the NVOCC Rules tariff that
verification of pass-through charges can be provided upon request.
NYNJFF&BA at 3. While not in the scope of this rulemaking, the
Commission nonetheless encourages NVOCCs to implement this practice as
a means of providing confirmation of the type and amount of charge(s)
passed through for payment by the shipper.
C. Charges Passed Through to NVOCCs by VOCCs
A comment received by NYNJFF&BA with respect to charges passed
through by NVOCCs to their shipper after being imposed on a VOCC by an
outside entity reflects the same concern in reference to the name and
type of VOCC-originated charges passed through to NVOCCs discussed in
Section B. NYNJFF&BA at 3-4. The Commission therefore is making the
same revision to the new rule at Sec. 520.7(h) to state that
categories of charges may be listed.
1. General Rate Increases
As discussed in the NPRM, the Commission has historically
classified General Rate Increases (GRIs) as a component of the base
ocean freight assessed by the common carrier, not a charge or
surcharge, and therefore would not be subject to an exemption under
Sec. 520.7(a)(3)(iv) as proposed in the NPRM. In its comments, the
NYNJFF&BA opposed the exclusion of GRIs as a charge that may be passed
through by an NVOCC. NYNJFF&BA at 4-5. The NYNJFF&BA asserted that VOCC
GRIs should be allowed to be passed through in the same way as other
``rapidly changing and proliferating VOCC charges.'' NYNJFF&BA also
notes that current regulations governing NRAs allow an NVOCC to apply
GRIs in the same way as surcharges and accessorial charges. NYNJFF&BA
at 4. Comments from the NYNJFF&BA and NCBFAA added that VOCC GRIs are
often announced with the required 30-day notice but are reduced or
delayed just prior to the effective date. NYNJFF&BA at 4-5; NCBFAA
ANPRM Comment at 6. These comments also indicated that, should the
NVOCC publish an increase in line with the VOCC's published GRI, the
underlying shipper may be subject to the increase, regardless of a
last-minute reduction or delay in effective date by the VOCC, if the
NVOCC does not file a coinciding reduction or delay in its own tariff.
Based on comments received and the current regulation at Sec.
532.5(d)(2), which allows VOCC GRIs to apply to an NRA, the Commission
is revising its regulation at Sec. 520.7(a)(3)(iv) to specify that an
NVOCC has the option to pass through a VOCC GRI to its shipper.
2. Fees Connected to Pass-Through Charges
In its NPRM, the Commission stated that regulations that would
allow an NVOCC to pass through increases in certain charges without
advance notice under specified conditions are not intended to allow a
markup of charges above what the third party has billed. Several
commenters asserted that NVOCCs should be allowed to charge a
``nominal'' fee to recover the cost of the outlay of charges assessed
by an outside entity. See NCBFAA at 4; UWL at 2; C.H. Powell at 2;
Ascent Global Logistics at 1; Mohawk Global at 6; and NYNJFF&BA at 6.
The Commission agrees that NVOCCs are entitled to receive compensation
for services provided, including a fee for the advance payment of
charges on behalf of its customer. However, the Commission's intent in
this regard is to ensure it is clear what service charges are being
charged to the shipper, rather than allowing the NVOCC to simply mark
up the charges assessed by the VOCC. Therefore, the regulation at Sec.
520.7(a)(3)(iv) has been revised to specify that fees from the NVOCC
should be separate and distinguished from charges that are passed
through from the VOCC without markup, and named for the service
provided (e.g., an ``advance payment charge'').
D. Co-Loaded Cargo
The Commission received comments on its proposal to revise the
definition of ``co-loading'' to limit this term to the act of combining
of less-than-container-loads (LCL) of cargo. See generally APL
Logistics at 1-2; Ascent Global at 2; C.H. Powell at 3; Kintetsu at 1;
Mohawk Global at 6-8; NCBFAA at 6; NYNJFF&BA at 7-12; and UWL at 3.
