[Federal Register Volume 63, Number 242 (Thursday, December 17, 1998)]
[Proposed Rules]
[Pages 69603-69606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33366]


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FEDERAL MARITIME COMMISSION

46 CFR Part 525

[Docket No. 98-27]


Marine Terminal Operator Schedules

AGENCY: Federal Maritime Commission.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The Federal Maritime Commission proposes to add new 
regulations for marine terminal operator schedules in accordance with 
the Shipping Act of 1984, as amended by the Ocean Shipping Reform Act 
of 1998 and the Coast Guard Authorization Act of 1998.

DATES: Submit comments on or before January 19, 1999.

ADDRESSES: Address all comments concerning this proposed rule to: 
Joseph C. Polking, Secretary, Federal Maritime Commission, 800 North 
Capitol St., N.W. Room 1046, Washington, D.C. 20573-0001.

FOR FURTHER INFORMATION CONTACT:
Bryant VanBrakle, Director, Bureau of Tariffs, Certification and 
Licensing, Federal Maritime Commission, 800 North Capitol St., N.W. 
Room 940, Washington, D.C. 20573-0001, (202) 523-5796
Thomas Panebianco, General Counsel, Federal Maritime Commission, 800 
North Capitol St., N.W. Room 1018, Washington, D.C. 20573-0001, (202) 
523-5740

SUPPLEMENTARY INFORMATION: The Ocean Shipping Reform Act of 1998 
(``OSRA''), Pub. L. 105-258, 112 Stat. 1902, and the Coast Guard 
Authorization Act of 1998, Sec. 424 of Pub. L. 105-383, 112 Stat. 3411, 
amend the Shipping Act of 1984 (``1984 Act''), 46 U.S.C. app. Sec. 1701 
et seq., in several areas relating to marine terminal operators 
(``MTO(s)''). The Federal Maritime Commission (``Commission'') proposes 
new regulations, 46 CFR part 525, which would implement changes made by 
OSRA to sections 3(15), 8(f), 8(g) and 10(d) of the 1984 Act.

New 46 CFR part 525

    Proposed Sec. 525.1 implements OSRA's revision of section 3(15) of 
the 1984 Act by redesignating that section as 3(14) and amending the 
definition of MTO to extend Commission jurisdiction over those MTOs who 
furnish terminal services or facilities in connection with a common 
carrier and a water carrier subject to Subchapter II of Chapter 135 of 
Title 49, United States Code. That is, the Commission will have 
jurisdiction over an MTO who serves mixed commerce, i.e., international 
and domestic, rather than only those MTOs who solely serve 
international commerce.
    In addition, the proposed rule would implement OSRA's new section 
(8)(f) of the 1984 Act. This section provides MTOs with the option of 
making their schedules of rates, regulations, and practices available 
to the public by publication in a terminal schedule, subject to section 
10(d) of the 1984 Act, as amended by OSRA. The 1984 Act does not 
currently mandate MTO tariff filing, but it is required under

[[Page 69604]]

