Carrier Automated Tariff Systems

Federal RegisterDec 21, 1998

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FEDERAL MARITIME COMMISSION

46 CFR Parts 514 and 520

[Docket No. 98-29]

Carrier Automated Tariff Systems

AGENCY: Federal Maritime Commission.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The Federal Maritime Commission proposes to add new

regulations establishing the requirements for carrier automated tariff

systems in accordance with the Shipping Act of 1984, as modified by the

Ocean Shipping Reform Act of 1998 and the Coast Guard Authorization Act

of 1998. At the same time, the Commission is repealing its current

rules regarding tariffs and service contracts at 46 CFR part 514.

DATES: Submit comments on or before January 20, 1999.

ADDRESSES: Address all comments concerning this proposed rule to:

Joseph C. Polking, Secretary, Federal Maritime Commission, 800 North

Capitol Street, N.W., Washington, D.C. 20573-0001.

FOR FURTHER INFORMATION CONTACT:

Thomas Panebianco, General Counsel, Federal Maritime Commission, 800

North Capitol Street, N.W., Washington, D.C. 20573-0001, (202) 523-5740

and

Bryant L. VanBrakle, Director, Bureau of Tariffs, Certification and

Licensing, 800 North Capitol Street, N.W., Washington, D.C. 20573-0001,

(202) 523-5796

SUPPLEMENTARY INFORMATION: The Ocean Shipping Reform Act of 1998

(``OSRA''), Pub. L. 105-258, 112 Stat. 1902, amends the Shipping Act of

1984 (46 U.S.C. app. sec. 1702 et seq.) (``1984 Act'') in several

areas, significantly altering the manner by which the United States

regulates international ocean shipping. One of the most noteworthy

changes is in the treatment of common carrier tariffs, the publications

which contain the rates and charges for their transportation services.

Currently, common carriers and conferences file their tariffs with the

Federal Maritime Commission's (``FMC'' or ``Commission'') Automated

Tariff Filing and Information System (``ATFI''). Under OSRA, carriers

no longer have to file with the Commission, but are required to publish

their rates in private, automated tariff systems. (Section 8(a)(1) of

the 1984 Act). These tariffs must be made available electronically to

any person, without limits on time, quantity, or other such limitation,

through appropriate access from remote locations, and a reasonable

charge may be assessed for such access, except for Federal agencies.

(Section 8(a)(2)). In addition, the Commission is charged with

prescribing the requirements for the ``accessibility and accuracy'' of

these automated tariff systems. The Commission also can prohibit the

use of such systems, if they fail to meet the requirements it

establishes. (Section 8(g)).

The Commission is, accordingly, proposing new regulations at 46 CFR

part 520, to implement the changes occasioned by OSRA. In addition, the

Commission is proposing to remove existing part 514, which deals mainly

with the filing of tariffs in ATFI.

In anticipation of the passage of OSRA, the Commission published a

notice of inquiry (``NOI'') in the Federal Register on July 2, 1998,

Docket No. 98-10, Inquiry Into Automated Tariff Filing Systems as

Proposed by the Pending Ocean Shipping Reform Act of 1998. The

Commission sought comments from the ocean transportation industry and

the general public on how best to establish requirements for carriers'

automated tariff systems. To this end, the Commission proposed fifteen

questions to better focus discussion on the proper areas. The

Commission subsequently received comments from eighteen commenters,

representing all segments of the ocean transportation industry. Several

of these commenters were trade associations representing substantial

memberships.

These comments proved useful to the Commission in preparing this

proposed rule. Although there was no unanimity among commenters, there

was general consensus on some issues. For example, most commenters

agreed that tariff information should be retained for 5 years and that

there should be some standardization of tariff information. Moreover,

some comments enabled the Commission to better focus its efforts in one

direction or another.

One of the primary functions of the publication of tariffs is to

provide the shipping public with accessible and reliable information on

the price and service options to move particular commodities from point

A to point B. Consistent with OSRA's common carriage principles,

shippers should be able to use this information to compare competing

carriers' offerings and to assess whether they are being unreasonably

discriminated against vis-a-vis their competitors. In addition, public

tariff information enables carriers to monitor their competitors and to

gain a complete picture of the marketplace in a particular trade.

An equally important function of tariff publication is to permit

the Commission to monitor the rate activity of carriers and

conferences. In light of

[[Page 70369]]

the fact that OSRA continues to grant antitrust immunity for collective

ratemaking, the ability to monitor collectively-established rates

remains particularly important. The Commission also needs to be able to

monitor carrier rate activity to ensure that the prohibited acts in

section 10 of the 1984 Act are not violated. In this regard, the

Commission will always need a historical record of rate activity,

commensurate with the five year statute of limitations in the 1984 Act.

In addition, the ability to monitor the rate activity of controlled

carriers is crucial to the Commission's enforcement of the controlled

carrier provisions of the 1984 Act.

The proposed rule is an attempt to reconcile these basic purposes

of tariff publication with the relative discretion Congress has granted

carriers to develop their own automated tariff systems. The report of

the Senate Committee on Commerce, Science, and Transportation, S. Rep.

No. 61, 105th Cong., 1st Sess. (1997) (``Committee Report''), is

instructive in this regard. The Committee noted that innovative private

sector approaches, such as World Wide Web pages, should be encouraged,

stating that common carriers should be free to develop their own means

of tariff publication. Committee Report at 23. Although the Committee

reiterated that there should be no government restraints on the design

of a private tariff publication system, it also stated that such

systems must assure the integrity of the common carrier's tariff and

the tariff system as a whole and provide the appropriate level of

public access to tariff information. Id. The Committee also stated that

tariff information should be ``simplified and standardized.'' Id. The

Committee further noted that the Commission will retain its authority

to suspend or prohibit the use of tariffs found to violate the 1984 Act

or other United States shipping laws. Id at 22-23.

The proposed rule attempts to meld the various Congressional

directives on OSRA and its legislative history to produce tariff

publication requirements that fully comport with the letter and spirit

of OSRA. It should enable common carriers to present their pricing

information in a variety of ways, while still allowing shippers and the

Commission meaningful access to accurate information. A specific

section-by-section analysis of the proposed rule follows.

Section 520.1 Scope and Purpose

This section notes that part 520 contains the regulations governing

the publication of tariffs in automated systems by common carriers and

conferences in the United States waterborne foreign commerce, pursuant

to the changes occasioned by OSRA. In addition, this section sets forth

the four basic purposes of the part, to enable: (1) Shippers and the

public to obtain reliable and useful rate information; (2) carriers and

conferences to meet their publication requirements; (3) the FMC to

ensure that tariffs are accurate and accessible and to protect against

section 10 violations; and (4) the FMC to monitor activities of

controlled carriers subject to section 9 of the 1984 Act.

Section 520.2 Definitions

This section contains many of the definitions that currently appear

at 46 CFR 514.2. Some of these have been updated to reflect changes to

the 1984 Act's definitions by OSRA. These include: ``common carrier,''

``controlled carrier,'' ``forest products,'' ``loyalty contract,''

``ocean transportation intermediary,'' and ``shipper.'' In addition,

new definitions are proposed for ``Act,'' ``conference,'' ``effective

date,'' ``Harmonized System,'' ``publication date,'' ``retrieval,''

``tariff rate item (``TRI''),'' ``tariff number,'' and ``TRI number.''

