Carrier Automated Tariff Systems

SUMMARY: The Federal Maritime Commission adds new regulations

establishing the requirements for carrier automated tariff systems in

accordance with the Shipping Act of 1984, as modified by Ocean Shipping

Reform Act of 1998 and section 424 of the Coast Guard Authorization Act

of 1998. As part of these rules, we are adopting as an interim final

rule the definition of motor vehicle which was not included in the

proposed rule.

DATES: This rule is effective May 1, 1999.

Comments on the interim final rule portion are due March 23, 1999.

ADDRESSES:Send comments on interim final rule portion to: Bryant L.

VanBrakle, Secretary, Federal Maritime Commission, 800 North Capitol

Street, N.W., Room 1046, Washington, D.C. 20573, (202) 523-5725.

FOR FURTHER INFORMATION CONTACT:

Austin L. Schmitt, Director, Bureau of Tariffs, Certification and

Licensing, Federal Maritime Commission, 800 North Capitol Street, N.W.,

Room 940, Washington, D.C. 20573, (202) 523-5796.

Thomas Panebianco, General Counsel, Federal Maritime Commission, 800

North Capitol Street, N.W., Room 1018, Washington, D.C. 20573, (202)

523-5740.

SUPPLEMENTARY INFORMATION: On December 21, 1998, the Federal Maritime

Commission (``FMC'' or ``Commission'') published a Notice of Proposed

Rulemaking in the Federal Register (63 FR 70368), proposing new

regulations to implement the changes made in the area of common carrier

tariffs by enactment of the Ocean Shipping Reform Act of 1998

(``OSRA''), Public Law 105-258, 112 Stat. 1902. OSRA amended the

Shipping Act of 1984 (``1984 Act''), 46 U.S.C. app. Sec. 1702 et seq.,

in several significant respects. Previously, common carriers and

conferences had to file their tariffs (i.e., the schedules of their

rates and charges) with the FMC's 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 OSRA). 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 received twenty-two comments on the Proposed Rule.

Commenters were: Cargo Brokers International, Inc. (``CBI''); Household

Goods Forwarders Association of America, Inc. (``HHGFAA''); China Ocean

Shipping (Group) Company (``COSCO''); Fruit Shippers Ltd.; Pacific

Coast Tariff Bureau (``PCTB''); Japan-United States Eastbound Freight

Conference (``JUSEFC''); Council of European & Japanese National

Shipowners' Associations (``CENSA''); Trans-Atlantic Conference

Agreement (``TACA''); North American Van Lines, Inc. (``NAI''); Matson

Navigation Company, Inc. (``Matson''); P&O Nedlloyd Limited (``P&O'');

National Industrial Transportation League (``NITL''); Bicycle Shippers'

Association, Inc. (``BSA''); Effective Tariff Management Corporation

(``ETM''); Ocean Carrier Working Group Agreement (``OCWG''); National

Association of Transportation Intermediaries (``NATI''); National

Customs Brokers & Forwarders Association of America, Inc. (``NCBFAA'');

American International Freight Association & Transportation

Intermediaries Association (``AIFA''); Plus Integration and World

Tariff Services (``WTS''); The Associated India/Pakistan Conferences

(``India Conferences''); Direct Container Line, Inc. (``DCL''); and

Transportation Tariff Publishers, Inc. (``TTP'').

General Comments

As a general matter, many commenters believe that the proposed rule

goes far beyond what is necessary to implement the prescriptions of

OSRA. CENSA contends that the rule imposes ``form and manner''

requirements, rather than requirements concerning the ``accessibility

and accuracy'' of tariffs. It believes that the rule will result in

elaborate and costly systems not warranted by the limited role tariffs

will play in the post-OSRA era and states that how a carrier chooses to

present its rates and terms of service should be dictated by market

demands and customer requirements. NAI likewise believes the proposed

rule far exceeds any requirements relating to accuracy and

accessibility and suggests that the Commission eliminate all portions

of the rule relating to tariff contents and format. Matson contends

that the cost and complexity of the rule goes beyond what is reasonable

and continues many ATFI requirements.

NITL notes that the Commission's role in overseeing new private

tariff systems has been significantly reduced and submits that the

Commission must eschew ``command and control'' type regulation and

instead rely on broad standards that seek general results. It believes

that a competitive market will achieve the desired result of accuracy

and accessibility.

OCWG also notes that the role of tariffs under OSRA will be reduced

in that the large majority of cargo will move under service contracts.

It contends that the maximum use of tariffs will occur only through a

minimum degree of regulation. OCWG suggests that there are two

components of accessibility: (1) can a user find and gain access to a

particular tariff; and (2) once in a tariff, can the user locate

specific tariff matter? It claims that the Commission's rule largely

perpetuates ATFI, even though many aspects of ATFI have been rendered

obsolete. Lastly, OCWG alleges that carriers will be forced to rely on

outside vendors to design and maintain tariffs and that a system to

meet the proposed requirements would cost $500,000 or more.

The Commission is not insensitive to many of these general concerns

raised by these commenters. It has accordingly kept them in mind while

addressing other, more specific comments in the proposed rule.

Section 520.2 Definitions

``Co-loading''--P&O contends that this definition should include a

provision that when an NVOCC tenders a co-loaded container to an ocean

common carrier it certify that all NVOCCs whose cargoes are co-loaded

have met all license, tariff and bonding requirements. P&O's concerns

are met by Sec. 515.27, which provides that no common carrier (e.g., an

NVOCC) may transport cargo for a shipper known to be an NVOCC unless

the carrier has determined that the NVOCC has a tariff and financial

responsibility required by sections 8 and 19 of the Act.

``Combination rate''--P&O suggests changing this term to ``multi-

factor through rate'' because combination rate is allegedly not a term

in general industry usage. We decline to adopt

[[Page 11219]]

P&O's suggestion, as the term ``combination rate'' has been defined and

is widely used in current tariffs. In light of the fact that many

carriers will simply carry over their current tariffs in their

automated systems, this may not be the appropriate time to change the

term.

``Commodity description''--P&O avers that the definition appears to

require the inclusion of all applicable assessorials, which would

undermine the ability of carriers to apply assessorials by rule without

notation to a specific TRI. ETM also contends that the requirement to

show all assessorials should be removed and that the requirement to

show commodity index entries is also redundant. The Commission has

adopted these suggestions and deleted the references to assessorials

and commodity index entries.

``Common carrier''--Fruit Shippers suggests that this definition

should be amended to include changes made by the Coast Guard

Authorization Act of 1998, Pub. L. 105-383. Inasmuch as the proposed

rule included this change, there is no need to amend this definition in

the final rule.

``Conference''--JUSEFC submits that the current definition of

conference should be retained since it substantially tracks the

definition in the 1984 Act. It further notes that the Commission did

not explain the reasons for the change, thereby making comment on it a

matter of speculation. P&O and OCWG also argue that the definition

should not be revised. The Commission will implement the definition as

proposed to comport with the definitions in parts 530 (service

contracts) and 535 (agreements). In that latter proceeding, the reasons

for proposing such a change were fully explicated.

``Forest products''--PCTB concedes that this definition reflects

Congressional intent. It nonetheless maintains that it needs some

examples or the Harmonized Codes for the new additions. The Commission

declines to adopt this suggestion. Examples or Harmonized Code

references are not provided elsewhere in the definitions, and would not

seem appropriate here.