Commission regulations. 46 CFR 514.1(c)(3)(i). Thus, under OSRA, MTOs 
will no longer be required to file their tariffs with the Commission. 
This option of making MTO schedules available to the public is 
reflected in proposed Sec. 525.2.
    Section 8(f) of OSRA also provides that terminal schedules may 
include limitations of liability, subject to section 10(d), for cargo 
loss or damage pertaining to receiving, delivering, handling or storing 
property at the terminal. As explained in the legislative history, such 
limitation of liability must be consistent with domestic law and 
international agreements and conventions adopted by the United States. 
S. Rep. No. 105-61, 105th Cong., 1st Sess., at 25 (1997) (``Report''). 
The Commission does not interpret this reference to limitations of 
liability as an implied endorsement of the validity of any such claims, 
which remain subject, inter alia, to the proscriptions of section 10(d) 
of the 1984 Act against unjust and unreasonable practices; the 1984 Act 
merely authorizes the publication of any asserted limitations in the 
terminal schedule. This is also reflected in proposed Sec. 525.2(a)(1).
    OSRA further provides in section 8(f) that, if a terminal schedule 
is made available by an MTO, it will be enforceable in an appropriate 
court as an ``implied contract'' between the MTO and the party in 
receipt of the MTO's services. This provision ensures that MTOs are 
``promptly and fairly compensated for the services they provide to 
waterborne commerce.'' Report at 25. The Report language further 
explains that the MTO need not prove, as part of its claim to enforce 
the terminal schedule as an implied contract, that the party receiving 
the terminal services had actual knowledge of the provisions of that 
schedule. Id. However, any actual contract that exists between an MTO 
and another party for terminal services would supersede a terminal 
schedule made available by the MTO that covers those same services, and 
such a terminal schedule would not be enforceable as an implied 
contract. Id. The existence of an actual contract, in any event, would 
not relieve the MTO from liability for violations of the 1984 Act, 
particularly section 10(d), which prohibits an MTO from discriminating 
against a common carrier or an ocean tramp or from giving any undue or 
unreasonable preference or advantage or imposing any undue or 
unreasonable prejudice or disadvantage with respect to any person. This 
is reflected in proposed Sec. 525.2.
    In addition, section 8(g) of OSRA authorizes the Commission to 
prescribe, by regulation, the form and manner in which MTO schedules 
are published. Proposed Sec. 525.3 implements this section by 
delineating how the MTOs shall make their terminal schedules 
``available.'' The proposed rule requires that any terminal schedule 
that is made available to the public shall be available at a reasonable 
charge, if any, and during normal business hours. Neither OSRA nor the 
Report, however, provide whether those schedules should be published in 
either electronic or paper form. In accordance with the Commission's 
authority to prescribe form and manner, the proposed rule requires all 
schedules to be published in electronic form. It appears that requiring 
the schedules to be published in electronic form would not be a 
hardship on MTOs who currently must file their tariffs in an electronic 
form with the Commission, and would provide meaningful access to the 
public. The Commission specifically requests comments on whether there 
is a compelling reason for or against allowing MTOs to publish their 
terminal schedules in paper form as an alternative means of 
publication.
    All MTOs must notify the Commission of the location of any 
published terminal schedules by May 1, 1998. Such notification shall be 
accomplished by submitting Form FMC-1 to the Commission's Bureau of 
Tariffs, Certification and Licensing. The Commission specifically 
requests comments on whether that form should be filed in paper format 
or in electronic format on the Commission's website at www.fmc.gov. The 
Commission is also considering publishing a list of the locations of 
the terminal schedules on its website. The Commission specifically 
requests comments on its proposal to publish this list on the website. 
In addition, any terminal schedule must contain the form and manner 
requirements in proposed Sec. 525.3(g).
    Finally, in order to enforce the prohibited acts of section 10(d), 
MTOs must maintain in their offices a complete and current set of their 
terminal schedules for a period of five (5) years, whether or not made 
available to the public, and shall promptly make such schedules 
available to the Commission upon request. This is reflected in proposed 
Sec. 525.3.
    The Chairman of the Commission hereby certifies, pursuant to 605 of 
the Regulatory Flexibility Act, 5 U.S.C. 605, that the proposed rules 
will not, if promulgated, have a significant economic impact on a 
substantial number of small entities. The affected universe of parties 
is limited to marine terminal operators. The Commission has determined 
that these entities do not come under the programs and policies 
mandated by the Small Business Regulatory Enforcement Fairness Act as 
they typically exceed the threshold figures for number of employees 
and/or annual receipts to qualify as a small entity under Small 
Business Administration guidelines.
    The reporting and disclosure requirements contained in this 
proposed rule have been submitted to the Office of Management and 
Budget (OMB). Public burden for this collection of information is 
estimated to average 5 hours per response. This estimate includes, as 
applicable, the time needed to review instructions, develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to respond to a 
collection of information, search existing data sources, gather and 
maintain the data needed, and complete and review the collection of 
information; and transmit or otherwise disclose the information.
    Send comments regarding the burden estimate to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Attention Desk Officer for the Federal Maritime Commission, New 
Executive Office Building, 725 17th Street, N.W., Washington, D.C. 
20503, within 30 days of publication in the Federal Register.
    The Commission would also like to solicit comments to: (a) evaluate 
whether the proposed collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information will have practical utility; (b) evaluate the accuracy 
of the Commission's burden estimates for the proposed collection of 
information; (c) enhance the quality, utility, and clarity of the 
information to be collected; and (d) minimize the burden of the 
collections of information on respondents, including through the use of 
automated collection techniques or other forms of information 
technology. Comments submitted in response to this proposed rulemaking 
will be summarized and/or included in the final rule and will become a 
matter of public record.

