Marine Terminal Operator Schedules

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