``Harmonized system''--PCTB and WTS note that this definition only

refers to the codes for imports and that language should be added for

Schedule B, which applies to exports. The Commission agrees and has

modified the definition accordingly.

``Intermodal transportation''--P&O suggests that the word

``through'' be inserted between the words ``continuous'' and

``transportation.'' The Commission has incorporated this change in the

final rule.

``Joint rates''--P&O would change the term to ``joint through

rates'' to properly reflect how the cargo is moving. However, joint

rates involve ocean transportation over combined routes of two or more

common carriers, and could involve combination rates or through rates.

Moreover, the term is currently used widely in tariffs and will likely

be carried over to automated systems. It would also benefit from notice

and comment, and is not, therefore, adopted.

``Local rates''--P&O suggests that this term be changed to ``port

to port rates'' as better describing the service. However, we decline

to adopt this suggestion as port to port rates can be proportional

rates which are based on prior or subsequent movements, contrary to the

specific language of the definition, which states that local rates are

not contingent on prior or subsequent movements.

``Loyalty contract''--ETM contends that this definition should not

be restricted to deferred rebate arrangements, but should also include

special specific rates or discount provisions. However, the definition

in the proposed rule is consistent with the changes in the statutory

definition made by OSRA and will therefore remain unchanged.

``Motor vehicle''--The proposed rule did not contain a definition

for ``motor vehicle.'' However, OSRA's use of this term in section 8(a)

of the 1984 Act may have created some confusion in the industry. The

Commission has thus defined the term to include not only automobiles

but also trucks, vans and other motor vehicles used for the

transportation of passengers and cargo, but does not include equipment

such as farm or road equipment which has wheels but whose primary

purpose is other than transportation. This definition appears

consistent with the discussion in the Senate Report on S. 414. S. Rep.

No. 61, 105th Cong., 1st Sess. 22 (1997). Because this definition was

not included in the proposed rule, however, it will go into effect as

an interim final rule and interested parties will have an opportunity

to comment.

``Ocean common carrier''--PCTB notes that this definition is not

consistent with proposed Secs. 535.104(u) and 530.3(j). WTS also

suggests that the terms should be consistently applied throughout. The

Commission has retained the definition in the proposed rule, but

amended the service contract and agreement rules to achieve

consistency.

``Person''--P&O would like the Commission to make it clear that the

term ``person'' includes not only shippers, forwarders and the FMC, but

ocean common carriers as well. This suggestion does not appear to be

necessary. Ocean common carriers would fit within the ambit of the term

as it is currently defined.

``Single factor rate''--P&O would add a definition of ``single

factor rate'' to read ``the single amount charged by a common carrier

in connection with through transportation involving more than one mode

of service.'' This is essentially what the current definitions of

``through rate'' and ``through transportation'' do and is not,

therefore, necessary.

``Through rate''--P&O would amend this definition to read ``the

total amount charged by a common carrier in connection with multi-

factor or single-factor through transportation.'' This change is

unnecessary given that the Commission is not adopting P&O's other

suggested definitional changes relating to intermodal transportation.

``Thru date''--ETM suggests that this definition should be removed,

because all tariff changes can be accomplished with amendments without

the use of a thru date. While we agree that tariff changes may be

accomplished without the use of thru dates, there may be system reasons

for using them. The term will accordingly remain defined for any

carrier that chooses to use it.

P&O also suggests that definitions for ``demurrage,'' ``detention''

and ``free time'' should be added and suggests the definitions

appearing in the ANERA tariff. These terms presently appear to vary

considerably from carrier to carrier and can apply to either carrier

equipment or the cargo. We believe that they should continue to be

defined in the individual carrier's tariff and are unable to adopt

these suggestions at this time. At a minimum, they would warrant

additional notice and comment.

Section 520.3 Publication Responsibilities

JUSEFC and OCWG both contend that conference members should

continue to have the option of publishing their open rates either in a

conference tariff or their own tariffs. P&O further contends that

individual carriers should be permitted to publish their own

independent action rates and open rates.

Independent action rates are not presently permitted to be

published in individual carrier tariffs, unlike open rates. The

Commission believes that independent action rates should continue to be

published in a common conference tariff. Independent action

[[Page 11220]]

items change frequently and would be difficult to follow if they were

published in several different independent tariffs. Open rates, on the

other hand, are rates for commodities over which a conference has

relinquished ratemaking authority and thus more properly appear in

independent tariffs. The Commission is accordingly amending paragraph

(b) to indicate that conferences ``may'' publish open rates of their

members, and that alternatively, open rates may be published in

individual tariffs of conference members.

COSCO supports the Commission's publication on its website of the

locations of carriers' tariffs. PCTB likewise supports such a listing,

but suggests that the Commission adopt a specific, frequent periodic

basis for updates, e.g., weekly. While the Commission believes that it

may be possible to update this listing on a frequent basis, it is

reluctant to impose any such requirement by rule.

ETM submits that the Commission should clarify that the

notification required by paragraph (d) may be by mail, courier, or

facsimile. It further suggests that Form FMC-1 should appear on the

Commission's website as soon as possible and supports no fee for the

submission of the form. The Commission is amending paragraph (d) to

indicate that Form FMC-1 be submitted electronically via the

Commission's website. The Commission will design an interactive form by

which carriers can submit the requisite information.1 This

approach is consistent with our treatment of marine terminal operator

schedules. To the extent any carrier 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. In

addition, the Commission notes that existing entities operating as

common carriers or conferences may continue to use their current

organization numbers.

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

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

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BSA is concerned that the Commission may not be able to ensure that

carrier tariff homepages are properly updated and the validity of all

common carrier automated tariff systems. It asserts that more

definitive regulations addressing webpage security requirements are

needed to preserve the security and integrity of the tariff system as a

whole. The Commission appreciates these concerns. However, once

carriers have begun to operate under the new requirements, the

Commission will be in a better position to address these issues.

Section 520.4 Tariff Contents

PCTB supports the use of specific titles in paragraph (d) to

identify common rules appearing in most tariffs. It requests

clarification, however, that the Commission is not requiring the

numbering sequence used to display the rule titles in that paragraph.

ETM recommends that the ordering or numbering of the nineteen (19)

items should be at the option of the ``filer.'' WTS asserts that a

significant number of retrievers use standard rule numbers to retrieve

certain rules and contends that rule numbers should be mandated.

On the other hand, JUSEFC maintains that the required 19 rule

titles are rigid and deprive publishers of needed flexibility. It

suggests that a violation could occur from the omission of a single,

non-essential word and that publishers would be prohibited from

separating or consolidating tariff matter. JUSEFC further avers that

tariff publishers are in the best position to determine the most

effective way to present their tariff information. It concludes by

suggesting that tariff titles be recommended rather than mandatory.

JUSEFC's views have merit and, as a result, the Commission is

substantially amending paragraph (d). The nineteen subject areas for

which specific rule titles were required have been deleted. Carriers

simply have to publish any rule that affects the application of their

tariffs, but they are free to use any appropriate titles for their

rules.

NCBFAA states that the decision to encourage the use of the U.S.

