Marine Terminal Operator Schedules

FEDERAL MARITIME COMMISSION

46 CFR Part 525

[Docket No. 98-27]

Marine Terminal Operator Schedules

AGENCY: Federal Maritime Commission.

ACTION: Final rule.

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SUMMARY: The Federal Maritime Commission adds 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: This rule is effective May 1, 1999.

FOR FURTHER INFORMATION CONTACT:

Austin Schmitt, Director, Bureau of Tariffs, Certification and

Licensing, Federal Maritime Commission, 800 North Capitol St., NW, Room

940, Washington, DC 20573-0001, (202) 523-5796

Thomas Panebianco, General Counsel, Federal Maritime Commission, 800

North Capitol St., NW, Room 1018, Washington, DC 20573-0001, (202) 523-

5740

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SUPPLEMENTARY INFORMATION: On December 17, 1998, the Federal Maritime

Commission (``Commission'') published a proposed rule to add new

regulations, 46 CFR part 525, to implement changes made by the Ocean

Shipping Reform Act of 1998 (``OSRA''), Pub. L. 105-258, 112 Stat.

1902, and the Coast Guard Authorization Act of 1998, section 424 of

Pub. L. 105-383, 112 Stat. 3411, to sections 3(15), 8(f), 8(g) and

10(d) of the Shipping Act of 1984 (``1984 Act''), 46 U.S.C. app.

section 1701 et seq., relating to marine terminal operators

(``MTO(s)''). 63 FR 69603-69606, December 17, 1998. The proposed rule

sets forth regulations for the publication of terminal schedules by

MTOs. Interested parties were given the opportunity to submit comments

on the proposed rule. The Commission received four comments, from (1)

the Port of Philadelphia Marine Terminal Association, Inc. (``PMTA''),

(2) the National Association of Waterfront Employers (``NAWE''), (3)

the Port of Palm Beach District and Tampa Port Authority (``Ports of

Palm Beach and Tampa'') jointly, and (4) American President Lines, Ltd.

and APL Co. Pte Ltd. (``APL'') jointly.

Section 525.1 Purpose and Scope

Section 515.1(c) sets forth an extensive list of definitions

traditionally used by the Commission and the shipping industry in their

day to day business. In particular Sec. 525.1(c)(19) defines the term

``terminal services,'' which includes a list of terms that are

themselves defined within the definition section. APL contends that the

definition of ``terminal services'' itself should be revised, as well

as several of the terms included within that definition because they do

not ``seem to be used in the proposed rule in an operative way.'' APL

at 1-2.

APL argues that the definition of ``terminal services'' should not

include the terms ``wharf demurrage'' and ``wharfage,'' because they

are not services but rather are charges for services. Id. APL further

contends that the term ``dockage'' in that definition should be changed

to ``berthing'' to more correctly describe the service provided for

that charge. Id. Finally, the terms ``terminal storage'' and ``wharf

demurrage'' should be revised, APL avers, because the service referred

to in each is the same. Id.

The Commission has developed these definitions in conjunction with

the shipping industry over time, and has consistently used them in

other rulemakings. The definitions set forth in the rule are the

traditional usage of such terms, not the operative usage as APL

desires. Moreover, the rule allows MTOs to develop independent

definitions of the terms included in the rule and any other term they

wish to use, as long as those definitions are set forth in their

terminal schedules and correlated to the definitions in the rule (see

Sec. 525.1(c)(19)). As such, the Commission declines to delete or

revise any of the definitions requested by APL.

The definition of ``bulk cargo,'' Sec. 525.1(c)(3), is revised to

reflect the definition currently in use in 46 CFR part 514 and to

correlate with the definition in new 46 CFR part 520, Carrier Automated

Tariff Systems.

While the rule is straightforward in setting forth the regulations

for the publication of terminal schedules of all marine terminal

operators, in light of the comment discussed below regarding

Sec. 525.2, the Commission is adding the following sentence to the end

of subsection (c)(13): ``For the purposes of this part, marine terminal

operator includes conferences of marine terminal operators.''

Section 525.2 Terminal Schedules

PMTA expresses concern regarding the interpretation of part 525 and

proposed 46 CFR part 535, Ocean Common Carrier and Marine Terminal

Operator Agreements. It is seeking assurance that (1) part 535 applies

only to agreements of ocean common carriers and MTOs, and to ocean

common carrier tariffs, but not to ``[MTO] tariffs which are redesigned

as `schedules;''' and (2) part 525 applies to all MTO schedules

``whether the [MTO] is operating under an `agreement' . . . or not.''