While some commenters suggested that limiting the definition of co-
loading to LCL would prevent full container load (FCL) co-loading,
(see, e.g., APL Logistics at 1 and C.H. Powell at 3), this was not the
Commission's intent. Most commenters largely favored adding a
definition for FCL co-loading, including those supporting the laying
out of a ``set of expectations'' for both LCL and FCL co-loading
situations. See generally APL Logistics at 1-2; Ascent Global at 2;
C.H. Powell at 3; Kintetsu at 1; Mohawk Global at 6-8; NCBFAA NPRM
Comment at 6; and UWL at 3.
The Commission recognizes that the term co-loading has come to
encompass both (1) the combining of LCL cargo by two or more NVOCCs in
a container, and (2) the re-selling of space for FCL cargo by one NVOCC
to another NVOCC. In proposing to limit the
[[Page 27]]
regulatory definition of co-loading to LCL, the Commission did not
intend to prevent arrangements between NVOCCs involving FCL. Instead,
the purpose was to accurately describe co-loading in its traditional
meaning as the physical combining of cargo in a single shipping
container. The Commission could then differentiate regulations that
apply to NVOCC co-loading arrangements that involve LCL cargo from
those that involve FCL cargo. The Commission has ultimately decided
that the definition of co-loading will remain unchanged, and the
differentiations between FCL and LCL co-loaded cargo will instead be
made through the revision of the current co-loading regulations at
section 520.11(c), which limit the co-loading of FCL to shipper-to-
carrier relationships only. The Commission also proposed to require
that an NVOCC that tenders cargo to another NVOCC must annotate each
applicable bill of lading with the identity of any other NVOCC to which
the shipment was tendered. This proposal received unanimous opposition
that fell into two categories. First, tendering NVOCCs opposed
disclosing to their shipper clients the names of the other NVOCCs with
whom they work out of concern for the impact on their competitive
commercial interests. See Yang Ming at 1; Mohawk at 9-10; Ascent at 2;
NYNJFF&BA at 9; NCBFAA at 7; APL Logistics at 2-3; and Kintetsu at 1.
Second, NVOCCs do not necessarily know the names of all NVOCCs to which
the shipment has been passed before it reaches a final master NVOCC
that contracts with the VOCC for ocean transport. See Mohawk at 10;
Ascent at 2; and NYNJFF&BA at 9. Commenters added that annotation will
result in a delay of documentation release as annotation would need to
be input manually. See Yang Ming at 1 and NCBFAA at 7. APL Logistics
and Mohawk Global also commented that they were unaware of any
circumstance where annotation would have provided a benefit to a
beneficiary cargo owner (BCO). See APL Logistics at 3 and Mohawk Global
at 12. Overall, the commenters asserted that any benefit to the BCO
gained from annotation is outweighed by the burden it places on the
NVOCC. See generally APL Logistics at 3 and Mohawk Global at 12. See
also NYNJFFF&BA at 9; NCBFAA at 6; and C.H. Powell at 4.
The Commission notes that the requirement to annotate already
applies to co-loaded cargo pursuant to Sec. 520.11(c)(2). The final
rule does not change Commission regulations in this regard. However,
regulations that govern the co-loading of cargo will be augmented to
clarify the types of relationships that are allowable for the co-
loading of cargo among NVOCCs. Specifically, current regulations make
reference to carrier-to-carrier relationships and shipper-to-carrier
relationships between NVOCCs in a co-loading situation. These
relationships establish the responsibility of each NVOCC as they relate
to each other and to the beneficial cargo owner. In a shipper-to-
carrier relationship, a master NVOCC receives cargo from a tendering
NVOCC and acts as carrier to the tendering NVOCC in issuing its house
bill of lading and assuming legal responsibility as carrier for the
cargo. The revisions to new paragraph 520.11(c)(2) clarify that this
arrangement may be used for the shipment of either LCL or FCL cargo. In
a carrier-to-carrier relationship, the NVOCCs enter into an agreement
which establishes the terms under which the NVOCCs will share container
space for consolidated cargo. Each NVOCC will issue its house bill of
lading for its portion of the cargo and act as carrier to its own
customer. The revisions to new paragraph 520.11(c)(2) clarify that
carrier-to-carrier arrangements will limit this type of arrangement to
LCL cargo only.
E. Other Proposed Changes to Part 520
In addition to these changes, the Commission also made a number of
other changes to 46 CFR 520.2-520.14 as detailed below.