Harmonized Tariff Schedule (``HTS'') is very helpful, and promotes

international acceptance of a common language. While supporting the

general content requirements for all tariffs, BSA also strongly

supports the FMC's encouraging the use of the U.S. HTS. DCL, on the

other hand, believes that listing commodities exclusively through the

U.S. HTS would be burdensome for NVOCCs. The Commission continues to

believe that use of the U.S. HTS would be beneficial to trade in

general. The proposed rule did not mandate use of the U.S. HTS. It

simply stated that carriers should use the U.S. HTS ``to the maximum

extent possible.'' However, in view of the comments, the final rule has

been reworded to indicate that, if carriers use numeric codes for

commodities, they are encouraged to use the U.S. HTS.

JUSEFC opposes the requirement in paragraph (e) that commodity

descriptions have a distinct 10-digit numeric code. It considers such a

requirement to be a carryover from ATFI, with no technological

justification, given the wide variety of software allegedly available.

Moreover, it contends that even under ATFI, 10-digit commodity

numbering was not necessary. Matson notes that it does not use a 10-

digit numbering system internally, and argues that it should be able to

use its internal numbering system which interacts with its other

systems. NITL opines that if a tariff uses a numeric code to identify a

commodity, there is no reason to require only a 10-digit code. As long

as a system permits a user to locate covered commodities, NITL sees no

reason for numeric codes at all. AIFA notes that NVOCCs often offer

rates for classes of commodities on a cubic meter basis, and that 10-

digit codes add a needless layer of complexity.

The carrier members of OCWG also oppose 10-digit codes for

commodities. They contend that any numeric code is not an indispensable

requisite for a tariff and that it is unclear how such codes would

assist users in locating specific tariff matter. They further suggest

that very few shippers will know the code, particularly when carriers

are free to use any system they wish.

In light of the above comments, the Commission is deleting the

requirement that a distinct 10-digit numeric code must be used for each

separate commodity in a tariff. Instead, the final rule will state that

numeric codes ``may'' be used, and that publishers are encouraged to

use the U.S. HTS. In addition, the definitions of ``commodity

description number'' and ``TRI number'' in Sec. 520.2 have been

modified to reflect this change.

P&O suggests that the very detailed requirements of what must be

included in a TRI are more detailed and complex than need be. In

particular, it points to item nine (9) in paragraph (f) as being

unclear and raises several questions about it. OCWG further submits

that item two (2) in paragraph (f) should be revised by adding the word

``(optional).'' The Commission has adopted these suggestions in the

final rule. Item 9 has been deleted, item seven (7) combined with item

six (6) (``rate and rate basis'') and item 2 has been modified to point

out that TRI numbers are optional.

COSCO has requested that the Commission clarify how

Sec. 520.4(e)(1) (commodity descriptions) would apply to a class rather

than a commodity tariff. The Commission notes that this issue was not

addressed under the ATFI rules, and that it was up to carriers and

conferences to develop their own rules

[[Page 11221]]

and practices under those circumstances. The Commission discerns no

reason to alter this situation under OSRA.

JUSEFC contends that Sec. 520.4(e)(3)(ii) will result in complex

additional programming to generate the list of TRIs applicable to every

indexed item as required separately by Sec. 520.6(c). It states that

the requirement appears to apply to ``viz'' lists, resulting in

thousands of unnecessary index entries. The Commission does not

consider it burdensome to require index entries for every commodity

listed in a commodity description. This should not preclude tariff

publishers from using commodity descriptions which are commercially

developed; if they include more than one commodity within a commodity

description, they simply have to show those commodities in the index.

Section 520.5 Standard Tariff Terminology

BSA supports the use of standardized codes as being consistent with

Congressional intent that tariff information and tariff publishing

systems be simplified and standardized. Further, BSA asserts that these

codes must be enforced by the Commission for all common carriers,

conferences and filing parties. NAI suggests two additional codes to

the ``packaging codes'': ``Knockdown Wood Crates (KWC)'' and ``Wood

Crates (WC).'' NITL, on the other hand, does not believe that standard

codes should be adopted, as they are likely to become quickly outdated.

JUSEFC maintains that there should be no prior approval for the use of

a code not on the list. OCWG argues that approved codes are a form and

manner requirement of the type the Commission no longer has authority

to issue. It further contends that the proposed terminology is not

commonly used in the industry by either shippers or carriers and that

standard codes only make sense when all tariffs are filed in the same

database.

The Commission continues to believe that the codes contained in the

Appendix are the types of standardization envisioned by Congress.

Moreover, we seriously doubt that the majority of codes will become

quickly outdated or are not used in the industry today. Nonetheless, in

light of the comments, the Commission has made several changes to

paragraph (a). References to ``approved codes'' have been deleted and

it has been clarified that the codes are intended to provide a

standard, terminology baseline. But, rather than have the Commission

consider additions to the Appendix on a case-by-case basis, the final

rule provides that tariff publishers may use additional codes, if they

are clearly defined in their tariffs.

PCTB notes that the National Imagery and Mapping Agency (``NIMA'')

gazeteer only covers foreign locations. It suggests the use of the

Geographic Names Information System (``GNIS'') for U.S. locations. The

Commission has adopted this suggestion in the final rule.

The majority of the commenters objected to the requirement that

locations in a tariff must appear in the NIMA gazeteer and ports in the

World Port Index (``WPI''). COSCO suggests that the Commission should

permit the use of new place names, if a carrier can demonstrate that

they are in current usage. CENSA would eliminate entirely the

requirement that foreign locations be identified with a relevant

gazeteer. This would purportedly enable carriers to use simpler tariff

structures. Matson likewise believes that NIMA geographic locations

should be eliminated, while P&O further objects to the WPI. NITL avers

that publishers should be free to use common, everyday names for ports

and locations, as long as they are clear. OCWG expresses similar

sentiments, questioning the need for standard location names in systems

that are all different, unlike ATFI. Moreover, it claims that the use

of standardized geographic names was required in ATFI because it was a

government database.

In light of these comments, the Commission has amended paragraph

(b) to make the use of NIMA, GNIS, or WPI advisory, rather than

mandatory. In addition, the rule has been clarified to permit

publishers to use geographic names that are currently in use but not

yet included in these publications.

Section 520.6 Retrieval of Information

BSA supports the proposed rule's requirement that tariffs provide

users with the ability to search for commodities by text or number

search. It further suggests that the Commission could require tariff

systems to search for various commodities by U.S. HTS or by a simple

description of the commodity in question. ETM suggests that paragraph

(a) be clarified to require a ``method of tariff selection.'' CENSA, on

the other hand, believes that the complex tariff searching mechanisms

are a burden. NITL also submits that the extensive search requirements

may not be necessary. It suggests that a comprehensive text search

capability, linked to a reference to the applicable basic ocean freight

rate and any applicable assessorials would meet shippers' needs for

accuracy and accountability. OCWG also asserts that the extensive

search requirements will require carriers to expend significant sums of

money and contends that tariffs can be searched by a much simpler

mechanism--a text search capability. It concludes that commodities and

rules could be located easily and quickly through ``key word'' searches

of a tariff. OCWG also notes that, without a requirement for numeric

commodity coding, there is no need for searches based on a 14-digit

TRI.