PTMA at 2. PMTA correctly interprets the scope of part 525 to cover

both individual MTO schedules and MTO conference schedules. Regulations

relating to the agreements of marine terminal operators (other than the

publication of MTO schedules) are located at part 535 (see

Sec. 525.2(c)).

Section 525.3 Availability of Marine Terminal Operator Schedules

Proposed Sec. 525.3(a)(2) requires MTOs who elect to make their

schedules available to the public to make them available in electronic

form. In the proposed rule the Commission specifically sought comments

on whether there was a compelling reason for or against allowing MTOs

to publish their terminal schedules in paper form. The Ports of Palm

Beach and Tampa agree that MTOs should be required to publish their

terminal schedules electronically; however, they argue that they should

be allowed to publish their terminal schedules in a parallel paper

form. Ports of Palm Beach and Tampa at 2-3. The Ports of Palm Beach and

Tampa contend that electronic format is not universally accepted and,

in fact, ``many of the companies and individuals who use [the Ports of

Palm Beach and Tampa's] tariffs are not, at present, equipped to obtain

access to an electronic form of tariff.'' Id. at 3. Furthermore, the

Ports of Palm Beach and Tampa argue that continued use of paper

schedules is vital because internal staff, who do not have access to

computers, need to have hard copies of the terminal schedules in order

to inspect them. Id.

The Ports of Palm Beach and Tampa suggest that an MTO be able to

make its terminal schedules available in electronic and paper form,

with the electronic form being the binding form in the event that there

is any discrepancy between the forms. Id. at 4. The Ports of Palm Beach

and Tampa would add language to the rule to that effect, as well as

language providing that paper copies of those schedules be available to

the public upon request at a reasonable nondiscriminatory fee. Id.

The Commission recognizes that there may be entities in the

shipping industry who are unable to access electronic terminal

schedules. The rule, as written, does not prohibit an MTO from

maintaining parallel terminal schedules in paper form for its own

purposes or the purposes of those entities. However, it is unnecessary

to incorporate the Ports of Palm Beach and Tampa's suggested language

into the final rule, since electronic schedules will be the required

method of publication and as such will govern in the event of a

conflict with any parallel paper form of terminal schedules which an

MTO may choose to maintain and disseminate.

Proposed Sec. 525.3(f) requires all MTOs subject to Commission

jurisdiction to file Form FMC-1, a form by which MTOs identify

themselves and the location of their terminal schedules, whether or not

they make their terminal schedules available to the public. The

Commission specifically requested comments on whether Form FMC-1 should

be filed in electronic format on the Commission's website or in paper

format. Furthermore, the rule proposed the Commission's publication, on

its website, of the location of any terminal schedule made available to

the public, and comments were requested.

NAWE, the only commenter on this subsection, believes that Form

FMC-1 should be filed electronically since ``virtually every terminal

operator has the means to file electronically.'' NAWE at 1. NAWE

suggests, however, that the Commission acknowledge receipt of an FMC-1

form by electronic notification

[[Page 9283]]

to the MTO. Id. In light of this comment and the lack of any other

comments on this issue, the Commission adds language to the final rule

requiring all MTOs to file Form FMC-1 electronically via the

Commission's website at www.fmc.gov.\1\ To the extent any MTO is unable

to file pursuant to this process, it can seek a waiver from the

Director, Bureau of Tariffs, Certification and Licensing (``BTCL''), to

file by alternate means. The Commission, however, will not provide for

electronic acknowledgment of the receipt of Form FMC-1. This Commission

does not currently acknowledge receipt of other types of registration

forms, and, in any event, MTOs and other filers of Form FMC-1 will be

free to call BTCL, if they are concerned about the Commission's receipt

of their form.

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\1\ Form FMC-1 will be operational by April 1, 1999. This

provides sufficient time for MTOs to comply by May 1, 1999.

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NAWE also supports the Commission's proposal to publish a list, on

its website, of the location of terminal schedules that are made

available to the public. Id. at 2. This list would not, however, be so

inclusive as to consist of all MTOs who file a Form FMC-1 with the

Commission, contrary to NAWE's interpretation. See Id. While every MTO

that is subject to Commission jurisdiction must file a Form FMC-1 with

the Commission, not all of those MTOs will necessarily be making their

terminal schedules available to the public. Therefore, the Commission's

website will contain a list of MTOs who make their terminal schedules

available to the public and the location where those schedules can be

found. The Commission will not maintain on its website a list of those

terminal schedules that are not made available to the public nor a list

of the names of those MTOs.