Modifications have also been made to some of the definitions that have

been carried forward so that they comport with changes made elsewhere

in the proposed rule.

Section 520.3 Publication Responsibilities

This section sets forth the basic requirement that all common

carriers and conferences must publish their tariffs in automated tariff

systems, but also notes that they may use agents to meet this

responsibility. In addition, proposed Sec. 520.3(b) requires

conferences to publish in their systems independent action and open

rates offered by their members.

Section 520.3(c) requires that certain basic information must be

provided to the Commission prior to a carrier or conference initiating

service under an automated tariff. This information includes the

organization's legal name, trade name, address, contact, tariff

location, publisher, and type of entity. This information is necessary

to enable the Commission to meet its responsibilities under OSRA, and

must be updated whenever any changes occur. Carriers and conferences

can provide this information by submitting Form FMC-1, or by entering

the information through an interactive program on the Commission's home

page.

Section 520.3(d) provides that the Commission will publish on its

website a listing of the locations of all carrier and conference

tariffs. This should enable the general public to find a particular

carrier's tariff by simply visiting an all-inclusive site. The

Commission specifically requests comments on its proposal to publish

this list on the website.

Section 520.4 Tariff Contents

Section 520.4(a) sets forth the general contents for all tariffs

published pursuant to this part. This provision does not prescribe a

particular design or structure, but does prescribe what must be

included in tariffs. The first six items are specifically required by

section 8(a)(1) of the 1984 Act. In addition, all tariffs are required

to contain an organization record, a tariff record, and tariff rules,

while commodity tariffs must also contain commodity descriptions and

tariff rate items. Carriers and conferences are otherwise free to

structure their tariff publications as they see fit.

The organization record contains basic information about the

organization which is publishing the tariff. This includes its: name,

assigned number, agreement number, type, address and phone number, and

names of affiliates to conferences or agreements. An organization will

have only one organization record, which it can use with the various

tariffs it may publish.

The tariff record contains information unique to each tariff and

includes: Organization name and number, tariff number, tariff title,

tariff type, origin and destination scope, contact person and address,

and any default measurements and currency units.

Section 520.4(c) does not require tariffs to contain a lengthy set

of prescribed rules with very specific contents. Instead, carriers or

conferences must simply publish any rule that affects the application

of their tariffs. If they adopt rules addressing certain specified

subject areas, they are only required to use specific titles for the

rules and are free to draft their particular contents in whatever

manner they deem appropriate.

Section 520.4(d) requires each separate commodity in a tariff to

have a corresponding and unique 10-digit numeric code. Although tariff

publishers can use any coding pattern they choose, they are encouraged

to use the United States Harmonized Tariff Schedule. In addition,

publications must contain a commodity index representing the

commodities covered by the tariff.

A tariff rate item (``TRI'') is the single freight rate in effect

for the transportation of cargo under a specified

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set of transportation conditions. Section 520.4(e) sets forth the basic

requirements for what must be contained in a TRI. In addition,

Sec. 520.4 allows publishers to define and create location groups and

requires inland rate tables if carriers provide intermodal

transportation at combination rates. Lastly, this section requires

conference tariffs to contain specific instructions concerning shipper

requests and complaints.

Section 520.5 Standard Tariff Terminology

This section states that the Standard Terminology Codes set forth

in appendix A shall be used by tariff publishers. These codes reflect

existing industry usage and merely carry forward a standard language

for certain items, consistent with Congress' direction that tariff

information should be simplified and standardized. Committee Report at

18. The Commission does not believe that this list is necessarily all-

inclusive or will remain static, and will, therefore, entertain

requests for changes on a case-by-case basis. If the Commission adopts

a suggested change, it will provide notice on its web page.

Section 520.5(b) provides that tariffs must use points or locations

that appear in the National Imagery and Mapping Agency gazetteer and

that ports used should appear in the World Port Index.

Section 520.6 Retrieval of Information

This section sets forth the requirements and procedures by which

retrievers can obtain information from a tariff publication. These

requirements are proposed by the Commission in order to meet OSRA's

requirement that tariff information be accessible to the public and

provide, we believe, a minimal but reasonable degree of accessibility.

As an initial matter, tariffs must present users with a tariff

selection option or the capability to select an object group, e.g.

rules. Tariffs must also provide the capability to search for a

commodity by text search or number search. Retrievers should also be

able to enter all 14 numbers to directly access a specific tariff rate

item.

If retrievers select a specific object group, they should be

presented with a list of objects within the group or a search mechanism

to locate an object within the group. In addition, Sec. 520.5(e)

provides that the minimum rate calculation capability for tariffs will

be a calculated basic ocean freight (``BOF'') (which would include

certain adjustments for minimum quantities, quantity discounts, etc.)

and a list of all assessorial charges that apply to the retriever-

entered parameters. This should enable shippers to ascertain the true

cost of their transportation movement, without requiring carriers to

calculate a ``bottom-line'' freight rate. While ``bottom-line''

calculations would certainly be a desirable feature of any public

tariff system, and have been a requirement in ATFI, the Commission

believes that requiring such capabilities would not be consistent with

Congressional intent.

Section 520.7 Tariff Limitations

This section contains certain proscriptions on tariffs not

otherwise contained in the rule. As a general matter, tariffs must be

clear and definite, in English, must not cross-reference other tariffs,

nor be duplicative. In addition, carriers and conferences must inform

BTCL whenever an existing tariff is canceled.

This section also contains various proscriptions that were

previously contained in tariff rules and are deemed still to be

relevant. These include subsections addressing: rate applicability,

minimum quantity rates, green salted hides, conferences, overcharge

claims, and returned cargo.

Section 520.8 Effective Dates

This section restates the basic statutory proscription that new or

initial rates or rates resulting in an increased cost to a shipper may

not become effective before 30 calendar days after publication.

However, rates for the transportation of United States Department of

Defense cargo may be effective upon publication as may changes in rates

that result in a decrease in cost to a shipper. In addition, the

following amendments are permitted upon publication: (1) Those

resulting in no change in cost to a shipper; (2) cancellation of a

tariff due to cessation of service; (3) addition of certain ports or

points to existing groupings; and (4) changes in charges over which the

carrier has no control.

Section 520.9 Access to Tariffs

This section sets forth the technical requirements for providing

access to automated tariffs systems. First, carriers and conferences

must provide public access by way of a personal computer by either

dial-up connection via public switched telephone networks (``PSTN'') or

the Internet. Various requirements relating to each type of

connectivity are presented. FMC access must also be via dial-up

connection over PSTNs or a connection over the Internet. In addition,

any recurring fees shall be the responsibility of the publisher, but

the Commission will be responsible for long-haul charges for PSTN calls

initiated by it.