After further review, we believe that the capability to search for

tariff matter by text search appears to provide a sufficient degree of

accessibility to tariff users at this time. As a result, paragraphs

(a), (b), (c), and (d) have been amended in several aspects. Paragraph

(a) sets forth general search requirements for tariff systems as a

whole, while paragraph (b) limits searches for tariff matter to non-

case sensitive text searches. The requirement for direct rate search by

TRI number has been deleted. Paragraph (c) states that retriever

selection of a specific commodity from a commodity index list will

provide an option for searching for a rate. Lastly, paragraph (d)

provides a text search mechanism to locate objects within an object

group.

Paragraph (e) of the proposed rule required a minimum rate

calculation capability for tariffs--the basic ocean freight (to include

any adjustments to the basic ocean freight and inland rates for

combination rates) and a list of all applicable assessorial charges, by

rule number and charge title. NCBFAA supports this proposal, noting

that people accessing a tariff should be able to find the ``all-in''

cost by making a single inquiry. They further contend that this would

not require enormous programming expertise. NITL also supports the

proposal, stating that it is important that a tariff reveal a

calculated basic ocean freight rate and at least a list of all

applicable assessorial charges. It views this as the ``bottom-line''

requirement for tariff accuracy that the statute requires. BSA would

continue the ``bottom-line'' calculation capability currently found in

ATFI.

On the other hand, COSCO asserts that the minimum rate calculation

capability required by the proposed rule is just short of a bottom-line

calculation and would require a considerable investment in software.

Matson likewise believes that this capability would require a

substantial programming effort and would cost it at least $1.6 million

to develop. JUSEFC argues that the calculated basic ocean freight is

contrary to OSRA and should be deleted or made a recommended feature.

It questions why the Commission deems tariff users capable of reading

and

[[Page 11222]]

calculating all assessorials, but finds them unable to read and apply

rules pertaining to minimum quantities and quantity discounts. OCWG

asserts that the proposed rate calculation capability requires all the

functions of ATFI, except reaching a bottom-line rate, and would

require ATFI-like algorithms in private systems. The carriers further

contend that writing such algorithms and linking them to TRIs would be

complex, time-consuming and expensive and would require the use of

third party vendors. OCWG concludes by arguing that carriers should be

able to provide tariff users with the charges that apply without the

use of links or algorithms--by simply listing the charges that apply to

all shipments in text format.

Upon reconsideration, the Commission has amended paragraph (e) by

deleting the requirement for a calculated basic ocean freight and

instead will require a display of the basic ocean freight rate and a

list of all applicable assessorial charges. This will significantly

reduce the burdens for publishers while still satisfying the

requirements of OSRA. This paragraph further states that if other rules

or charges may be applicable to a shipment under certain circumstances,

the tariff shall so indicate. This approach should still enable a

shipper to ascertain all of the charges that will be applicable to a

particular shipment, without requiring carriers to engage in the

calculations necessary to arrive at a calculated basic ocean freight

rate.

OCWG has also proposed that the Commission eliminate the

requirement in paragraph (f) that all tariff matter display the

publication date and effective date. They argue that in a system with

no ``access-date capacity,'' these dates do not provide any useful

information. They further contend that matter appearing in a tariff as

accessed would by definition be effective and applicable and that only

newly filed tariff matter that has not yet become effective should show

an effective date.

The Commission declines to accept this suggestion. Under the final

rule, tariff systems will still have to provide access date capability

to retrievers. This means that tariff users will have access to data in

effect on a given date in the past and publication dates and effective

dates may be of interest to them. Moreover, a tariff system without

such information would make it virtually impossible for a shipper to

audit its transportation costs or for the Commission to ascertain

compliance with the requirements of the 1984 Act.

Section 520.7 Tariff Limitations

P&O suggests that the Commission should continue the existing

practice of permitting ninety (90) days for transition from an

individual tariff to a conference tariff. OCWG likewise states that new

conferences and new members of conferences should have 90 days to

publish their tariffs or begin participating in the conference tariff.

The Commission agrees and has amended paragraph (g) accordingly. In

addition, the Commission has added new language to indicate that

individual conference members may still publish their own separate

tariffs on open rates.

Proposed subsection (a)(3) prohibited cross-references to any other

tariffs, except a tariff of general applicability maintained by that

same carrier or conference. COSCO suggests that the Commission

reconsider this prohibition, and permit cross-referencing as long as

the other tariff is also available on-line. PCTB maintains that the

Commission should allow reference to general reference tariffs (e.g.,

IMO Dangerous Goods Code, Bureau of Explosives Tariffs), as is

currently permitted, if information is provided as to where such

tariffs are available for inspection. P&O also questions the reasons

for the prohibition and suggests that cross-referencing should be

allowed to ``another tariff to which the tariff's publisher is also the

publisher or a participating carrier.'' OCWG submits that the

prohibition should be eliminated or modified. It notes that in an

electronic environment, moving from one tariff to another is much

easier. At the least, it contends that cross-referencing for time/

volume rates should be allowed.

The Commission agrees with the general thrust of these comments. As

an initial matter, the cross-referencing prohibition has been limited

to ``rate'' tariffs. As a result, carriers can reference other

publications that are commonly used in the industry, such as general

reference tariffs. In addition, the exceptions to the prohibition have

been expanded to permit necessary cross-references occasioned by time/

volume rate situations.

In its general comments, OCWG noted that the proposed rule is

silent on how the Commission intends to deal with tariff matter that it

considers deficient. It believes that ground rules would be beneficial

for both the industry and the Commission's staff, and has suggested a

provision which would require the Commission to seek voluntary

correction of allegedly deficient tariff matter. The Commission has not

adopted this suggestion in the final rule. The Commission anticipates

that it will seek, under OSRA, voluntary correction of tariff matter

that is unclear, incomplete or not in accordance with applicable

statutory and regulatory requirements. However, the Commission does not

want to hold itself to such rigid requirement in all instances.

Section 520.8 Effective Dates

COSCO, a controlled carrier, claims that the 30-day advance notice

requirement for rate reductions in the bilateral trades will

disadvantage it, as it will be unable to offer short-notice rate

reductions to its customers, many of whom book small amounts of

containers at a time. It further contends that the Commission's

exemption in Petition No. P1-98 will not give it sufficient

flexibility, since it only allows COSCO to meet competitors' published

rates. COSCO thus urges the Commission to consider steps to mitigate

the damaging effects of the 30-day notice requirement.

The Commission is unable to take any measures in this rulemaking

proceeding to mitigate the effects of the 30-day notice requirement for

rate reductions by controlled carriers in the bilateral trades, since

such relief is outside the scope of this proceeding. Moreover, the

Commission questions the appropriateness of such relief, given the fact

that Congress consciously repealed the bilateral trade exemption when

passing OSRA.

BSA suggests that the Commission should require the effective date

of tariffs to be clearly stated on all published tariffs. While there

is nothing inherently wrong with such a requirement, its need may be

obviated by the fact that Sec. 520.6(f) requires all displays of

individual tariff matter to include an effective date. The Commission

declines at this time to adopt BSA's suggestion.

PCTB questions the omission of the word ``charge'' from paragraph

(a). It also requests clarification on whether a carrier introducing a

new service which has a charge, e.g., new outports subject to an

arbitrary charge, can do so without a 30-day delay. The Commission has

amended paragraph (a) to include the word ``charge.'' The Commission is

reluctant to conclude that the introduction of such a new service

should warrant across-the-board relief from the 30 days' notice

requirement. Carriers desiring relief can always seek special

permission pursuant to Sec. 520.14.