[[Page 69605]]

List of Subjects in 46 CFR Part 525

    Freight, Harbors, Reporting and recordkeeping requirements, 
Warehouses.

    For the reasons discussed in the preamble, the Federal Maritime 
Commission proposes to add part 525 to subchapter B, chapter IV of 46 
CFR as follows:

PART 525--MARINE TERMINAL OPERATOR SCHEDULES

Sec.
525.1  Purpose and scope.
525.2  Terminal schedules.
525.3  Availability of marine terminal operator schedules.

    Authority: 46 U.S.C. app. 1702, 1707, 1709, as amended by Pub. 
L. 105-258, 112 Stat. 1902, and Pub. L. 105-383, 112 Stat. 3411.


Sec. 525.1  Purpose and scope.

    (a) Purpose. This part implements the Shipping Act of 1984, as 
amended by the Ocean Shipping Reform Act of 1998 and the Coast Guard 
Authorization Act of 1998. The form and manner requirements of this 
part are necessary to enable the Commission to meet its 
responsibilities with regard to identifying and preventing unreasonable 
preference or prejudice and unjust discrimination pursuant to section 
10 of the Act.
    (b) Scope. This part sets forth the regulations for the publication 
of terminal schedules by marine terminal operators. Information made 
available under this part may be used to determine marine terminal 
operators' compliance with shipping statutes and regulations.
    (c) Definitions. The following definitions apply to the regulations 
of this part:
    (1) Act means the Shipping Act of 1984, as amended by the Ocean 
Shipping Reform Act of 1998 and the Coast Guard Authorization Act of 
1998.
    (2) Bulk cargo means cargo that is loaded and carried in bulk 
without mark or count.
    (3) Checking means the service of counting and checking cargo 
against appropriate documents for the account of the cargo or the 
vessel, or other person requesting same.
    (4) Commission means the Federal Maritime Commission.
    (5) Dockage means the charge assessed against a vessel for berthing 
at a wharf, pier, bulkhead structure, or bank or for mooring to a 
vessel so berthed.
    (6) Effective date means the date a schedule or an element of a 
schedule becomes effective. Where there are multiple publications on 
the same day, the last schedule or element of a schedule published with 
the same effective date is the one effective for that day.
    (7) Expiration date means the last day, after which the entire 
schedule or a single element of the schedule, is no longer in effect.
    (8) Forest products means forest products including, but not 
limited to, lumber in bundles, rough timber, ties, poles, piling, 
laminated beams, bundled siding, bundled plywood, bundled core stock or 
veneers, bundled particle or fiber boards, bundled hardwood, wood pulp 
in rolls, wood pulp in unitized bales, paper and paper board in rolls 
or in pallet or skid-sized sheets, liquid or granular by-products 
derived from pulping and papermaking, and engineered wood products.
    (9) Free time means the period specified in the terminal schedule 
during which cargo may occupy space assigned to it on terminal 
property, including off-dock facilities, free of wharf demurrage or 
terminal storage charges immediately prior to the loading or subsequent 
to the discharge of such cargo on or off the vessel.
    (10) Handling means the service of physically moving cargo between 
point of rest and any place on the terminal facility, other than the 
end of ship's tackle.
    (11) Heavy lift means the service of providing heavy lift cranes 
and equipment for lifting cargo.
    (12) Loading and unloading means the service of loading or 
unloading cargo between any place on the terminal and railroad cars, 
trucks, lighters or barges or any other means of conveyance to or from 
the terminal facility.
    (13) Marine terminal operator means a person engaged in the United 
States or a commonwealth, territory, or possession thereof, in the 
business of furnishing wharfage, dock, warehouse or other terminal 
facilities in connection with a common carrier, or in connection with a 
common carrier and a water carrier subject to Subchapter II of Chapter 
135 of Title 49, United States Code. A marine terminal operator 
includes, but is not limited to, terminals owned or operated by states 
and their political subdivisions; railroads who perform port terminal 
services not covered by their line haul rates; common carriers who 
perform port terminal services; and warehousemen who operate port 
terminal facilities.
    (14) Organization name means an entity's name on file with the 
Commission and for which the Commission assigns an organization number.
    (15) Person includes individuals, firms, partnerships, 
associations, companies, corporations, joint stock associations, 
trustees, receivers, agents, assignees and personal representatives.
    (16) Rate means a price quoted in a schedule for providing a 
specified level of marine terminal service or facility for a stated 
cargo quantity, on and after a stated effective date or within a 
defined time frame.
    (17) Schedule means a publication containing the actual rates, 
charges, classifications, regulations and practices of a marine 
terminal operator. The term ``practices'' refers to those usages, 
customs or modes of operation which in any way affect, determine or 
change the rates, charges or services provided by a marine terminal 
operator.
    (18) Terminal facilities means one or more structures comprising a 
terminal unit, which include, but are not limited to, wharves, 
warehouses, covered and/or open storage spaces, cold storage plants, 
cranes, grain elevators and/or bulk cargo loading and/or unloading 
structures, landings, and receiving stations, used for the 
transmission, care and convenience of cargo and/or passengers in the 
interchange of same between land and water carriers or between two 
water carriers.
    (19) Terminal services includes checking, dockage, free time, 
handling, heavy lift, loading and unloading, terminal storage, usage, 
wharfage, and wharf demurrage, as defined in this section. The 
definitions of terminal services set forth in this section shall be set 
forth in terminal schedules, except that other definitions of terminal 
services may be used if they are correlated by footnote, or other 
appropriate method, to the definitions set forth herein. Any additional 
services which are offered shall be listed and charges therefor shall 
be shown in the terminal schedule.
    (20) Terminal storage means the service of providing warehouse or 
other terminal facilities for the storage of inbound or outbound cargo 
after the expiration of free time, including wharf storage, shipside 
storage, closed or covered storage, open or ground storage, bonded 
storage and refrigerated storage.
    (21) Usage means the use of terminal facility by any rail carrier, 
lighter operator, trucker, shipper or consignee, its agents, servants, 
and/or employees, when it performs its own car, lighter or truck 
loading or unloading, or the use of said facilities for any other 
gainful purpose for which a charge is not otherwise specified.
    (22) Wharf demurrage means a charge assessed against cargo 
remaining in or on terminal facilities after the expiration