1. The Commission Is Updating Citations Throughout Part 520
The Commission is removing legacy parallel citations that provided
the public with useful information after the codification of the
Commission's authorities in Title 46 of the United States Code. The
Commission is also deleting the definition of ``Act'' from the
definition section. These citations and definition are no longer
necessary or accurate, and the Commission is removing them.
2. Clarifying Revisions
The Commission revises several provisions within part 520 to
clarify when the regulations are expressing a requirement or
obligation. Among these changes include replacing the term ``shall''
with the term ``must'' to clearly indicate that certain acts are
required and to identify regulatory obligations. Similarly, the
Commission also replaces certain usages of the term ``may'' with the
term ``must'' to identify requirements or obligations. In addition, the
Commission made other clarifying edits.
3. Sec. 520.2 Definitions
To clarify the definitions in Sec. 520.2, the Commission: adds
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;
amends the definition of combination rate to spell out the abbreviation
for Tariff Rate Item; amends the definition of commodity description to
require the description to be identified by a specific number; amends
the definition of ``harmonized system'' to remove an outdated reference
to the U.S. Customs Service; amends 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; amends the definition of
``retrieval'' to remove outdated references to dial-up
telecommunications and a network link; amends the definition of
``rules'' to clarify that a common carrier or a conference of common
carriers set the tariff terms and conditions; amends the definition of
``shipper'' to specify that ocean transportation refers to the
transportation of cargo, to specify that the person to whom delivery is
to be made may be a consignee, and to include the meaning of shippers'
association; and amends the definition of ``through transportation'' to
make it consistent with the Shipping Act's revised definition. The
Commission also adds definitions for ``destination scope'' and ``inland
division'' to its regulations. Finally, the Commission removes as
unnecessary the definitions of ``joint rates,'' ``commodity description
number,'' ``local rates,'' ``point of rest,'' and ``shippers'
association.''
4. 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 stated its belief that 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. 87 FR 27971, 27974 (May 10, 2021). To this end, the
Commission adds a provision to Sec. 520.3 to specify that failing to
maintain a tariff will result in the revocation of an NVOCC's license
or
[[Page 28]]
suspension of a foreign-based unlicensed NVOCC's registration. In
addition, the Commission: changes the term used for the person a common
carrier may use to meet their publication requirements from ``agent''
to ``publisher''; includes 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 defines the
time period allowed for the common carrier to provide changes to its
Form FMC-1 to the Commission as within 30 calendar days.
The Commission received one comment regarding this proposal. That
comment stated that the proposed rule seemed excessively harsh, since
tariffs are quite complex and to subject a carrier to the penalty of a
loss of operating authority for an inadvertent updating error would be
excessive. See NYNJFF&BA at 13. Further, the commenter asserted that
the industry would be better served if the Commission issued a warning
to those NVOCCs whose tariffs are found to be non-compliant and provide
an opportunity to remediate any failing, and that the goal is to bring
the industry into compliance. See NYNJFF&BA at 13. The Commission does
not accept the commenter's premise and notes that while a carrier may
be afforded the opportunity to remedy a particular situation depending
on the circumstances at hand, the inclusion of this provision is
intended to convey the seriousness of the consequences that may follow
should the common carrier fail to take action in response to the
Commission's efforts to induce compliance. Accordingly, the Commission
is not persuaded to revise the language in the proposed rule.
The Commission also received general comments regarding the
requirement to publish and maintain a tariff. These comments argued
that tariffs are no longer relevant in light of the prevalence of
privately negotiated agreements, and that tariffs are complex and
difficult to navigate and do not provide transparency of rates and
surcharges. See Mohawk Global at 1-2; NYNJFF&BA at 1-2. The Commission
notes that the Shipping Act requires the publication of tariffs, and
tariff publication is still necessary to protect the shipping public
and ensure compliance with the Shipping Act.
5. Sec. 520.4 Tariff Contents
The Commission revises Sec. 520.4(a)(3) to clarify that the ocean
transportation intermediary that may receive compensation paid by a
common carrier or conference is an ocean freight forwarder as defined
by 46 U.S.C. 40102(19). In addition, the Commission uses plain language
to reword the regulation at Sec. 520.4(a)(4) requiring that a tariff
state each charge separately; revises Sec. 520.4(a)(5) to state that
sample copies of bills of lading must be legible; and revises Sec.