Section 520.9(e) reiterates the statutory proscriptions that: (1)

Tariffs must be made available to any person without limits as to time,

quantity, or other limitation; (2) carriers do not have to provide

terminals for remote access; and (3) carriers may assess reasonable

fees for access, but not against Federal agencies, including the FMC;

and further states that tariff systems must contain user instructions.

Lastly, Sec. 520.9(g) requires carriers to provide the FMC

documentation and a requested number of user identification and

passwords. This will enable the Commission to meet its responsibilities

under the 1984 Act.

Section 520.10 Integrity of Tariffs

In an effort to ensure the integrity of individual tariffs and of

the tariff system as a whole, this section requires carriers to

maintain data in their tariff publication systems for 5 years from the

date the information is superseded, and to provide an on-line access to

such data. This is consistent with the five-year statute of limitations

for Commission civil penalty actions set forth in section 13(f) of the

1984 Act. In addition, tariffs shall provide an access date capability,

so that data in effect on a specified date can be retrieved. Without

such capability, it would be impossible for the shippers or the

Commission to ascertain accurate rate information concerning past

shipments. Carriers must also provide BTCL with a written certification

from an officer that the information in their tariffs is true and

accurate and that no unlawful alterations will be permitted. The

Commission is proposing to accept this procedure in lieu of mandating

particular systems for ensuring tariff integrity and security. This

section further notes that the Commission will periodically review

published tariff systems and will prohibit use of systems that fail to

meet the requirements of this part. To aid in this endeavor, carriers

must provide the Commission reasonable access to their systems and

records in order to conduct reviews.

Section 520.11 Non-Vessel-Operating Common Carriers

This section carries forward and gathers in one place various

provisions relating to NVOCCs that were spread throughout part 514. The

financial responsibility requirements and agent for service of process

have been taken from 46 CFR 514.15(b)(24) and the co-loading provision

comes from 46 CFR 514.5(b)(14). The proposed rule essentially carries

these provisions

[[Page 70371]]

forward, with minor modifications. The Commission may address at a

later date the question of co-loading practices with respect to OSRA's

modified criteria for exemptions, as well as other changes made by

OSRA.

Section 520.12 Time/Volume Rates

The provision relating to time/volume rates in foreign commerce is

contained in 46 CFR 514.13(b)(19)(i). The proposed rule has placed them

in a separate section, while generally carrying forward the previous

requirements affecting time/volume rates. In addition, this section

permits carriers to cancel time/volume rates which have not been

``accepted'' by a shipper within 30 days and prohibits the use of

liquidated damages provisions in time/volume rate offerings. The

Commission believes that the use of liquidated damages provisions are

more appropriate to service contracts.

Section 520.13 Exemptions

This section sets forth various services and cargo types that are

currently exempt under 46 CFR 514.3. Several of the prior exemptions

have not been carried forward because they are no longer relevant to a

carrier tariff publication rule or they are no longer subject to the

Commission's jurisdiction. However, the Commission questions whether

all of the exemptions carried forward are still necessary and

accordingly invites comment by interested parties as to the continued

need for certain exemptions. The proposed rule further notes future

exemption requests will be governed by section 16 of the 1984 Act and

Rule 67 of the Commission's rules of practice and procedure. 46 CFR

502.67.

Section 520.14 Special Permission

Proposed Sec. 520.14 essentially carries forward the special

permission procedure set forth at 46 CFR 514.18. Minor modifications

have been made to reflect the changes occasioned by OSRA.

Inland Portions of Through Movements to Europe

Unlike the United States, it appears that the European Commission

(``E.C.'')--while permitting conference tariffs for the ocean movement

of cargo--prohibits conference tariffs which cover the movement of

cargo to inland points in Europe. Therefore, it seems that carriers in

the U.S.-European trade may participate in a conference tariff covering

U.S.-Europe ocean movements, and utilize individual tariffs covering

European inland transport for the same shipper customer. A question has

arisen as to whether these tariffs for European inland transport must

be published under the Act. It would seem that publishing would be

consistent with statutory requirements to the extent the tariffs

establish the European inland portion of a through rate charged by a

carrier in a U.S.-Europe intermodal movement. However, the Commission

welcomes comments on how it could minimize the regulatory burdens

occasioned by these differences in regulatory regimes, to the extent it

may do so given its own statutory responsibility.

The reporting requirements contained in 46 CFR part 520 have been

submitted to the Office of Management and Budget (OMB). Public burden

for this collection of information is estimated to be 313,400 hours for

3,000 respondents. 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, NW.,

Washington, DC 20503 within 30 days of publication in the Federal

The FMC 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

collection of information on respondents, including 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.

The Chairman of the Commission certifies, pursuant to section 605

of the Regulatory Flexibility Act, 5 U.S.C. 605, that the proposed rule

would not, if promulgated, have a significant impact on a substantial

number of small entities. The rule will either have no effect on small

entities, or in the case where the rule is likely to impact small

entities, the economic impact will be de minimis.

List of Subjects in 46 CFR Parts 514 and 520

Common Carrier; Freight; Harbors, Intermodal transportation;

Maritime carriers; Reporting and recordkeeping requirements.

Therefore, for the reasons set forth above, part 514 to subchapter

C, chapter IV of 46 CFR is proposed to be removed and part 520 to

subchapter B, chapter IV of 46 CFR is proposed to be added as set forth

below:

PART 514--[REMOVED]

PART 520--CARRIER AUTOMATED TARIFFS

Sec.

520.1 Scope and purpose.

520.2 Definitions.

520.3 Publication responsibilities.

520.4 Tariff contents.

520.5 Standard tariff terminology.

520.6 Retrieval of information.

520.7 Tariff limitations.

520.8 Effective dates.

520.9 Access to tariffs.

520.10 Integrity of tariffs.

520.11 Non-vessel-operating common carriers.

520.12 Time/volume rates.

520.13 Exemptions.

520.14 Special permission.

Appendix A to Part 520--Standard Terminology and Codes

Authority: 5 U.S.C. 553; 46 U.S.C. app. 1701-1702, 1707-1709,

1712, 1716; Pub. L. 105-258, 112 Stat. 1902; and sec. 424 of Pub. L.

105-383.

Sec. 520.1 Scope and purpose.

(a) Scope. The regulations of this part govern the publication of

tariffs in automated systems by common carriers and conferences in the

waterborne foreign commerce of the United States. They cover the

transportation of property by such carriers, including through

transportation with inland carriers. They implement the tariff

publication requirements of section 8 of the Shipping Act of 1984

(``Act''), as modified by the Ocean Shipping Reform Act of 1998 and

section 424 of Pub. L. 105-258.

(b) Purpose. The requirements of this part are intended to permit:

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(1) Shippers and other members of the public to obtain reliable and

useful information concerning the rates and charges that will be

assessed by common carriers and conferences for their transportation

services;

(2) Carriers and conferences to meet their publication requirements

pursuant to section 8 of the Act;

(3) The Commission to ensure that carrier tariff publications are

accurate and accessible and to protect the public from violations by

carriers of section 10 of the Act; and

(4) The Commission to review and monitor the activities of

controlled carriers pursuant to section 9 of the Act.

Sec. 520.2 Definitions.