[[Page 69606]]

of free time, unless arrangements have been made for storage.
    (23) Wharfage means a charge assessed against the cargo or vessel 
on all cargo passing or conveyed over, onto, or under wharves or 
between vessels (to or from barge, lighter, or water), when berthed at 
wharf or when moored in slip adjacent to wharf. Wharfage is solely the 
charge for use of wharf and does not include charges for any other 
service.


Sec. 525.2  Terminal schedules.

    (a) Marine terminal operator schedules. A marine terminal operator, 
at its discretion, may make available to the public, subject to section 
10(d) of the Act, a schedule of its rates, regulations, and practices.
    (1) Limitations of liability. Any limitations of liability for 
cargo loss or damage pertaining to receiving, delivering, handling, or 
storing property at the marine terminal contained in a terminal 
schedule must be consistent with domestic law and international 
conventions and agreements adopted by the United States; such terminal 
schedules cannot contain provisions that exculpate or relieve marine 
terminal operators from liability for their own negligence, or that 
impose upon others the obligation to indemnify or hold-harmless the 
terminals from liability for their own negligence.
    (2) Enforcement of terminal schedules. Any schedule that is made 
available to the public by the marine terminal operator shall be 
enforceable by an appropriate court as an implied contract between the 
marine terminal operator and the party receiving the services rendered 
by the marine terminal operator, without proof that such party has 
actual knowledge of the provisions of the applicable terminal schedule.
    (3) Contracts for terminal services. If the marine terminal 
operator has an actual contract with a party covering the services 
rendered by the marine terminal operator to that party, an existing 
terminal schedule covering those same services shall not be enforceable 
as an implied contract.
    (b) Cargo types not subject to this part. (1) Except as set forth 
in paragraph (b)(2) of this section, this part does not apply to bulk 
cargo, forest products, recycled metal scrap, new assembled motor 
vehicles, waste paper and paper waste in terminal schedules.
    (2) Marine terminal operators which voluntarily make available 
terminal schedules covering any of the commodities identified in 
paragraph (b)(1) of this section thereby subject their services with 
respect to those commodities to the requirements of this part.
    (c) Marine terminal operator agreements. The regulations relating 
to agreements to which a marine terminal operator is a party are 
located at part 535 of this chapter.