520.4(a)(8) to state that commodity tariffs must contain a retrievable
commodity index.
The Commission also deletes Sec. 520.4(e)(1), which describes
voluntary coding for commodity descriptions. To streamline the rule and
remove a non-mandatory regulation, the Commission deletes paragraph
(e)(1). The Commission notes that, even with the adoption of this
change to section 520.4, 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.
The Commission also makes a variety of other changes to sections
520.5 through 520.14. These changes are listed below:
--Section 520.5 (standard tariff terminology): updates the source for
geographic names listed in tariffs.
--Section 520.6 (retrieval of information): revises 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.
--Section 520.7 (tariff limitations): clarifies the date on which a new
conference member's participation in the conference tariff becomes
effective; specifies that the minimum time allowed to file an overage
claim with a common carrier applies to claims filed by a shipper;
removes a provision stipulating the methods to be used to compute the
weight of green salted hides, in light of requirements mandated by the
International Maritime Organization; adds a new paragraph (h) to Sec.
520.7 to specify that NVOCCs may pass through certain charges received
from ocean common carriers that are not under the control of the ocean
common carrier or conferences; and clarifies that the charges must be
clearly listed in the NVOCC's tariffs and not marked up above cost.
--Section 520.8 (effective dates): replaces the term ``destination
grouping'' with ``destination scope'' in Sec. 520.8(b)(3) to be
consistent with other references to ``destination scope'' used in 46
CFR part 520.
--Section 520.9 (access to tariffs): updates this section to remove
references to obsolete technologies.
--Section 520.10 (integrity of tariffs): revises the requirement to
maintain historical tariff data in Sec. 520.10(a) by defining the time
period that data must be made available to the Commission as generally
being within 45 days of a request and making certain grammatical
corrections to the requirement that common carriers provide tariff
access to the Commission.
--Section 520.11 (non-vessel-operating common carriers): removes as
unnecessary the requirement that an NVOCC must note in its tariff that
it does not tender cargo for co-loading; removes as unnecessary the
requirement in 520.11(c) that an NVOCC may not offer special co-loading
rates for the exclusive use of other NVOCCs, since published tariff
rates are available to all shippers.
--Section 520.12 (time/volume rates): clarifies the time/volume rate
requirements and that common carriers or conferences may cancel time/
volume rates when no shipper accepts these rates within 30 days after
the rates are published.
--Section 520.13 (exemptions and exceptions): updates the governing
rules of this part and the requirements for Department of Defense
cargo, updating references to a military component.
--Section 520.14 (special permission): specifies the documents required
when requesting confidential treatment of an application for special
permission and updates the process for submission and payment of
applications for special permission.
Except for those comments already noted in the preceding paragraphs
in this section (Section E), the Commission received no comments
opposing these proposed changes, and one comment supporting the
proposed changes. See Mohawk Global at 12. The Commission therefore
adopts these changes in this final rule.
II. 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, 5 U.S.C. 553, the
agency must prepare and make available for public comment an initial
regulatory flexibility analysis (IRFA)
[[Page 29]]
describing the impact of the proposed rule on small entities. When an
agency promulgates a final rule after being required to publish a
notice of proposed rulemaking, the agency must prepare and make
available to the public the final regulatory flexibility analysis
(FRFA) or its summary. The IRFA and FRFA requirements, however, do not
apply if the head of the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
To avoid duplicative or unnecessary analyses, the agency must publish
such certification either at the time of publication of a notice of
proposed rulemaking or at the time of publication of the final rule. 5
U.S.C. 605. The Commission published such certification at the time of
the publication of the notice of proposed rulemaking, along with a
statement providing the factual basis for the certification. 87 FR at
27975-27976.
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 NEPA implementing regulation requires 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). After an environmental assessment, the
Commission issued a Finding of No Significant Impact (FONSI) which
became final 10 days after publication of the NPRM as the Commission
received no petition for review. The FONSI and environmental assessment
are available for inspection on the docket at www.regulations.gov.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA)
requires an agency to seek and receive approval from the Office of
Management and Budget (OMB) before collecting information from the
public. 44 U.S.C. 3507. The agency must submit collections of
information in proposed rules to OMB in conjunction with the
publication of the notice of proposed rulemaking. 5 CFR 1320.11.