The following definitions shall apply to this part:

Act means the Shipping Act of 1984, as amended by the Ocean

Shipping Reform Act of 1998.

Amendment means any change, alteration, correction or modification

of an existing tariff.

Assessorial charge means the amount that is added to the basic

ocean freight rate.

BTCL means the Commission's Bureau of Tariffs, Certification and

Licensing or its successor bureau.

Bulk cargo means cargo that is loaded and carried in bulk without

mark or count in a loose unpackaged form, having homogeneous

characteristics. Bulk cargo loaded into intermodal equipment, except

LASH or Seabee barges, is subject to mark and count and is, therefore,

subject to the requirements of this part.

Co-loading means the combining of cargo by two or more NVOCCs for

tendering to an ocean common carrier under the name of one or more of

the NVOCCs.

Combination rate means a rate for a shipment moving under

intermodal transportation which is computed by the addition of a TRI,

and an inland rate applicable from/to inland points not covered by the

TRI.

Commission means the Federal Maritime Commission.

Commodity description means a comprehensive description of a

commodity listed in a tariff, including a brief definition of the

commodity, any applicable assessorial, related assessorial charges if

any, and the commodity index entries by which the commodity is

referenced.

Commodity description number means a 10-digit number used to

identify a commodity description.

Commodity index means an index of the commodity descriptions

contained in a tariff.

Commodity rate means a rate for shipping to or from specific

locations a commodity or commodities specifically named or described in

the tariff in which the rate or rates are published.

Common carrier means a person holding itself out to the general

public to provide transportation by water of cargo between the United

States and a foreign country for compensation that:

(1) Assumes responsibility for the transportation from port or

point of receipt to the port or point of destination; and

(2) Utilizes, for all or part of that transportation, a vessel

operating on the high seas or the Great Lakes between a port in the

United States and a port in a foreign country, except that the term

does not include a common carrier engaged in ocean transportation by

ferry boat, ocean tramp, or chemical parcel tanker or by a vessel when

primarily engaged in the carriage of perishable agricultural

commodities:

(i) If the common carrier and the owner of those commodities are

wholly-owned, directly or indirectly, by a person primarily engaged in

the marketing and distribution of those commodities and

(ii) Only with respect to the carriage of those commodities.

Conference means an agreement between or among two or more ocean

common carriers which provides for the fixing of and adherence to

uniform tariff rates, charges, practices and conditions of service

relating to the receipt, carriage, handling and/or delivery of

passengers or cargo for all members, but the term does not include

joint service, consortium, pooling, sailing, or transshipment

agreements.

Consignee means the recipient of cargo from a shipper; the person

to whom a transported commodity is to be delivered.

Container means a demountable and reusable freight-carrying unit

designed to be transported by different modes of transportation and

having construction, fittings, and fastenings able to withstand,

without permanent distortion or additional exterior packaging or

containment, the normal stresses that apply on continuous all-water and

intermodal transportation. The term includes dry cargo, ventilated,

insulated, refrigerated, flat rack, vehicle rack, liquid tank, and

open-top containers without chassis, but does not include crates, boxes

or pallets.

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 shall be deemed to

exist with respect to any common carrier if:

(1) A majority portion of the interest in the common carrier is

owned or controlled in any manner by that government, by an agency

thereof, or by any public or private person controlled in any manner by

that government, by any agency thereof, or by any public or private

person controlled by that government; or

(2) That government has the right to appoint or disapprove the

appointment of a majority of the directors, the chief operating officer

or the chief executive officer of the common carrier.

Effective date means the date upon which a published tariff or

tariff element is scheduled to go into effect. Where there are multiple

publications to a tariff element on the same day, the last element

published with the same effective date is the one effective for that

day.

Expiration date means the last day after which the entire tariff or

tariff element is no longer in effect.

Foreign commerce means that commerce under the jurisdiction of the

Act.

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.

Harmonized Code means the coding provisions of the Harmonized

System.

Harmonized System means the Harmonized Tariff Schedule of the

United States (``US HTS''), based on the international Harmonized

System, administered by the U.S. Customs Service for the U.S.

International Trade Commission.

Inland point means any city and associated state/province, country,

U.S. ZIP code, or U.S. ZIP code range, which lies beyond port terminal

areas. (A city may share the name of a port: the immediate ship-side

and terminal area is the port, but the rest of the city is considered

an inland point.)

Inland rate means a rate specified from/to an ocean port to/from an

inland point, for specified modes of overland transportation.

Inland rate table means a structured matrix of geographic inland

locations (points, postal codes/postal code ranges, etc.) on one axis

and transportation modes (truck, rail, etc.) on the other

[[Page 70373]]

axis, with the inland rates specified at the matrix row and column

intersections.

Intermodal transportation means continuous transportation involving

more than one mode of service (e.g., ship, rail, motor, air), for

pickup and/or delivery at a point beyond the area of the port at which

the vessel calls. The term ``intermodal transportation'' can apply to

``through transportation (at through rates)'' or transportation on

through routes using combination rates.

Joint rates means rates or charges established by two or more

common carriers for ocean transportation over the combined routes of

such common carriers.

Local rates means rates or charges for transportation over the

route of a single common carrier (or any one common carrier

participating in a conference tariff), the application of which is not

contingent upon a prior or subsequent movement.

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 may

represent tariff origin and/or destination scope and TRI origin and/or

destination.

Loyalty contract means a contract with an ocean common carrier or

agreement by which a shipper obtains lower rates by committing all or a

fixed portion of its cargo to that carrier or agreement and the

contract provides for a deferred rebate arrangement.

Ocean common carrier means a vessel-operating common carrier.

Ocean transportation intermediary means an ocean freight forwarder

or a non-vessel-operating common carrier. For purposes of this part,

the term

(1) Ocean freight forwarder means a person that----

(i) In the United States, dispatches shipments from the United

States via a common carrier and books or otherwise arranges space for

those shipments on behalf of shippers; and

(ii) Processes the documentation or performs related activities

incident to those shipments; and

(2) Non-vessel-operating common carrier (``NVOCC'') Means a common

carrier that does not operate the vessels by which the ocean

transportation is provided, and is a shipper in its relationship with

an ocean common carrier.

Open rate means a rate on a specified commodity or commodities over

which a conference relinquishes or suspends its ratemaking authority in

whole or in part, thereby permitting each individual ocean common

carrier member of the conference to fix its own rate on such commodity

or commodities.

Organization name means an entity's name on file with the

Commission and for which the Commission assigns an organization number.

Organization record means information regarding an entity,

including its name, address, and organization type.

Origin scope means a location group defining the geographic range

of cargo origins covered by a tariff.

Person includes individuals, firms, partnerships, associations,

companies, corporations, joint stock associations, trustees, receivers,

agents, assignees and personal representatives.

Point of rest means that area on the terminal facility which is

assigned for the receipt of inbound cargo from the ship and from which

inbound cargo may be delivered to the consignee, and that area which is

assigned for the receipt of outbound cargo from shippers for vessel

Port means a place at which a common carrier originates or

terminates (by transshipment or otherwise) its actual ocean carriage of

cargo or passengers as to any particular transportation movement.