Section 520.9 Access to Tariffs

CENSA supports the access requirements via dial-up or the internet.

NATI, however, suggests that other

[[Page 11223]]

methods of access should be permitted, subject to Commission approval.

ETM claims that a static internet address limits a carrier's ability to

change systems or agents. ETM also suggests that proposed

Sec. 520.9(e)(3) should be amended to reflect that some carriers and

conferences will use systems of their agents. ETM also questions what a

reasonable fee should be and asks for confirmation that pricing

matrices will be acceptable. P&O again asks clarification that

``person'' includes ocean common carriers. It also raises the specter

of a large number of persons accessing a tariff slowing a site or

making it unaccessible to others. P&O suggests that publishers should

be free to terminate a connection that has not been active for 10

minutes. P&O also believes that the Commission should clarify that

carriers can provide access without user names or passwords, and at no

cost.

BSA expresses concern that the rules do not address the

unauthorized tampering of websites, resulting in misinformation, and

recommends that the FMC initiate an industry-wide forum to discuss and

address tariff security and integrity issues. It further recommends the

Commission adopt regulations aimed at persons who knowingly access and

tamper with the security and integrity of a tariff.

The Commission shares BSA's concerns about tariff security and

integrity. However, this rulemaking proceeding is not the proper forum

within which to address such issues. Integrity issues can be revisited

once the rules implementing OSRA have been in place and we have

experience under them. The Commission also notes that anyone seeking to

provide another method of access to tariffs could petition for a

rulemaking or an exemption. The Commission does not perceive a need to

adopt specific rules regarding the length of access-time that is

reasonable. We note, however, that in a situation when other potential

users are being denied access, it would not be unreasonable to

terminate inactive connections. There is no need to indicate that

carriers can provide access at no cost since they ``may'' assess a

reasonable fee. The Commission further notes that there is nothing

inherently suspect about pricing matrices. Lastly, the Commission has

amended paragraph (g) so that user identification and passwords must be

provided to the Commission only if the publisher requires them.

Section 520.10 Integrity of Tariffs

NCBFAA asserts that the five (5)-year data retention requirement in

paragraph (a) is critically important to parties who need it to recall,

track, and memorialize tariff information. COSCO accepts a requirement

for storing historical data for 5 years, but opposes on-line storage.

COSCO and Matson would like the ability to store historical data on

hard copies. Matson maintains that keeping tariffs available on-line is

beyond its current capabilities and that historical data is rarely

required by its customers. P&O suggests that data be maintained on-line

for one year, with back-up tapes or other acceptable storage medium for

four (4) years. NITL also finds the 5-year requirement overly

burdensome. It submits that a requirement that carriers furnish

historical data for 5 years without charge to a shipper upon request

should be sufficient. AIFA contends that the retention requirement will

present particular problems for NVOCCs, all of whose shipments will

move under tariff rates that will change often. DCL raises similar

concerns. OCWG asserts that there is nothing about retaining historical

data on-line that makes past or current data any more or less accurate.

They maintain that the Commission and shippers can gain access to

historical data off-line, by submitting a written request.

The Commission is pleased to see that all carriers accept the fact

that there is a need to maintain historical tariff data for 5 years.

The only issues are whether data can be stored off-line in some other

form and, if so, for how long. After fully weighing the comments, the

Commission concludes that a two (2)-year on-line access requirement

will meet its needs and those of the shipping public while the

remaining three (3) years may be kept off-line. The final rule has been

so modified. In addition, if data is retained in some other electronic

form, such data shall be made available to any person or the Commission

within a reasonable time. The Commission is not going to define

reasonable period of time at this moment, but expects carriers to

respond to all requests with due diligence. In addition, carriers will

be permitted to charge a reasonable fee for the provision of historical

data, not to exceed the fees for obtaining such data on-line, but

cannot charge any fees to federal agencies.

JUSEFC suggests that the written certification required by

paragraph (e) should be deleted as unnecessary. It contends that

carriers and conferences are sufficiently made responsible for the

content of their tariffs by the 1984 Act and other tariff regulations.

OCWG likewise contends that the certification serves no useful purpose.

The Commission nonetheless concludes that a certification

requirement serves a useful purpose under the 1984 Act, as amended by

OSRA. At the very least it serves as notice to a carrier or conference

that the information in its tariffs must be correct and remain

unaltered. Indeed, given the decision to permit off-line data

retention, this certification may take on even greater significance.

However, the Commission concludes that a written certification by an

officer filed with it may not be necessary. Instead, the purposes of

the proposed requirement can be met by publishing a similar statement

with the carrier's tariff record. Accordingly, Sec. 520.4(c) has been

amended to include the requisite statement.

ETM notes that paragraph (d) of the proposed rule requires carriers

to provide the Commission ``reasonable access'' to their automated

systems. It states, however, that systems will require periodic routine

maintenance, software upgrades and other actions that may affect

accessibility, and, as such, requests that the Commission define

``reasonable access.'' The Commission recognizes that publication

systems may require some down-time for the types of activities

envisioned by ETM. However, we do not believe that ``reasonable

access'' needs to be further limited or defined, at this point in time.

If problems arise during practice, the Commission can address them in a

subsequent rulemaking proceeding.

Section 520.11 Non-Vessel-Operating Common Carriers

CBI maintains that the requirement for cross-referencing on NVOCC

bills of lading under carrier-to-carrier agreements should be

eliminated, because there is no value-added service and it complicates

OTI operations. However, the Commission is unable to make such a change

at this time. The issue may be more appropriately raised in any overall

review of the co-loading rules that may occur once OSRA's implementing

regulations are complete.

AIFA asserts that NVOCCs need flexibility to publish extremely

simple electronic tariffs in a format best suited to their individual

operations. It suggests further that the Commission should conduct a

rulemaking to determine whether a full or partial exemption from tariff

filing is warranted for NVOCCs. DCL likewise contends that the true

solution is an NVOCC exemption from tariff filing. The Commission

believes that any such exemption is beyond the scope of this rulemaking

proceeding. To the extent that AIFA or others seek to invoke the

exemption authority under section 16 of the 1984 Act, as modified by

OSRA,

[[Page 11224]]

they should file a petition for exemption with appropriate

justification.

Section 520.12 Time/Volume Rates

OCWG endorses the proposed changes in Secs. 520.12(c) and (e), as

codifying existing Commission practice. It suggests, however, that

language should be added to paragraph (e) to clarify that carriers are

not precluded from rerating cargo in the event a shipper fails to

fulfill the minimum volume requirement of a time/volume rate. The

Commission agrees, and has added appropriate language to paragraph (e).

Section 520.13 Exemptions

HHGFAA points out an apparent clerical error in Sec. 520.13(c)(5),

that perpetuates a similar error in 46 C.F.R. Sec. 514.3(b)(5). It

notes that the intent of the exemption was to exempt ``civilian''

household goods moving under the International Household Goods Program

administered by the General Services Administration, and, therefore,

the adjective ``military'' should be deleted. The Commission agrees

with this suggestion and has accordingly amended Sec. 520.13(c)(5) in a

manner consistent with HHGFAA's comment.