The information collection requirements in part 520 are currently
authorized under OMB Control Number 3072-0064. In compliance with the
PRA, the Commission submitted the proposed revised information
collection to the OMB. Notice of the revised information collections
was published in the Federal Register and public comments were invited.
See 87 FR 27971 (May 10, 2021). No comments specifically addressed the
revised information collection in part 520. The burden calculations
were updated as part of the evaluation of the final rule. While the
estimated burden to the public for each component remained the same,
the total burden hours increased. The burden hour increase is due to an
increase in the number of entities, particularly NVOCCs, entering the
industry. In the NPRM the Commission estimated the total person-hour
burden at 2,509 person-hours. In this Final Rule, the total person-hour
burden is estimated at 2,931 person-hours.
Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards in E.O. 12988 titled,
``Civil Justice Reform,'' to minimize litigation, eliminate ambiguity,
and reduce burden. Section 3(b) of E.O. 12988 requires agencies to make
every reasonable effort to ensure that each new regulation: (1) clearly
specifies the preemptive effect; (2) clearly specifies the effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct, while promoting simplification and burden
reduction; (4) clearly specifies the retroactive effect, if any; (5)
adequately defines key terms; and (6) addresses other important issues
affecting clarity and general draftsmanship under any guidelines issued
by the Attorney General. This document is consistent with that
requirement.
Regulation Identifier Number
The Commission assigns a regulation identifier number (RIN) to each
regulatory action listed in the Unified Agenda of Federal Regulatory
and Deregulatory Actions (Unified Agenda). The Regulatory Information
Service Center publishes the Unified Agenda in April and October of
each year. You may use the RIN contained in the heading at the
beginning of this document to find this action in the Unified Agenda,
available at https://www.reginfo.gov/public/do/eAgendaMain.
List of Subjects in 46 CFR Part 520
Freight, Intermodal transportation, Maritime carriers, Reporting
and recordkeeping requirements.
For the reasons set forth in the preamble, the Federal Maritime
Commission amends 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. 40101-40102, 40501-40503,
40701-40706, 41101-41109, 46105.
0
2. Amend Sec. 520.1 by revising the last sentence of paragraph (a) and
paragraphs (b)(2) through (4) to read as follows:
Sec. 520.1 Scope and purpose.
(a) * * * They implement the tariff publication requirements of 46
U.S.C. 40501-40503.
(b) * * *
(2) Carriers and conferences to meet their publication requirements
pursuant to 46 U.S.C. 40501-40503;
(3) The Commission to ensure that carrier tariff publications are
accurate and accessible and to protect the public from violations by
carriers of 46 U.S.C. 41101-41106; and
(4) The Commission to review and monitor the activities of
controlled carriers pursuant to 46 U.S.C. 40701-40706.
0
3. Amend Sec. 520.2 by:
0
a. Removing the word ``shall'' from the introductory text;
0
b. Removing the definition of ``Act'';
0
c. Revising the definitions of ``Bulk cargo'', ``Combination rate'',
and ``Commodity description'';
0
d. Removing the definition of ``Commodity description number'';
0
e. Revising introductory text of the definition of ``Controlled
carrier'';
0
f. Adding in alphabetical order a definition for ``Destination scope'';
0
g. Revising the definitions of ``Foreign commerce'' and ``Harmonized
System'';
0
h. Adding in alphabetical order a definition for ``Inland division'';
0
i. Removing the definitions of ``Joint rates'' and ``Local rates'';
[[Page 30]]
0
j. Revising the definition of ``Location group,''
0
k. Removing the definition of ``Point of rest'';
0
l. Revising the definitions of ``Publisher,'' ``Retrieval'', ``Rules'',
and ``Shipper'';
0
m. Removing definition of ``Shippers' association'';
0
n. Revising the definitions of ``Tariff number'' and ``Tariff rate
item'';
0
o. Adding in alphabetical order a definition for ``Through date'';
0
p. Revising the definition of ``Through transportation''; and
0
q. Removing the definition of ``Thru date''.
The revisions and additions read as follows.:
Sec. 520.2 Definitions.
