Noncontiguous Domestic Trade Tariffs

[[Page 5835]]

DEPARTMNET 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: Request for Comments.

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

Federal Maritime Commission (FMC or Commission) seek comments on how

best to implement 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.

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DATES: Comments are due on March 11, 1996. Replies are due on March 25,

1996.

ADDRESSES: Participants must send an original and 10 copies of their

comments, referring to STB Ex Parte No. 533/FMC Docket No. 96-04 to:

Office of the Secretary, Case Control Branch, Surface Transportation

Board, 1201 Constitution Ave., N.W., Washington, DC 20423, and 10

copies to Secretary, Federal Maritime Commission, 800 N. Capitol St.,

N.W., Washington, DC 20573.

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

Counsel, STB, (202) 927-6046 or C. Douglass Miller, 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, Public Law

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

Commerce Commission (ICC). The Act assigned responsibility over certain

functions formerly handled by the ICC to either the Secretary of

Transportation or the newly-established STB. 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.''

Historically, the Interstate Commerce Act and the laws administered

by the FMC gave both agencies jurisdiction over operations in the

``domestic offshore trade'' (also referred to as the ``noncontiguous

domestic trade''). The ICC, under 49 U.S.C. 10521, had jurisdiction

over motor carrier operations in the domestic offshore trade, while the

FMC, under the Intercoastal Shipping Act, 1933 (1933 Act) (46 U.S.C.

843-848), had jurisdiction over water carriers operating in the trade.

Because section 33 of the Shipping Act, 1916 (1916 Act) (46 U.S.C. 832)

foreclosed the FMC from regulating operations that were already subject

to ICC jurisdiction, the ICC asserted jurisdiction over joint motor/

water rates in the domestic offshore trade, while the FMC asserted

jurisdiction over ``port to port'' water carrier operations. See

Trailer Marine Transport Corp. v. FMC, 602 F.2d 379 (D.C. Cir. 1979);

Puerto Rico Maritime Shipping Auth. v. ICC, 645 F.2d 1102 (D.C. Cir.

1981).

The ICC Termination Act alters this regulatory scheme. By their

terms, new 49 U.S.C. 13501 and 13521 give the Board jurisdiction over

port to port water carrier transportation in the noncontiguous domestic

trade. Moreover, the provisions of 49 U.S.C. 13702 require that, with

certain exceptions, water carriers operating in the noncontiguous

domestic trade file tariffs with the Board. Finally, 49 U.S.C. 13701

provides that water carrier services in the noncontiguous domestic

trade are subject to rate regulation by the Board. All of these

provisions, standing alone, would appear to establish that, as of

January 1, 1996, carriers operating in the noncontiguous domestic trade

would need to file tariffs at the Board, and at no other Federal

agency.

Under section 335 of the ICC Termination Act, however, repeal of

the 1933 Act and section 33 of the 1916 Act does not become effective

until September 30, 1996. Given that fact, and the ``Except as

otherwise provided in this Act'' language of section 2 of the ICC

Termination Act, 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,

2 and as to which agency shall be responsible for rate regulation

during this interim period. The consequences of filing are not

insubstantial, from either a regulatory or a practical perspective: FMC

tariffs are filed electronically through an established Automated

Tariff Filing and Information System, which the STB cannot practicably

access or replicate; and the ICC Termination Act, through 49 U.S.C.

13701, established a zone of rate freedom that does not appear in the

1916 Act or the 1933 Act.

\2\ As noted, section 33 of the 1916 Act, as amended by section

205 of the ICC Termination Act, precludes the FMC from exercising

concurrent power or jurisdiction over any matter within the power or

jurisdiction of the Board.

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The transfer of jurisdiction over carriers in the domestic offshore

trades from the FMC to the STB also may impact programs that will not

be transferred. For example, there is a question regarding whether

agreements currently filed pursuant to section 15 of the 1916 Act

remain in effect until the repeal of the 1916 Act on September 30,

1996. Whether the FMC has jurisdiction to accept new agreements up to

September 30, 1996 is also an issue. Similar questions may arise with

regard to terminal operators and forwarders.

The Board and the Commission, therefore, request public comment on

how the two agencies can, consistent with the ICC Termination Act and

section 33 of the 1916 Act, best administer their respective statutes

during the transition period ending September 30, 1996, in a manner

that is most efficient and least disruptive to the industry and the

shipping public.

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 seek comment on how

best to make 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.

Decided: February 8, 1996.

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

Commissioner Owen.

Vernon A. Williams,

Secretary, Surface Transportation Board.

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

and Won.

Joseph C. Polking,

Secretary, Federal Maritime Commission.

[FR Doc. 96-3265 Filed 2-13-96; 8:45 am]

BILLING CODE 4915-00-P (1/2); 6730-01-P (1/2)