NAI requests that the Commission clarify that the exemption in

Sec. 520.13(c)(3) only applies to rates filed with the Military Traffic

Management Command (``MTMC'') for shipments of used military household

goods and personal effects for the account of the Department of Defense

(``DOD''). NAI avers that this ``clarification'' is consistent with the

Commission's intent when it originally adopted the exemption in 1981.

Regardless of the merit to NAI's position in this matter, the

Commission could not make such a change without first according an

opportunity for comment to all potentially affected parties, including

DOD.

Section 520.14 Special Permission

ETM suggests that the Commission should define the terms

``reasonable promptness'' in paragraph (b) and ``prompt'' in paragraph

(d). The Commission does not agree. We need a certain degree of

flexibility in addressing special permission applications. The

Commission generally allows two weeks as reasonable, but does not wish

to be constrained by a prescribed time limit.

European Inland Movements

Another issue raised by the notice of proposed rulemaking was the

treatment of inland portions of through movements to Europe. The

Commission noted that the European Commission (``E.C.'') prohibited

conference tariffs which cover the movement of cargo to inland points

in Europe and questioned whether individual tariffs of conference

members covering European inland transport for the same customer

utilizing a conference tariff for the U.S.-Europe ocean movement, must

be published under the Act. The Commission noted that such publishing

would appear consistent with the statutory requirements of the Act, to

the extent they establish the European inland portion of a through rate

charged by a carrier in a U.S.-Europe intermodal movement.

CENSA believes that the elimination of many of the onerous

requirements in the proposed rule would reduce the burdens on carriers

publishing foreign inland rates. Alternatively, it suggests that the

Commission exempt foreign inland rates from these requirements. OCWG

likewise believes that if its proposals are adopted, they would

substantially reduce the burden of filing foreign inland rates. If its

recommendations are not adopted as a whole, OCWG suggests that the

Commission adopt one or more with respect to foreign inland rates,

e.g., exempt them from the 5-year on-line history requirement or

eliminate the requirement that foreign locations appear in gazetteers.

P&O suggests that the issue more appropriately should be whether

the FMC should continue to require the publication of inland rates

outside of the United States. Nonetheless, it agrees with the

Commission that a carrier's inland rates to/from points in Europe are

required to be published under the Act. It notes that under E.C.

requirements, carriers will be required to make inland rate tariffs

available to shippers and presumes that they will have to maintain

schedules of such charges. P&O concludes that the publication of

European inland rates would not appear to be overly burdensome or

expensive and urges the Commission not to consider any exemption as

part of this rulemaking.

TACA notes that the E.C. ``obligation'' (to make tariffs available

on request to transport users at reasonable cost or available for

examination at offices of shipping lines) applies only to vessel-

operating carrier members of liner conferences. It also notes that the

failure of a single member of a conference to comply with the

obligation could result in the withdrawal of the block exemption

afforded the conference as a whole. TACA further suggests that the

public tariff availability requirements of the obligation are similar

to the requirements imposed by the 1961 amendments to the Shipping Act,

1916 (P.L. 87-346, 75 Stat. 762).

TACA proposes, therefore, that the Commission should adopt the

identical requirements of the obligation with respect to public access

to tariff matter covering European inland transport of shipments, with

a prior or subsequent movement by sea between ports in Europe and the

U.S. It asserts that this would completely harmonize E.C. and U.S.

regulatory requirements, ensure unfettered public access to complete

and accurate relevant tariff material, and would substantially ease the

burdens and expenses of the proposed rules.

TACA's suggestion that the Commission accept tariff publication for

European inland movements in the same manner as required under the E.C.

obligation (i.e., available on request or at the offices of a carrier)

is a substantial deviation from the tariff publishing requirements

under the 1984 Act, as amended by OSRA. At the very least, such a

procedure could only be adopted after a full and complete exemption

hearing pursuant to section 16 of the 1984 Act. It would further appear

that the many substantive changes made to the proposed rule will

alleviate many of TACA's concerns with respect to the burdens of tariff

publishing for these particular movements. In addition, the Commission

has recently granted TACA and the U.S. South Europe Conference special

permission to cross-reference the tariffs of its individual members for

European inland movements, and the Commission will continue this

practice after May 1, 1999.

Transition Problems

Another issue that has been raised by several commenters is their

ability to implement new private automated tariff systems by May 1,

1999. P&O notes that it is unclear whether the transition from ATFI to

private systems can take effect without thirty (30) days advance

publication of the system and contends that, as a result, carriers

would in effect have 30 days to put their tariffs in place. OCWG raises

similar concerns and notes that a waiver of the 30 days' notice

requirement would only provide one additional month in which to design,

develop, test and populate automated systems. CENSA avers that only a

substantial reduction in the requirements will allow carriers to have

their systems in place by May 1, 1999.

In light of these concerns, commenters have suggested that the

Commission keep ATFI in place for various time periods, to permit a

smooth transition to private systems. COSCO and P&O suggest sixty (60)

days; OCWG

[[Page 11225]]

would extend ATFI until December 31, 1999; and ETM would have ATFI

continue until such time as the new systems are ready.

The Commission declines to accept this invitation to extend ATFI.

In this regard, we note that the various changes made to the proposed

rule should make the transition to private tariff systems considerably

easier. In addition, the Commission will give carriers an additional 30

days to meet the requirements of the rule by issuing blanket special

permission for new tariffs with no increases to go into effect without

the 30 days' advance notice requirement. Carriers should thus be able

to meet the reduced burdens occasioned by the rule by May 1, 1999.

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 amendments

will either have no affect on small entities, or in the case where the

amendments are likely to impact small entities, the economic impact

will be de minimis. The comments received did not dispute the

Commission's intention to so certify, and, therefore, the certification

is continued.

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

804(2).

The Commission has received OMB approval for this collection of

information pursuant to the Paperwork Reduction Act of 1995, as

amended. In accordance with the Act, agencies are required to display a

currently valid control number. The valid control number for this

collection of information is 3072-0064.

List of Subjects in 46 CFR Part 520

Common carrier; Freight; Intermodal transportation; Maritime

carrier; Reporting and recordkeeping requirements.

For the reasons discussed in the preamble, the Federal Maritime

Commission adds Part 520 to Subchapter B, Chapter IV of 46 CFR as

follows:

Add part 520 to read as follows:

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 and exceptions.

520.14 Special permission.

520.91 OMB control number assigned pursuant to the Paperwork

Reduction Act.

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; and sec. 424 of Pub. L. 105-383, 112 Stat. 3411.

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 Public Law 105-258.

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

(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.

Commodity description number means a number that may be 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

[[Page 11226]]

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 (``U.S. HTS''), based on the international Harmonized

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

International Trade Commission, and Schedule B, administered by the

U.S. Census Bureau.

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 axis, with

the inland rates specified at the matrix row and column intersections.

Intermodal transportation means continuous through 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.

Motor vehicle means an automobile, truck, van, or other motor

vehicle used for the transportation of passengers and cargo; but does

not include equipment such as farm or road equipment which has wheels,

but whose primary purpose is other than transportation.

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,

(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

loading.

Port means a place at which a common carrier originates or

terminates

[[Page 11227]]

(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 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.

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.