* * * * *
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.
* * * * *
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.
* * * * *
Foreign commerce means that commerce under the jurisdiction of
title 46 of the United States Code.
* * * * *
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 (e.g., consignee);
(4) A shippers' 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
(5) An NVOCC that accepts responsibility for payment of all charges
applicable under the tariff or service contract.
* * * * *
Tariff number means a unique three-digit number assigned by the
publisher to distinguish it from other tariffs. Tariffs must be
identified by the six-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
4. 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. (1) 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 www.fmc.gov.
(2) The common carrier and conference must include on Form FMC-1
its organization name, organization number, home office address, name
and email address and telephone number of the firm's representative,
the location of its tariffs, and the publisher, if any, used to
maintain its tariffs.
(3) Any changes to the above information must be transmitted to BTA
within 30 calendar days.
(4) 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, www.fmc.gov, a list of the locations of all common carrier and
conference tariffs.
(f) NVOCC failure to maintain tariff. Failure to maintain a tariff
will result in
[[Page 31]]
revocation of an NVOCC's license or suspension of a foreign-based
unlicensed NVOCC's registration.
0
5. Amend Sec. 520.4 by:
0
a. Removing the word ``shall'' wherever it appears and adding in its
place the word ``must'';
0
b. Revising paragraphs (a)(3) through (5) and (8);
0
c. Removing paragraph (e)(1);
0
d. Redesignating paragraphs (e)(2) and (3) as paragraphs (e)(1) and
(2); and
0
e. Revising newly redesignated paragraph (e)(2)(i) and paragraphs
(f)(5), (g), and (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 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) * * *
(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 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
6. Revise Sec. 520.5 to read as follows:
Sec. 520.5 Standard tariff terminology.
(a) Approved codes. The Standard Terminology Appendix contains
codes for rate bases, container sizes, service, etc., and units for
weight, measure and distance. They are intended to provide a standard
terminology baseline for tariffs to facilitate retriever efficiency.
Tariff publishers can use additional codes, if they are clearly defined
in their tariffs.
(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 that are currently in use and have not yet been
included in these publications.
0
7. Amend Sec. 520.6 by
0
a. In paragraphs (a) introductory text, (c), and (d), removing the word
``shall'' and adding in its place the word ``must''; and
0
b. Revising paragraphs (b), (e), and (f).
The revisions 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 and surcharges 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 to 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
8. Amend Sec. 520.7 by:
0
a. In paragraphs (a) introductory text, (b), and (c), removing the word
``shall'' and adding in its place the word ``must'';
0
b. In paragraph (a)(3)(i), removing the comma at the end of the
paragraph and adding a semicolon in its place;
0
c. In paragraph (a)(3)(ii):
0
i. Removing the word ``may'' and adding in its place the word ``can'';
and
0
ii. Removing ``, and'' at the end of the paragraph and adding a
semicolon in its place;
0
d. In paragraph (a)(3)(iii), removing the word ``may'' and adding in
its place the word ``can'';
0
e. Adding 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 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
published and effective surcharges, assessorial charges, and general
rate increases, but the NVOCC must clearly list the named charges or
categories of charges in the NVOCC's tariff, and must not mark them up
above cost. Any fee associated with services provided by the NVOCC to
its shipper should be separate and distinguished from the vessel-
operating common carrier's surcharges, assessorial charges, and general
rate increases, and specify the service for which the shipper is being
charged.
* * * * *
(e) Conference situations. (1) New members of a conference must
cancel any independent tariffs applicable to the trades served by the
conference within 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
[[Page 32]]
conference tariff, unless a later effective date is specified.
(2) New conference agreements have ninety (90) days within which to
publish a new tariff.
(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 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 ocean common carrier or conferences and for which the NVOCC
merely acts as a collection agent. The charges or categories of charges
must be clearly listed in the NVOCC's tariffs and not marked up above
cost.
0
9. Amend Sec. 520.8 by:
0
a. Revising paragraphs (b)(3) and (4); and
0
b. In paragraph (c), removing the words ``shall be'' and adding in
their 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 acts as a collection agent for such charges and the
agency making such changes does so without notifying the common carrier
or conference. Ocean common carriers and NVOCCs must not mark up these
charges above cost.