In this connection, NAWE argues that MTOs operating separate

terminals in different states should be free to file FMC-1 forms on a

terminal by terminal basis and should be free to withdraw their FMC-1

forms on the same basis. Id. at 2. NAWE incorrectly interprets this

section of the rule as being more intrusive and less flexible than it

is. Again, the rule requires only that all MTOs subject to Commission

jurisdiction file a Form FMC-1 so that the Commission can meet its

regulatory mandate, regardless of the number of separate terminals

operated. An MTO may amend the information published at its electronic

location, at its discretion, without notifying the Commission. The only

time an MTO needs to notify the Commission is if it changes any

information filed in its FMC-1 form, such as its home office address,

its telephone number, or its decision to cease or begin making terminal

schedules available to the public through an electronic location.

Finally, NAWE is concerned with the language in Sec. 525.3(f) that

requires MTOs to file a Form FMC-1 with the Commission prior to the

commencement of terminal operations because ``it would appear to deny

an MTO that does not choose to file an FMC-1 for a particular terminal

prior to the May 1, 1999 effective date of the Rule, the ability to

file an FMC-1 form after this date while conducting ongoing

operations.'' Id. at 2. Again, all MTOs subject to Commission

jurisdiction must file a Form FMC-1 with the Commission. Thus, all MTOs

which will be engaged in operations subject to the Commission's

jurisdiction upon the effective date of this rule must file a Form FMC-

1 prior to May 1, 1999. Only those MTOs who begin operations that would

be subject to Commission jurisdiction after the May 1, 1999 deadline

would file a From FMC-1 after that date. The rule therefore requires

that in order to properly regulate these entities the Commission must

be notified of their existence before they begin operations subject to

the Commission's jurisdiction, whether or not they plan to make their

terminal schedules available to the public. The rule correctly reflects

this requirement.

Except for the changes reflected here, proposed 46 CFR part 525

will be carried forward as a final rule.

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et

seq., the Chairman of the Federal Maritime Commission has certified to

the Chief Counsel for Advocacy, Small Business Administration, that the

rule will not have a significant impact on a substantial number of

small entities. In its Notice of Proposed Rulemaking, the Commission

stated its intention to certify this rulemaking because the proposed

changes affect only marine terminal operators, entities the Commission

has determined do not come under the programs and policies mandated by

the Small Business Regulatory Enforcement Fairness Act. No comments

were received in this rulemaking process touching upon the issue.

Therefore, the certification is continued.

This regulatory action is not a ``major rule'' under 5 U.S.C.

804(2).

The Commission has received Office of Management and Budget

approval for this collection of information pursuant to the Paperwork

Reduction Act of 1995, as amended. In accordance with that act,

agencies are required to display a currently valid control number. In

this regard, the valid control number for this collection of

information is 3072-0061.

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 adds 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.

525.4 OMB Control number assigned pursuant to the Paperwork

Reduction Act.

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, in a loose unpackaged form, having homogenous

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.

(3) Checking means the service of counting and checking cargo

against appropriate documents for the account

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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 engineering 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. For the purposes of this part, marine terminal

operator includes conferences of marine terminal operators.

(14) Organization name means an entity's name on file with the

Commission and for which the Commission assigns an organizational

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 a 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 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 a wharf. Wharfage is solely

the charge for use of a 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

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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 electronically submitting Form FMC-1 via the Commission's

website at www.fmc.gov. Any changes to the above information shall be

immediately transmitted to BTCL. The Commission will publish a list on

its website 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 its

terminal facilities.

Sec. 525.4 OMB control number assigned pursuant to the Paperwork

Reduction Act.

The Commission has received Office of Management and Budget

approval for this collection of information pursuant to the Paperwork

Reduction Act of 1995, as amended. In accordance with that Act,

agencies are required to display a currently valid control number. In

this regard, the valid control number for this collection of

information is 3072-0061.

By the Commission

Bryant L. VanBrakle,

Secretary.

[FR Doc. 99-4585 Filed 2-24-99; 8:45 am]

BILLING CODE 6730-01-M