TRI number means a number that consists of the numeric commodity

code, if any, and a unique numeric suffix used to differentiate TRIs

within the same commodity description. TRI numbers are not required in

systems that do not use numeric commodity coding.

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

connection with through transportation.

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 an ocean common 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 may publish any open rates offered by their members.

Alternatively, open rates may be published in individual tariffs of

conference members.

(c) Agents. Common carriers or conferences may use agents to meet

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 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 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 list 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

[[Page 11228]]

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.

(c) Tariff record. The tariff record for each tariff shall include:

(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;

(7) Origination and destination scope; and

(8) A statement certifying that all information contained in the

tariff is true and accurate and no unlawful alterations will be

permitted.

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

tariffs any rule that affects the application of the tariff.

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

tariff, a distinct numeric code may be used. Tariff publishers are not

required to use any numeric code to identify commodities, but should

they choose to do so, they are encouraged to use the U.S. Harmonized

Tariff Schedule (``U.S. HTS'') for both the commodity coding and

associated terminology (definitions).

(2) If a tariff publisher uses a numeric code to identify

commodities, 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.

(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 (optional);

(3) Publication date;

(4) Effective date;

(5) Origin and destination locations or location groups;

(6) Rate and rate basis; and

(7) Service code.

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

tariff, a publisher may 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 contains

codes for rate bases, container sizes, service, etc., and units for

weight, measure and distance. They are intended to provide a standard

terminology baseline for tariffs to facilitate retriever efficiency.

Tariff publishers may use additional codes, if they are clearly defined

in their tariffs.

(b) Geographic names. Tariffs should employ locations (points) that

are published in the National Imagery and Mapping Agency (``NIMA'')

gazetteer or the Geographic Names Information System (``GNIS'')

developed by the U.S. Geological Survey. Ports published or approved

for publication in the World Port Index (Pub. No. 150) should also be

used in tariffs. Tariff publishers may use geographic names that are

currently in use and have not yet been included in these publications.

Sec. 520.6 Retrieval of information.

(a) General. Tariffs systems shall present retrievers with the

ability to:

(1) Search for commonly understood tariff objects (e.g.,

commodities, origins, destinations, etc.) without restricting such

search to a specific tariff;

(2) Search a tariff for a rate on the basis of origin, destination

and commodity;

(3) Employ a tariff selection option; or

(4) Select an object group (e.g., rules, locations, groups, etc.)

within a particular tariff.

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

search for tariff matter by non-case sensitive text search. Text search

matches for commodity descriptions should result in a commodity or

commodity index list.

(c) Commodities and TRIs. Retriever selection of a specific

commodity from a commodity index list shall display the commodity

description and provide an option for searching for a rate (e.g., on

[[Page 11229]]

the basis of origin/destination) or a TRI list, if multiple TRIs are in

effect for the commodity.

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

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

text search mechanism to allow location of an object within the group.

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

of the rules or a text search mechanism for locating specific terms or

phrases within the rules.

(e) Basic ocean freight. The minimum rate display for tariffs shall

consist of the basic ocean freight rate and a list of all assessorial

charges that apply for the retriever-entered shipment parameters. If

other rules or charges may be applicable to a shipment under certain

circumstances, the tariff shall so indicate.

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

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

contained in Appendix A of 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 rate tariffs, except:

(i) A tariff of general applicability maintained by that same

carrier or conference,

(ii) The individual tariffs of members of a non-conference

agreement to enter into time/volume rates may cross-reference the

tariffs of other members for purposes of said time/volume rates, and

(iii) Multiple common tariffs of a conference agreement to enter

into time/volume rates may cross-reference their own multiple

conference tariffs for purposes of said time/volume rates; and

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

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

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

of that cancelation.

(c) Applicable rates. The rates, charges, and rules applicable to

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 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, within ninety (90) days of membership in the conference.

Individual conference members may publish their own separate open rate

tariffs. Admission to the conference may be effective on the date

notice is published in the conference tariff.

(2) New conference agreements have ninety (90) days within which to

publish a new tariff.

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

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

(3) 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 (1) 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, charge, or change in an

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

become effective earlier than thirty (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 rates, 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.

(c) Controlled carriers. Published rates by or for controlled

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:

[[Page 11230]]

(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.

(c) 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 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, if they require such

identifications and passwords.

Sec. 520.10 Integrity of tariffs.

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

data that appeared in their tariff publication systems for a period of

five (5) years from the date such information is superseded, canceled

or withdrawn, and shall provide on-line access to such data for two (2)

years. After two (2) years, such data may be retained on-line or in

other electronic form, and shall be made available to any person or the

Commission upon request in a reasonable period of time. Carriers and

conferences may charge a reasonable fee for the provision of historical

data, not to exceed the fees for obtaining such data on-line. No fee

shall apply to federal agencies.

(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.

(c) Periodic review. The Commission will periodically review

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

fails to meet the requirements of this part.

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

Commission reasonable access to their automated systems and records in

order to conduct reviews.

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 Commission's

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

(c) Co-Loading. (1) NVOCCs shall address the following situations

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.

[[Page 11231]]

(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.

(c) Accepted rates. Once a time/volume rate is accepted by one

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 5 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. Carriers and agreements shall rerate cargo moved at the

applicable tariff rate, if a shipper fails to meet the requirements of

the time/volume offer.

Sec. 520.13 Exemptions and exceptions.

(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 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.

(c) Cargo types. The following cargo types are not subject to the

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 motor

vehicles, 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.

(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 household goods and personal effects by ocean

transportation intermediaries shipped for 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.

[[Page 11232]]

(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.

(c) Application. (1) Applications for special permission to

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''.

Sec. 520.91 OMB control number assigned pursuant to the Paperwork

Reduction Act.

The Commission has received OMB approval for this collection of

information pursuant to the Paperwork Reduction Act of 1995, as

amended. In accordance with the Act, agencies are required to display a

currently valid control number. The valid control number for this

collection of information is 3072-0064.

Appendix A to Part 520--Standard Terminology and Codes

I.--Publishing/Amendment Type Codes

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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.

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II.--Unit Codes

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

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

A. Weight Units:

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

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

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

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

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

B. Volume Units:

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

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

C. Length Units:

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

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

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

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

D. Measure Board Feet:

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

E. Distance Units:

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

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

F. Rate Basis:

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

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

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

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

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

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

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

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

G. Container Size Codes:

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

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

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

20 FT 8'6''................................ 20

20 FT 9'0'' High Cube...................... 20A

20 FT 9'6'' High Cube...................... 20B

20 FT 8'0''................................ 20S

20 FT Any Height........................... 20X

24 FT 8'6''................................ 24

24 FT 9'0'' High Cube...................... 24A

24 FT 9'6'' High Cube...................... 24B

24 FT 8'0''................................ 24S

24 FT Any Height........................... 24X

35 FT 8'6''................................ 35

35 FT 9'0'' High Cube...................... 35A

35 FT 9'6'' High Cube...................... 35B

35 FT 8'0''................................ 35S

35 FT Any Height........................... 35X

40 FT 8'6''................................ 40

[[Page 11233]]