Project rates means rates applicable to the transportation of

materials and equipment to be employed in the construction or

development of a named facility used for a major governmental,

charitable, manufacturing, resource exploitation and public utility or

public service purpose, including disaster relief projects.

Proportional rates means rates or charges assessed by a common

carrier for transportation services, the application of which is

conditioned upon a prior or subsequent movement.

Publication date means the date a tariff or tariff element is

published in a carrier's or conference's tariff.

Publisher means an organization authorized to publish or amend

tariff information.

Rate means a price stated in a tariff for providing a specified

level of transportation service for a stated cargo quantity, from

origin to destination, on and after a stated effective date or within a

defined time frame.

Retrieval means the process by which a person accesses a tariff via

dial-up telecommunications or a network link 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 the tariff owner

which govern the application of tariff rates, charges and other

matters.

Scope means the location group(s) (geographic groupings(s)) listing

the ports or ranges of ports to and from which the tariff's rates

apply.

Shipment means all of the cargo carried under the terms of a single

bill of lading.

Shipper means:

(1) A cargo owner;

(2) The person for whose account the ocean transportation is

provided;

(3) The person to whom delivery is to be made

(4) A shipper's association; or

(5) An NVOCC that accepts responsibility for payment of all charges

applicable under the tariff or service contract.

Shippers' association means a group of shippers that consolidates

or distributes freight on a nonprofit basis for the members of the

group in order to secure carload, truckload, or other volume rates or

service contracts.

Special permission means permission, authorized by the Commission,

for certain tariff publications that do not conform with applicable

regulations, usually involving effectiveness on less than statutory

notice.

Tariff means a publication containing the actual rates, charges,

classifications, rules, regulations and practices of a common carrier

or a conference of common carriers. The term practices refers to those

usages, customs or modes of operation which in any way affect,

determine or change the transportation rates, charges or services

provided by a common carrier or conference and, in the case of

conferences, must be restricted to activities authorized by the basic

conference agreement.

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 may move from origin

to destination under a single specified set of transportation

conditions, such as container size or temperature.

Tariff number means a unique 3-digit number assigned by the

publisher to distinguish it from other tariffs. Tariffs may be

identified by the 6-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.

TRI number means a 14-digit number which consists of the commodity

code (first ten digits) and four unique suffix differentiate TRIs

within the same commodity description.

Through rate means the single amount charged by a common carrier in

connection with through transportation.

[[Page 70374]]

Through transportation means continuous transportation between

points of origin and destination, either or both of which lie beyond

port terminal areas, 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 point or port and a foreign

point or port.

Thru 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.

Time/volume rate means a rate published in a tariff which is

conditioned upon receipt of a specified aggregate volume of cargo or

aggregate freight revenue over a specified period of time.

Trade name means a name used for conducting business, but which is

not necessarily its legal name. This is also known as a ``d/b/a''

(doing business as) name.

Transshipment means the physical transfer of cargo from a vessel of

one carrier to a vessel of another in the course of all-water or

through transportation, where at least one of the exchanging carriers

is a vessel-operating carrier subject to the Commission's jurisdiction.

Sec. 520.3 Publication responsibilities.

(a) General. Unless otherwise exempted by Sec. 520.13, all common

carriers and conferences shall 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 shall publish, in their automated

tariff systems, rates offered pursuant to independent action by their

members and any open rates offered by their members.

their publication requirements under this part.

(d) Notification. Each common carrier and conference shall notify

BTCL, prior to the commencement of common carrier service pursuant to a

published tariff, of its organization name, organization number, home

office address, name and telephone number of firm's representative, the

location of its tariffs, and the publisher, if any, used to maintain

its tariffs, by submitting Form FMC-1. Any changes to the above

information shall be immediately transmitted to BTCL. 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 listing of the locations of all carrier and

conference tariffs. The Commission will update this list on a periodic

basis.

Sec. 520.4 Tariff contents.

(a) General. Tariffs published pursuant to this part shall:

(1) State the places between which cargo will be carried;

(2) List each classification of cargo in use;

(3) State the level of ocean transportation intermediary, as

defined by section 3(17)(A) of the Act, compensation, if any, to be

paid by a carrier or conference;

(4) State separately each terminal or other charge, privilege, or

facility under the control of the carrier or conference and any rules

or regulations that in any way change, affect, or determine any part of

the aggregate of the rates or charges;

(5) Include sample copies of any bill of lading, contract of

affreightment or other document evidencing the transportation

agreement;

(6) Include copies of any loyalty contract, omitting the shipper's

name;

(7) Contain an organization record, tariff record, and tariff

rules; and

(8) For commodity tariffs, also contain commodity descriptions and

tariff rate items.

(b) Organization record. Common carriers' and conferences'

organization records shall include:

(1) Organization name;

(2) Organization number assigned by the Commission;

(3) Agreement number, where applicable;

(4) Organization type (e.g., ocean common carrier (VOCC),

conference (CONF), non-vessel-operating common carrier (NVOCC) or

agent);

(5) Home office address and telephone number of firm's

representative;

(6) Names and organization numbers of all affiliates to conferences

or agreements, including trade names; and

(7) The publisher, if any, used to maintain the organization's

tariffs.

(1) Organization number and name, including any trade name;

(2) Tariff number;

(3) Tariff title;

(4) Tariff type (e.g., commodity, rules, equipment interchange, or

bill of lading);

(5) Contact person and address;

(6) Default measurement and currency units; and (7) Origination and

destination scope.

(d) Tariff rules. Carriers and conferences shall publish in their

tariffs any rule that affects the application of the tariff. If they

adopt rules addressing the following subject areas, the rule shall use

the following specific titles:

(1) Scope;

(2) Payment of freight charges;

(3) Bills of lading;

(4) Freight forwarder compensation;

(5) Surcharges and arbitraries;

(6) Transshipment;

(7) Shipper requests;

(8) Overcharge claims;

(9) Heavy lift;

(10) Extra length;

(11) Minimum bill of lading charges;

(12) Ad valorem rates;

(13) Hazardous cargo;

(14) Returned cargo;

(15) Equipment interchange agreements;

(16) Seasonal discontinuance;

(17) Project rates;

(18) Terminal handling charges; and

(19) Destination or delivery charges.

(e) Commodity descriptions. (1) For each separate commodity in a

tariff, a distinct 10-digit numeric code shall be used. Tariff

publishers may use any numeric commodity coding pattern, but should use

the U.S. Harmonized Tariff Schedule (``US HTS'') for both the commodity

coding and associated terminology (definitions), to the maximum extent

possible.

(2) The following commodity types shall be preceded by their

associated 2-digit prefixes, with the remaining digits at the

publisher's option:

(i) Mixed commodities--``99';

(ii) Projects--``98'; and

(iii) Non-commodities, e.g., ``cargo, n.o.s.,'' ``general cargo,''

or ``freight-all kinds''--``00''.

(3) Commodity index. (i) Each commodity description created under

this section shall have at least one similar index entry which will

logically represent the commodity within the alphabetical index.