* * * * *
0
10. 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.
(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
11. 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 5
years from the date such information is superseded, canceled, or
withdrawn, and must provide online access to such data for 2 years.
After 2 years, such data must be retained online 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 online. 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 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
12. Revise Sec. 520.11 to read as follows:
Sec. 520.11 Non-vessel-operating common carriers.
(a) Financial responsibility. An ocean transportation intermediary
that operates as a non-vessel-operating common carrier must state in
its tariff publication:
(1) That it has furnished the Commission proof of its financial
responsibility in the manner and amount required by part 515 of this
chapter;
(2) The manner of its financial responsibility;
(3) Whether it is relying on coverage provided by a group or
association to which it is a member;
(4) The name and address of the surety company, insurance company,
or guarantor issuing the bond, insurance policy, or guaranty;
(5) The number of its bond, insurance policy, or guaranty; and
(6) Where applicable, the name and address of the group or
association providing coverage.
(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) Co-loading. NVOCCs must address the following situations in
their tariffs:
(1) If two or more NVOCCs enter into an agreement which establishes
a carrier-to-carrier relationship for the co-loading of cargo, then the
existence of such agreement must be noted in the tariff. Carrier-to-
carrier relationships apply to the co-loading of less than container
loads of cargo only.
(2) 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. Shipper-to-carrier relationships may apply to the co-loading of
full container loads or less than container loads of cargo.
[[Page 33]]
(3) An NVOCC which tenders cargo to another NVOCC for co-loading,
whether under a shipper-to-carrier or carrier-to-carrier relationship,
shall annotate each applicable bill of lading with the identity of any
other NVOCC to which the shipment has been tendered for co-loading.
Such annotation shall be shown on the face of the bill of lading in a
clear and legible manner.
0
13. Amend Sec. 520.12 by
0
a. Revising paragraph (a);
0
b. In paragraphs (b)(2) introductory text and (d), removing the word
``shall'' and adding in its place the word ``must''; and
0
c. Revising paragraphs (c) and (e).
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
14. Amend Sec. 520.13 by:
0
a. Revising paragraphs (a), (b)(2) introductory text, (b)(3)
introductory text, (c)(4), (d)(2) introductory text, (d)(2)(ii)(A)
introductory text, and (d)(2)(ii)(B)(1) and (2); 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 46 U.S.C. 40103 and 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:
* * * * *
(3) Terminal barge operators in Pacific Slope states.
Transportation provided by terminal barge operators in Pacific Slope
states barging containers and containerized cargo by barge between
points in the United States are exempt from the tariff publication
requirements of subtitle IV of title 46 of the United States Code and
the rules of this part, where:
* * * * *
(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 Military 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) Between Canada and U.S. The following services are exempt from
the filing requirements of subtitle IV of title 46 of the United States
Code and the rules of this part:
* * * * *
(ii) * * *
(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
(2) The carrier will remain subject to all other provisions of the
subtitle IV of title 46 of the United States Code.
* * * * *
0
15. Amend Sec. 520.14 by:
0
a. Revising paragraphs (a), (b), (c)(1) and (2), and (c)(3)
introductory text;
0
b. Removing the word ``and'' at the end of paragraph (c)(3)(ii);
0
c. Removing the period at the end of paragraph (c)(3)(iii) and adding
``; and'' in its place;
0
d. Adding paragraph (c)(3)(iv); and
0
e. Revising paragraph (d).
The revisions and addition read as follows:
Sec. 520.14 Special permission.
(a) General. The statute at 46 U.S.C. 40501(e) authorizes the
Commission, in its discretion and for good cause shown, to permit
increases or decreases in rates, or the issuance of new or initial
rates, on less than the statutory notice. The statutes at 46 U.S.C.
40703 and 40704(a) authorize the Commission to permit a controlled
carrier's rates, charges, classifications, rules or regulations to
become effective on less than 30 days' notice. The Commission may also
in its discretion and for good cause shown, permit departures from the
requirements of this part.
(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) * * *
(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
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.
Mary Thien Hoang,
Acting Secretary.
[FR Doc. 2023-27783 Filed 12-29-23; 8:45 am]
BILLING CODE 6730-02-P