40 FT 9'0'' High Cube...................... 40A

40 FT 9'6'' High Cube...................... 40B

40 FT 8'0''................................ 40S

40 FT Any Height........................... 40X

42 FT 8'6''................................ 42

42 FT 9'0'' High Cube...................... 42A

42 FT 9'6'' High Cube...................... 42B

42 FT 8'0''................................ 42S

42 FT Any Height........................... 42X

43 FT 8'6''................................ 43

43 FT 9'0'' High Cube...................... 43A

43 FT 9'6'' High Cube...................... 43B

43 FT 8'0''................................ 43S

43 FT Any Height........................... 43X

45 FT 8'6''................................ 45

45 FT 9'0'' High Cube...................... 45A

45 FT 9'6'' High Cube...................... 45B

45 FT 8'0''................................ 45S

45 FT Any Height........................... 45X

48 FT 8'6''................................ 48

48 FT 9'0'' High Cube...................... 48A

48 FT 9'6'' High Cube...................... 48B

48 FT 8'0''................................ 48S

48 FT Any Height........................... 48X

53 FT 8'6''................................ 53

53 FT 9'0'' High Cube...................... 53A

53 FT 9'6'' High Cube...................... 53B

53 FT 8'0''................................ 53S

53 FT Any Height........................... 53X

H. Container Type Codes:

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

Atmosphere Control......................... AC

Collapsible Flatrack....................... CF

Drop Frame................................. DF

Flat Bed................................... FB

Flat Rack.................................. FR

Garment Container.......................... GC

Half-Height................................ HH

Hardtop.................................... HT

Insulated.................................. IN

Open Top................................... OT

Dry........................................ PC

Platform................................... PL

Reefer..................................... RE

Tank....................................... TC

Top Loader................................. TL

Trailer.................................... TR

Vehicle Racks.............................. VR

I. Container Temperature Codes:

Not Appl/Operating......................... N/A

Artificial Atmo Ctrl....................... AC

Chilled.................................... CLD

Frozen..................................... FRZ

Heated..................................... HTD

Refrigerated............................... RE

Ventilated................................. VEN

J. Packaging Codes:

Bag........................................ BAG

Bale....................................... BAL

Bar........................................ BAR

Barrel..................................... BBL

Bundle..................................... BDL

Beam....................................... BEM

Bing Chest................................. BIC

Bin........................................ BIN

Bulk....................................... BLK

Bobbin..................................... BOB

Box........................................ BOX

Barge...................................... BRG

Basket/Hamper.............................. BSK

Bushel..................................... BUS

Box, with Inner Cntn....................... BXI

Bucket..................................... BXT

Cabinet.................................... CAB

Cage....................................... CAG

Can........................................ CAN

Carrier.................................... CAR

Case....................................... CAS

Cntnrs of Bulk Cargo....................... CBC

Carboy..................................... CBY

Can Case................................... CCS

Cheeses.................................... CHE

Core....................................... COR

Cradle..................................... CRD

Crate...................................... CRT

Cask....................................... CSK

Carton..................................... CTN

Cylinder................................... CYL

Dry Bulk................................... DBK

Double-length Rack......................... DRK

Drum....................................... DRM

Double-length Skid......................... DSK

Double-length.............................. DTB

Firkin..................................... FIR

Flo-Bin.................................... FLO

Frame...................................... FRM

Flask...................................... FSK

Forward Reel............................... FWR

Garment on Hanger.......................... GOH

Heads of Beef.............................. HED

Hogshead................................... HGH

Hopper Car................................. HPC

Hopper Truck............................... HPT

On Hanger/Rack in bx....................... HRB

Half-Standard Rack......................... HRK

Half-Stand. Tote Bin....................... HTB

Jar........................................ JAR

Keg........................................ KEG

Kit........................................ KIT

Knockdown Rack............................. KRK

Knockdown Wood Crates...................... KWC

Knockdown Tote Bin......................... KTB

Liquid Bulk................................ LBK

Lifts...................................... LIF

Log........................................ LOG

Loose...................................... LSE

Lug........................................ LUG

Lift Van................................... LVN

Multi-roll Pak............................. MRP

Noil....................................... NOL

Nested..................................... NST

Pail....................................... PAL

Packed--NOS................................ PCK

Pieces..................................... PCS

Pirns...................................... PIR

Package.................................... PKG

Platform................................... PLF

Pipe Line.................................. PLN

Pallet..................................... PLT

Private Vehicle............................ POV

Pipe Rack.................................. PRK

Quarters of Beef........................... QTR

Rail (semiconductor)....................... RAL

Rack....................................... RCK

Reel....................................... REL

Roll....................................... ROL

Reverse Reel............................... RVR

Sack....................................... SAK

Shook...................................... SHK

Sides of Beef.............................. SID

Skid....................................... SKD

Skid, Elev, Lift Trk....................... SKE

Sleeve..................................... SLV

Spin Cylinders............................. SPI

Spool...................................... SPL

Tube....................................... TBE

Tote Bin................................... TBN

Tank Car Rail.............................. TKR

Tank Truck................................. TKT

Intermdl Trlr/Cntnr........................ TLD

Tank....................................... TNK

Tierce..................................... TRC

Trunk and Chest............................ TRK

Tray....................................... TRY

Trunk, Salesmen Samp....................... TSS

Tub........................................ TUB

Unpacked................................... UNP

Unit....................................... UNT

Vehicles................................... VEH

Van Pack................................... VPK

On Own Wheels.............................. WHE

Wheeled Carrier............................ WLC

Wood Crates................................ WC

Wrapped.................................... WRP

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

K. Shipment Stowage Location Codes:

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

On Deck.................................... OD

Bottom Stowage............................. BS

L. Hazard Codes:

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

IMD Stow Category A........................ A

IMD Stow Category B........................ B

IMD Stow Category C........................ C

IMD Stow Category D........................ D

IMD Stow Category E........................ E

Hazardous.................................. HAZ

Non-Hazardous.............................. NHZ

M. Stuffing/Stripping Modes:

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

Mechanical................................. MECH

Hand Loading............................... HAND

N. Inland Transportation Modes:

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

Motor...................................... M

Rail....................................... R

Barge...................................... B

Motor/Rail................................. MR

Rail/Motor................................. RM

Motor/Barge................................ MB

Barge/Motor................................ BM

Rail/Barge................................. RB

Barge/Rail................................. BR

O. Shipment Service Types:

Barge...................................... B

Door....................................... D

House...................................... H

Motor...................................... M

Ocean Port................................. O

Pier....................................... P

Rail Yard.................................. R

Container Station.......................... S

Terminal................................... T

Container Yard............................. Y

Rail Siding................................ U

Team Tracks................................ X

P. Freight Forwarder/Broker Type Codes:

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

Freight Forwarder.......................... FF

Customs House Broker....................... CB

Other...................................... OTH

Q. Tariff Type Codes:

Bill of Lading Tariff..................... BL

Equipment Interchange Agreement Tariff..... EI

[[Page 11234]]

Essential Terms Publication................ ET

Foreign Commodity Tariff................... FC

Foreign Rules Tariff....................... FR

Terminal Tariff............................ TM

Service Contracts.......................... SC

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By the Commission.*

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* Commissioner Moran voted nay on section 520.4(c)(8).

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Bryant L. VanBrakle,

Secretary.

[FR Doc. 99-5293 Filed 3-5-99; 8:45 am]

BILLING CODE 6730-01-P