Sec. 525.3  Availability of marine terminal operator schedules.

    (a) Availability of terminal schedules. (1) Availability to the 
Commission. A complete and current set of terminal schedules used by a 
marine terminal operator, or to which it is a party, shall be 
maintained in its office(s) for a period of five (5) years, whether or 
not made available to the public, and shall promptly be made available 
to the Commission upon request.
    (2) Availability to the public. Any terminal schedule that is made 
available to the public shall be available during normal business hours 
and in electronic form. The public may be assessed a reasonable 
nondiscriminatory charge for access to the terminal schedules; no 
charge will be assessed against the Commission.
    (b) Access to electronically published schedules. Marine terminal 
operators shall provide access to their terminal schedules via a 
personal computer (PC) by:
    (1) Dial-up connection via public switched telephone networks 
(PSTN); or
    (2) The Internet (Web) by:
    (i) Web browser; or
    (ii) Telnet session.
    (c) Dial-up connection via PSTN. (1) This connection option 
requires that terminal schedules provide:
    (i) A minimum of a 14.4Kbps modem capable of receiving incoming 
calls,
    (ii) Smart terminal capability for VT-100 terminal or terminal 
emulation access, and
    (iii) telephone line(s) quality for data transmission.
    (2) The modem may be included in a collection (bank) of modems as 
long as all modems in the bank meet the minimum speed. Smart terminal 
emulation provides for features such as bold, blinking, underlining and 
positioning to specific locations on the display screen.
    (d) Internet connection. (1) This connection option requires that 
systems provide:
    (i) A universal resource locator (URL) Internet address (e.g., 
http://www.tariffsrus.com or http://1.2.3.4), and/or
    (ii) A universal resource locator (URL) Internet address (e.g., 
telnet://tariffsrus or telnet://1.2.3.4), for Telnet session access 
over the Internet.
    (2) Marine terminal operators shall ensure that their Internet 
service providers shall provide static Internet addresses.
    (e) Commission access. Commission telecommunications access to 
systems must include connectivity via a dial-up connection over public 
switched telephone networks (PSTN) or a connection over the Internet. 
Connectivity will be provided at the expense of the publishers. Any 
recurring connection fees, hardware rental fees, usage fees or any 
other charges associated with the availability of the system are the 
responsibility of the publisher. The Commission shall only be 
responsible for the long-haul charges for PSTN calls to a terminal 
schedule initiated by the Commission.
    (f) Notification. Each marine terminal operator shall notify the 
Commission's Bureau of Tariffs, Certification and Licensing (``BTCL''), 
prior to the commencement of marine terminal operations, of its 
organization name, organization number, home office address, name and 
telephone number of firm's representative, the location of its terminal 
schedule(s), and the publisher, if any, used to maintain its terminal 
schedule, by submitting Form FMC-1. Any changes to the above 
information shall be immediately transmitted to BTCL. The Commission 
will publish a list on its website, www.fmc.gov, of the location of any 
terminal schedule made available to the public.
    (g) Form and manner. Each terminal schedule made available by a 
marine terminal operator shall contain an individual identification 
number, effective date, expiration date, if any, and the complete 
terminal schedule in full text and/or data format showing all its 
rates, charges, and regulations relating to or connected with the 
receiving, handling, storing, and/or delivering of property at their 
terminal facilities.

    By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 98-33366 Filed 12-16-98; 8:45 am]
BILLING CODE 6730-01-P