Noncontiguous Domestic Trade Tariffs

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Ex Parte No. 533]

FEDERAL MARITIME COMMISSION

[Docket No. 96-04]

Noncontiguous Domestic Trade Tariffs

AGENCIES: Surface Transportation Board, Department of Transportation;

Federal Maritime Commission.

ACTION: Notice.

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

SUMMARY: The Surface Transportation Board (STB or Board) and the

Federal Maritime Commission (FMC or Commission) provide notice as to

how they are implementing the provisions of the ICC Termination Act of

1995 involving tariff filing and rate reasonableness in the

noncontiguous domestic trade (49 U.S.C. 13701 and 13702).1

\1\ The two agencies are handling this matter simultaneously.

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

EFFECTIVE DATE: October 1, 1996.

FOR FURTHER INFORMATION CONTACT: Craig Keats, Office of the General

Counsel, STB, (202) 927-6046 or John Cunningham, Office of the General

Counsel, FMC, (202) 523-5740. [TDD for the hearing impaired: (202) 927-

5721.]

SUPPLEMENTARY INFORMATION: The ICC Termination Act of 1995, Pub. L. No.

104-88, 109 Stat. 803 (ICC Termination Act), abolished the Interstate

Commerce Commission (ICC). The ICC Termination Act transferred

jurisdiction over ``port to port'' operations in the noncontiguous

domestic trade, which had formerly been regulated by the FMC under the

Intercoastal Shipping Act, 1933 (1933 Act) (46 U.S.C. 843-848), to the

Board. See new 49 U.S.C. 13501 and 13521 (giving the Board jurisdiction

over port to port water carrier transportation in the noncontiguous

domestic trade); 49 U.S.C. 13702 (requiring that, with certain

exceptions, water carriers operating in the noncontiguous domestic

trade file tariffs with the Board); and 49 U.S.C. 13701 (providing that

water carrier services in the noncontiguous domestic trade are subject

to rate regulation by the Board).

Section 2 of the ICC Termination Act states that: ``Except as

otherwise provided in this Act, this Act shall take effect on January

1, 1996.'' Under section 335 of the ICC Termination Act, however,

repeal of the 1933 Act, and of portions of the Shipping Act, 1916 (1916

Act), does not become effective until September 30, 1996. In light of

these two statutory provisions, the two agencies, in a notice published

at 61 FR 5835 (Feb. 14, 1996), found that there is some ambiguity as to

whether, at least until September 30, 1996, water carriers operating in

the noncontiguous domestic trade must file their tariffs at the Board

or the Commission, and as to which agency would be responsible for rate

regulation during this interim period. The Board and the Commission,

therefore, sought public comment on how the two agencies could best

administer their respective statutes during the transition period

ending September 30, 1996, in a manner that would be most efficient and

least disruptive to the industry and the shipping public.

Comments and/or replies were filed by 13 carriers, shippers, and

government entities. Of the comments that were responsive to the

questions raised, some took the position that Congress, by postponing

the date on which the relevant provisions of the 1916 Act and the 1933

Act were repealed, must have intended a 9-month transition period. The

majority of the commentors, however, expressed the view that, because

section 33 of the 1916 Act (46 U.S.C. 832) foreclosed the FMC from

regulating operations already subject to ICC (now Board) jurisdiction,

the Board assumed exclusive jurisdiction over operations in the

noncontiguous domestic trade as of January 1, 1996. Although one of

those commentors (Caribbean Shippers' Association) asserted that all

tariffs and agreements on file with the FMC must be canceled

immediately, most concluded that the Board could, under delegation of

authority principles, permit continued tariff filing at the FMC.

After reviewing the comments, we determined that we would monitor

the way in which the industry adapted to the new statute before acting.

We found that, although some carriers preferred filing electronically

at the FMC, while others preferred to file on paper at the Board, there

were no complaints from the shipping public that carriers were not

filing their port to port tariffs. For that reason, and in light of the

statutory ambiguity, we concluded that we could best facilitate the

transition to exclusive Board jurisdiction by permitting carriers to

continue filing at either agency, as they saw fit, until September 30,

1996. Therefore, since passage of the ICC Termination Act, each agency

has recognized and respected the port to port tariffs filed at the

other.

Beginning on October 1, 1996, jurisdiction over port to port

transportation will clearly rest only with the Board. Therefore, as of

that date, all tariffs for such services must be filed with the Board,

rather than the FMC.2 In light of the Congressional report

language urging the Board ``to continue the FMC's practice of allowing

carriers to file their tariffs electronically,'' 3 the two

agencies have worked together to permit the Board to receive tariffs

filed through the FMC's Automated Tariff Filing and Information System

(ATFI). Accordingly, carriers that have filed their port to port

tariffs electronically with the FMC may continue to do so.

Additionally, the Board will allow carriers to use the ATFI system to

file their joint intermodal rate tariffs for noncontiguous domestic

transportation electronically. Electronic filing, however, will not be

mandatory; carriers may file their port to port and intermodal tariffs

in printed form at the Board.4

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

\2\ Similarly, all agreements filed with the FMC pursuant to

section 15 of the 1916 Act will be subject to the antitrust laws as

of that date.

\3\ H.R. Rep. No. 422, 104th Cong., 1st Sess. 206 (1995).

\4\ The Board is authorizing these filings by order issued in

Electronic Tariff Filing of Noncontiguous Domestic Trade Tariffs,

STB Special Tariff Authority No. 4, which is being served

concurrently with this notice.

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

Regulatory Flexibility Analysis

The Board and the Commission certify that this action will not have

a significant impact on a substantial number of small entities. No new

regulatory burdens are imposed, directly or indirectly, on such

entities. The purpose of the decision is simply to facilitate the

transition to a new regulatory regime.

Environmental and Energy Analysis

This action will not significantly affect either the quality of the

human environment or conservation of energy resources.

[[Page 52495]]

Decided: September 19, 1996.

By the Board, Chairman Morgan, Vice Chairman Simmons, and

Commissioner Owen.

Vernon A. Williams,

Secretary, Surface Transportation Board.

By the Commission, Chairman Creel, Commissioners Hsu, Scroggins,

and Won.

Joseph C. Polking,

Secretary, Federal Maritime Commission.

[FR Doc. 96-25617 Filed 10-4-96; 8:45 am]

BILLING CODE 4915-00-P; 6730-01-P