Publishers are encouraged, however, to create multiple entries in the

index for articles with equally valid common use names, such as,

``Sodium Chloride,'' ``Salt, common,'' etc.

(ii) If a commodity description includes two or more commodities,

each included commodity shall be shown in the index.

(iii) Items, such as ``mixed commodities,'' ``projects'' or

``project rates,'' ``n.o.s.'' descriptions, and ``FAK,'' shall be

included in the commodity index.

[[Page 70375]]

(f) Tariff rate items. A tariff rate item (``TRI'') is the single

freight rate in effect for the transportation of cargo under a

specified set of transportation conditions. TRIs must contain the

following:

(1) Brief commodity description;

(2) TRI number;

(3) Publication date;

(4) Effective date;

(5) Origin and destination locations or location groups;

(6) Rate;

(7) Rate basis;

(8) Service code; and

(9) Via port or port group if origin and/or destinations are not

port/port group.

(g) Location groups. In the primary tariff, or in a governing

tariff, the publisher shall define and create groups of cities, states,

provinces and countries (e.g., location groups) or groups of ports

(e.g., port groups), which may 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.

(h) Inland rate tables. If a carrier or conference desires to

provide intermodal transportation to or from named points/postal

regions at combination rates, it shall clearly and accurately set forth

the applicable charges in an ``Inland Rate Tables'' section. An inland

rate table may be constructed to provide an inland distance which is

applied to a per mile rate to calculate the inland rate.

(i) Shipper requests. Conference tariffs shall contain clear and

complete instructions, in accordance with the agreement's provisions,

stating where and by what method shippers may file requests and

complaints and how they may engage in consultation pursuant to section

5(b)(6) of the Act, together with a sample rate request form or a

description of the information necessary for processing the request or

complaint.

(j) Inland divisions. Common carriers are not required to state

separately or otherwise reveal in tariffs the inland division of a

through rate.

Sec. 520.5 Standard tariff terminology.

(a) Approved codes. The Standard Terminology Appendix provides the

existing Commission approved codes which shall be used in tariffs.

These approved codes for rate bases, container sizes, service, etc.,

and the approved units for weight, measure and distance, provide a

standard terminology baseline for tariffs and facilitate retriever

efficiency. The Commission will consider additions to the Appendix on a

case-by-case basis and publish changes as they are approved on its

website.

(b) Geographic names. Tariffs shall only employ locations (points)

that are valid, published locations in the National Imagery and Mapping

Agency (``NIMA'') gazetteer. Only ports published or approved for

publication in the World Port Index (Pub. No. 150) shall be used in

tariffs. A port must have a NIMA gazetteer point to be valid.

Sec. 520.6 Retrieval of information.

(a) General. Tariffs shall present retrievers with a tariff

selection option and/or the capability to select an object group (e.g.,

rules, location groups, etc.).

(b) Search capability. Tariffs shall provide the capability to

search for a commodity and an associated rate within a commodity tariff

by text search and by number.

(1) Commodity searches. (i) A text search feature shall allow

``non-case sensitive'' text searches of commodity descriptions. Text

search matches (hits) should result in a commodity or commodity index

list.

(ii) A commodity number search shall allow number searches using

the first two (chapter), four (heading), eight (subheading) or all ten

numbers of the commodity description number.

(2) Rate searches. A direct rate search function shall be provided

whereby the retriever may enter all fourteen numbers for access to a

specific TRI.

commodity from a commodity list, commodity index or a direct commodity

number search shall display the commodity description and provide an

option for a TRI display or a TRI list if multiple TRIs are in effect

for the commodity on the retriever-entered access date.

(d) Object groups. Retriever selection of a specific object group

shall result in a list of the objects within the group or present a

search mechanism to allow location of an object or object within the

group. For example, selection of the rules object group would present a

list of the rules. For rules, a ``non-case sensitive'' text search

capability shall be provided to locate rules that contain specific

terms or phrases. Selection of the commodities object group shall allow

for text and commodity number search capability.

(e) Basic ocean freight. The minimum rate calculation capability

for tariffs shall be a calculated basic ocean freight (``BOF'') (to

include any adjustments to the BOF and inland rates for combination

rates) and presentation of a list of all assessorial charges, by rule

number and charge title, that apply for the retriever-entered shipment

parameters.

(f) Displays. All displays of individual tariff matter shall

include the publication date, effective date, amendment code (as

contained in Appendix A to this part) and object name or number. When

applicable, a thru date or expiration date shall also be displayed. Use

of ``S'' as an amendment code shall be accompanied by a Commission

issued special use number.

Sec. 520.7 Tariff limitations.

(a) General. Tariffs published pursuant to this part shall:

(1) Be clear and definite;

(2) Use English as the primary textual language;

(3) Not contain cross-references to any other tariffs, except a

tariff of general applicability maintained by that same carrier or

conference; and

(4) Not duplicate or conflict with any other tariff publication.

(b) Notice of cancellation. Carriers and conferences shall inform

BTCL, in writing, whenever a tariff is canceled and the effective date

of that cancellation.

any given shipment shall be those in effect on the date the cargo is

received by the common carrier or its agent including originating

carriers in the case of rates for through transportation.

(d) Minimum quantity rates. When two or more TRIs are stated for

the same commodity over the same route and under similar conditions,

and the application is dependent upon the quantity of the commodity

shipped, the total freight charges assessed against the shipment may

not exceed the total charges computed for a larger quantity, if the TRI

specifying a required minimum quantity (either weight or measurement;

per container or in containers) will be applicable to the contents of

the container(s), and if the minimum set forth is met or exceeded. At

the shipper's option, a quantity less than the minimum level may be

freighted at the lower TRI if the weight or measurement declared for

rating purposes is increased to the minimum level.

(e) Green salted hides. The shipping weight for green salted hides

shall be either a scale weight or a scale weight minus a deduction,

which amount and method of computation are specified in the commodity

description. The shipper must furnish the carrier a weight certificate

or dock receipt from an inland common carrier for each shipment at or

before the time the

[[Page 70376]]

shipment is tendered for ocean transportation.

(f) Conference situations. (1) New members of a conference shall

cancel any independent tariffs applicable to the trades served by the

conference, subject to paragraph (f)(2)(ii) of this section. Admission

to the conference may be effective on the date notice is published in

the conference tariff.

(2) Cancellation of an independent tariff requires 30 days' notice

if:

(i) The carrier is a controlled carrier, or

(ii) The addition of the carrier to the conference results in a

rate change from the independent tariff which causes an increase in

costs to a shipper.

(g) Overcharge claims. (1) No tariff may limit the filing of

overcharge claims with a common carrier to a period of less than three

years from the accrual of the cause of action.

(2) The acceptance of any overcharge claim may not be conditioned

upon the payment of a fee or charge.

(3) No tariff may 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) Returned cargo. When a carrier or conference offers the return

shipment of refused, damaged or rejected shipments, or exhibits at

trade fairs, shows or expositions, to port of origin at the TRI

assessed on the original movement, and such TRI is lower than the

prevailing TRI:

(1) The return shipment must occur within one year;

(2) The return movement must be made over the line of the same

common carrier performing the original movement, except in the use of a

conference tariff, where return may be made by any member line when the

original shipment was carried under the conference tariff; and

(3) A copy of the original bill of lading showing the rate assessed

must be presented to the return common carrier.

Sec. 520.8 Effective dates.

(a) General. (1) No new or initial rate, or change in an existing

rate, that results in an increased cost to a shipper may become

effective earlier than 30 calendar days after publication.

(2) An amendment which deletes a specific commodity and applicable

rate from a tariff, thereby resulting in a higher ``cargo n.o.s.'' or

similar general cargo rate, is a rate increase requiring a 30-day

notice period.

(3) Rates for the transportation of cargo for the U.S. Department

of Defense may be effective upon publication.

(4) Changes in rate charges, rules, regulations or other tariff

provisions resulting in a decrease in cost to a shipper may become

effective upon publication.

(b) Amendments. The following amendments may take effect upon

publication:

(1) Those resulting in no change in cost to a shipper;

(2) The canceling of a tariff due to cessation of all service by

the carrier between the ports or points covered by the tariff;

(3) The addition of a port or point to a previously existing origin

or destination grouping; or

(4) Changes in charges for terminal services, canal tolls,

additional charges, or other provisions not under the control of the

common carriers or conferences, which merely acts as a collection agent

for such charges and the agency making such changes does so without

notifying the tariff owner.

carriers shall be governed by the procedures set forth in part 565 of

this chapter.

Sec. 520.9 Access to tariffs.

(a) Methods to access. Carriers and conferences shall provide

access to their published tariffs, 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.

(b) Dial-up connection via PSTN. (1) This connection option

requires that tariffs 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 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.

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 URL Internet address (e.g., telnet://tariffsrus or telnet://

1.2.3.4), for Telnet session access over the Internet.

(2) Carriers or conferences shall ensure that their Internet

service providers provide static Internet addresses.

(d) Commission access. Commission telecommunications access to

systems must include connectivity via a dial-up connection over PSTNs

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 tariff initiated by the FMC.

(e) Limitations. (1) Tariffs must be made available to any person

without time, quantity, or other limitations.

(2) Carriers are not required to provide remote terminals for

access under this section.

(3) Carriers and conferences may assess a reasonable fee for access

to their tariff publication systems and such fees shall not be

discriminatory.

(4) Tariff publication systems shall provide user instructions for

access to tariff information.

(f) Federal agencies. Carriers and conferences may not assess any

access charges against the Commission or any other Federal agency.

(g) User identifications. Carriers and conferences shall provide

the Commission with the documentation it requires and the number of

user identifications and passwords it requests to facilitate the

Commission's access to their systems.

Sec. 520.10 Integrity of Tariffs.

(a) Historical data. Carriers and conferences shall maintain the

data in their tariff publication systems for a period of 5 years from

the date any information is superseded, canceled or withdraws, and

shall provide on-line access to such data.

(b) Access date capability. Each tariff shall 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 shall also apply to the alignment of tariff

objects for any governing tariffs.

published tariff systems and will prohibit the use of any system that

fails to meet the requirements of this part.

[[Page 70377]]

(d) Access to systems. Carriers and conferences shall provide the

Commission reasonable access to their automated systems and records in

order to conduct reviews.

(e) Certification. Before a tariff becomes effective, carriers and

conferences shall provide BTCL with a written certification by an

officer or executive that all information contained in their tariff

publication is true and accurate and that no unlawful alterations will

be permitted.

Sec. 520.11 Non-vessel-operating common carriers.

(a) Financial responsibility. An ocean transportation intermediary

that operates as a non-vessel-operating common carrier shall 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 the 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 shall

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 shall further state

that in any instance in which the designated legal agent cannot be

served because of death, disability or unavailability, the Secretary,

FMC will be deemed to be its legal agent for service of process.

in their tariffs:

(i) If an NVOCC does not tender cargo for co-loading, this shall be

noted in its tariff.

(ii) 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 shall be noted in the

tariff.

(iii) If two NVOCCs enter into a co-loading arrangement which

results in a shipper-to-carrier relationship, the tendering NVOCC shall

describe its co-loading practices and specify its responsibility to pay

any charges for the transportation of the cargo. A shipper-to-carrier

relationship shall be presumed to exist where the receiving NVOCC

issues a bill of lading to the tendering NVOCC for carriage of the co-

loaded cargo.

(2) Documentation requirements. 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.

(3) Co-loading rates. No NVOCC may offer special co-loading rates

for the exclusive use of other NVOCCs. If cargo is accepted by an NVOCC

from another NVOCC which tenders that cargo in the capacity of a

shipper, it must be rated and carried under tariff provisions which are

available to all shippers.

Sec. 520.12 Time/volume rates.

(a) General. Common carriers or conferences may publish in their

tariffs rates which are conditioned upon the receipt of a specified

aggregate volume of cargo or aggregate freight revenue over a specified

period of time.

(b) Publication requirements. (1) All rates, charges,

classifications rules and practices concerning time/volume rates must

be set forth in the carrier's or conference's tariff.

(2) The tariff shall identify:

(i) The shipment records that will be maintained to support the

rate; and

(ii) The method to be used by shippers giving notice of their

intention to use a time/volume rate prior to tendering any shipments

under the time/volume arrangement.

shipper, it shall remain in effect for the time specified, without

amendment. If no shipper gives notice within 30 days of publication,

the time/volume rate may be canceled.

(d) Records. Shipper notices and shipment records supporting a

time/volume rate shall be maintained by the offering carrier or

conference for at least five years after a shipper's use of a time/

volume rate has ended.

(e) Liquidated damages. Time/volume rates may not impose or attempt

to impose liquidated damages on any shipper that moves cargo under the

rate.

Sec. 520.13 Exemptions.

(a) General. Exemptions from the requirements of this part are

governed by section 16 of the Act and Rule 67 of the Commission's rules

of practice and procedure, Sec. 502.67 of this chapter.

(b) Services. The following services are exempt from the

requirements of this part:

(1) Equipment interchange agreements. Equipment-interchange

agreements between common carriers subject to this part and inland

carriers, where such agreements are not referred to in the carriers'

tariffs and do not affect the tariff rates, charges or practices of the

carriers.

(2) Controlled carriers in foreign commerce. A controlled common

carrier shall be exempt from the provisions of this part exclusively

applicable to controlled carriers when:

(i) The vessels of the controlling state are entitled by a treaty

of the United States to receive national or most-favored-nation

treatment; or

(ii) the controlled carrier operates in a trade served exclusively

by controlled carriers.

(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 the Act and the rules of this part, where:

(i) The cargo is moving between a point in a foreign country or a

non-contiguous State, territory, or possession and a point in the

United States;

(ii) The transportation by barge between points in the United

States is furnished by a terminal operator as a service substitute in

lieu of a direct vessel call by the common carrier by water

transporting the containers or containerized cargo under a through bill

of lading; and

(iii) Such terminal operator is a Pacific Slope State,

municipality, or other public body or agency subject to the

jurisdiction of the Commission, and the only one furnishing the

particular circumscribed barge service in question as of January 2,

1975.

requirements of this part:

(1) Bulk cargo, forest products, etc. This part does not apply to

bulk cargo, forest products, recycled metal scrap, new assembled

automobiles, waste paper and paper waste. Carriers or conferences which

voluntarily publish tariff provisions covering otherwise exempt

transportation thereby subject themselves to the requirements of this

part, including the requirement to adhere to the tariff provisions.

[[Page 70378]]

(2) Mail in foreign commerce. Transportation of mail between the

United States and foreign countries.

(3) Used military household goods. Transportation of used military

household goods and personal effects by ocean transportation

intermediaries.

(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 Transportation Management

Command (``MTMC'') and published in a universal service contract. An

exact copy of the universal service contract, including any amendments

thereto, shall be filed in paper format with the Commission as soon as

it becomes available.

(5) Used household goods--General Services Administration.

Transportation of used military household goods and personal effects

shipped by federal civilian executive agencies under the International

Household Goods Program administered by the General Services

Administration.

(d) Services involving foreign countries. The following

transportation services involving foreign countries are not subject to

the requirements of this part:

(1) Between foreign countries. This part does not apply to

transportation of cargo between foreign countries, including that which

is transshipped from one ocean common carrier to another (or between

vessels of the same common carrier) at a U.S. port or transferred

between an ocean common carrier and another transportation mode at a

U.S. port for overland carriage through the United States, where the

ocean common carrier accepts custody of the cargo in a foreign country

and issues a through bill of lading covering its transportation to a

foreign point of destination.

(2) Between Canada and U.S. The following services are exempt from

the filing requirements of the Act and the rules of this part:

(i) Prince Rupert and Alaska.--(A) Vehicles. Transportation by

vessels operated by the State of Alaska between Prince Rupert, Canada

and ports in southeastern Alaska, if all the following conditions are

met:

(1) Carriage of property is limited to vehicles;

(2) Tolls levied for vehicles are based solely on space utilized

rather than the weight or contents of the vehicle and are the same

whether the vehicle is loaded or empty;

(3) The vessel operator does not move the vehicles on or off the

ship; and

(4) The common carrier does not participate in any joint rate

establishing through routes or in any other type of agreement with any

other common carrier.

(B) Passengers. Transportation of passengers, commercial buses

carrying passengers, personal vehicles and personal effects by vessels

operated by the State of Alaska between Seattle, Washington and Prince

Rupert, Canada, only if such vehicles and personal effects are the

accompanying personal property of the passengers and are not

transported for the purpose of sale.

(ii) British Columbia and Puget Sound Ports; rail cars.--(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, only if the cargo does not originate in or is not destined to

foreign countries other than Canada, but only if:

(1) The through rates are filed with the Surface Transportation

Board and/or the Canadian Transport Commission; and

(2) Certified copies of the rate divisions and of all agreements,

arrangements or concurrences, entered into in connection with the

transportation of such cargo, are filed with the Commission within 30

days of the effectiveness of such rate divisions, agreements,

arrangements or concurrences.

(B) Bulk; port-to-port. Transportation by water of cargo moving in

bulk without mark or count in rail cars on a local port-to-port rate

basis between ports in British Columbia, Canada and United States ports

on Puget Sound, only if the rates charged for any particular bulk type

commodity on any one sailing are identical for all shippers, except

that:

(1) This exemption shall 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

Act.

(iii) Incan Superior, Ltd. Transportation by Incan Superior, Ltd.

of cargo moving in railroad cars between Thunder Bay, Ontario, and

Superior, Wisconsin, only if the cargo does not originate in or is not

destined to foreign countries other than Canada, and if:

(A) The through rates are filed with the Surface Transportation

Board and/or the Canadian Transport Commission; and

(B) Certified copies of the rate divisions and all agreements,

arrangements or concurrences entered into in connection with the

transportation of such cargo are filed with the Commission within 30

days of the effectiveness of such rate divisions, agreements,

arrangements or concurrences.

Sec. 520.14 Special permission.

(a) General. Section 8(d) of the Act 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. Section 9(c) of the Act authorizes 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

but every application based thereon must plainly specify the error and

present clear evidence of its existence, together with a full statement

of the attending circumstances, and shall be submitted with reasonable

promptness after publishing the defective tariff material.

establish rate increases or decreases on less than statutory notice or

for waiver of the provisions of this part, shall be made by the common

carrier, conference or agent for publishing. Every such application

shall be submitted to BTCL and be accompanied by a filing fee of $179.

(2) Applications for special permission shall be made only by

letter, except that in emergency situations, application may be made by

telephone or facsimile if the communication is promptly followed by a

letter and the filing fee.

(3) Applications for special permission shall contain the following

information:

(i) Organization name, number and trade name of the conference or

carrier;

(ii) Tariff number and title; and

(iii) The rate, commodity, or rules related to the application, and

the special circumstances which the applicant believes constitute good

cause to depart from the requirements of this part or to warrant a

tariff change upon less than the statutory notice period.

(d) Implementation. The authority granted by the Commission shall

be used in its entirety, including the prompt publishing of the

material for which permission was requested. Applicants shall use the

special case number assigned by the Commission with the symbol ``S''.

[[Page 70379]]

Appendix A--Standard Terminology and Codes

I. Publishing/Amendment Type Codes

Code Definition

A Increase

C Change resulting in neither increase nor decrease in rate or

charges

E Expiration (also use ``A'' if the deletion results in the

application of a higher ``cargo, n.o.s.'' or similar rate)

I New or initial matter

K Rate or change filed by a controlled common carrier member of a

conference under independent action

M Transportation of U.S. Department of Defense cargo by American-

flag common carriers.

P Addition of a port or point

R Reduction.

S Special Case matter filed pursuant to Special Permission, Special

Docket or other Commission direction, including filing of tariff

data after suspension, such as for controlled carriers. Requires

``Special Case Number.''

T Terminal Rates, charges or provisions or canal tolls over which

the carrier has no control.

W Withdrawal of an erroneous publication on the same publication

date

X Exemption for controlled carrier data in trades served

exclusively by controlled carriers or by controlled carriers of

states receiving most-favored-nation treatment.

II. Valid Unit Codes

Weight Units

Kilograms...........................................................KGS

1000 Kgs (Metric Ton)................................................KT

Pounds..............................................................LBS

Long Ton (2240 LBS)..................................................LT

Short Ton (2000 LBS).................................................ST

Volume Units

Cubic meter.........................................................CBM

Cubic feet..........................................................CFT

Length Units

Centimeters..........................................................CM

Feet.................................................................FT

Inches...............................................................IN

Meters................................................................M

Measure Board Feet

Thousand Board Feet.................................................MBF

Distance Units

Kilometers...........................................................KM

Miles................................................................MI

Rate Basis

Ad Valorem...........................................................AV

Each.................................................................EA

Lump Sum.............................................................LS

Measure...............................................................M

Thousand Board Feet.................................................MBF

Per Container........................................................PC

Weight................................................................W

Weight/Measure.......................................................WM

Container Size Codes

Not Applicable......................................................N/A

Less Than Load......................................................LTL

10FT Any Height.....................................................10X