[Federal Register Volume 84, Number 90 (Thursday, May 9, 2019)]
[Rules and Regulations]
[Pages 20292-20296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09564]
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SURFACE TRANSPORTATION BOARD
49 CFR Parts 1002 and 1312
[Docket No. EP 743]
Water Carrier Tariff Filing Procedures
AGENCY: Surface Transportation Board.
ACTION: Final rule.
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SUMMARY: The Surface Transportation Board (STB or Board) adopts a new
procedure for water carriers operating in the noncontiguous domestic
trade to electronically publish, file, and keep tariffs available for
public inspection.
DATES: This rule is effective on June 8, 2019.
ADDRESSES: Requests for information or questions regarding this final
rule should reference Docket No. EP 743 and be submitted via the
Board's e-filing format or in writing addressed to: Chief, Section of
Administration, Office of Proceedings, Surface Transportation Board,
395 E Street SW, Washington, DC 20423-0001. Any person using e-filing
should attach a document and otherwise comply with the instructions
found on the Board's website at www.stb.gov at the E-Filing link.
FOR FURTHER INFORMATION CONTACT: Michael Higgins at 202-245-0284.
Assistance for the hearing impaired is available through the Federal
Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION: In April 2017, the Board established its
Regulatory Reform Task Force (RRTF) to comply with the spirit of
Executive Order 13777. The primary objective of the RRTF is to identify
Board rules and practices that are burdensome, unnecessary, or outdated
and to recommend how they should be addressed. See Regulatory Reform
Task Force, EP 738 (STB served June 20, 2017). The RRTF identified the
current water carrier tariff regulations at 49 CFR part 1312 as
imposing unnecessary costs on the carriers as well as the Board. See
RRTF 90-Day Status Report (issued May 25, 2017); RRTF Status Report
(issued Nov. 21, 2017).\1\ Water carriers operating in the
noncontiguous domestic trade \2\ are required to publish, file, and
keep available for public inspection tariffs setting forth their rates,
charges, rules, and classifications. 49 U.S.C. 13702(a)-(b).\3\ The
Board's current regulations for filing water carrier tariffs
contemplate the filings of tariffs with the Board in paper format.
However, the Board has granted Special Tariff Authority--relief from
the current regulations on a case-by-case basis--to allow water
carriers to file their tariffs in alternative electronic formats,
typically email.\4\ For many carriers, these email submissions are a
daily occurrence.
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\1\ These status reports can be accessed on the Board's website.
\2\ Noncontiguous domestic trade means ``transportation subject
to jurisdiction under chapter 135 involving traffic originating in
or destined to Alaska, Hawaii, or a territory or possession of the
United States.'' 49 U.S.C. 13102(17).
\3\ Section 13702(a)(1) includes an exception from the tariff
filing requirement for bulk cargo, forest products, recycled metal
scrap, waste paper, and paper waste.
\4\ Under 49 CFR 1312.2(e), a water carrier may apply for
Special Tariff Authority.
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The Board issued a notice of proposed rulemaking that proposed to
update the regulations to allow water carriers \5\ to electronically
publish, file, and keep tariffs available for public inspection. Water
Carrier Tariff Filing Procedures (NPRM), EP 743 (STB served Dec. 21,
2018) (83 FR 66229).\6\ The Board received comments on the NPRM from
Tropical Shipping and Construction Co., Ltd. (Tropical), The Pasha
Group (Pasha), and TOTE, LLC (TOTE). After considering the comments,
the Board is adopting the rule proposed in the NPRM, without
substantive change, as a final rule. The text of the final rule is
below.
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\5\ Many water carriers use third-party service providers to
manage and maintain their tariffs on the internet.
\6\ The NPRM provides additional information on the background
of water carrier tariff requirements.
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Proposed Rule. The NPRM proposed to revise 49 CFR part 1312 to
include regulations which would allow water carriers to publish, file,
and keep their tariffs electronically, but would also continue to allow
water carriers the option of filing their tariffs in paper format.
Specifically, under the proposal, a water carrier would be permitted to
comply with the filing requirement in
[[Page 20293]]
49 U.S.C. 13702 by: (1) Maintaining a publicly available version of its
current and historical tariffs on the internet, and (2) electronically
filing (e-filing) with the Board an annual certification made by a duly
authorized corporate officer of the carrier that (a) contains an active
link \7\ to the internet location and access information for its
tariffs and (b) affirms the water carrier's continuing compliance with
the relevant sections of Part 1312. The proposed regulation, at 49 CFR
1312.4(b), listed the requirements for the annual certification and
provided sample language to be used in the certification.
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\7\ To comply with the proposed rule, if the internet address
for a water carrier's tariff system changes during the 12-month
period following the filing of its annual certification, the water
carrier would need to adhere to the proposed outage requirements at
49 CFR 1312.4(b)(3) and provide the Board an updated certification
with an active link as soon as possible.
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As explained in the NPRM and proposed at 49 CFR 1312.4(b)(3),
advance notification to the Board would be required if a water carrier
anticipates an outage of its electronic tariff system. NPRM, EP 743,
slip op. at 5. In circumstances beyond the carrier's control (such as a
software malfunction), the carrier would be required to notify the
Board promptly via email at [email protected]. Id. In the event of any
tariff system outage, carriers would be required to make alternative
arrangements with the Board to ensure that the agency and public have
access to the tariffs in effect during the outage, and the Board would
provide that information on its website so that the public would be
made aware of the particular outage as soon as reasonably possible. Id.
The proposed electronic archiving requirement under 49 CFR
1312.4(b)(4) would require a water carrier to maintain historical
versions of its tariffs, including all rates and applicable rules, for
a period of not less than five years, beginning when a carrier first
electronically files its tariffs. Id. at 11. Tariffs kept on the
internet would also need to comply with the proposed addition to 49 CFR
1312.3, requiring that water carriers provide the date on which tariffs
or changes to tariffs first appear on the internet and the date on
which they are expected to become effective. Id. at 5. The rule would
not prescribe the specific information technology resources
(programming, applications or software, etc.) that water carriers must
use to house this information, but any electronic system selected by a
carrier would need to comply with regulatory requirements and allow
access by the Board and any member of the public who requests it, free
of charge. Id.
The NPRM explained that to utilize e-filing, a filer would first
pay the required fee \8\ via electronic payment through Pay.gov.\9\
NPRM, EP 743, slip op. at 4. Once the payment has been submitted, a
confirmation email from Pay.gov would be sent containing a unique
transaction number. The filer would then go to the Board's e-filing
website and, through a registered account, submit the transaction
number received from Pay.gov and attach the annual certification. Once
the certification is received and verified, the Director of the Office
of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) or
a designee would acknowledge receipt of the annual certification in
writing. Id.
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\8\ The Board proposed an expansion of fee item 78 at 49 CFR
1002.2(f), to reflect the filing fee associated with the annual
certification. The final rule adopted here also adds a heading to
paragraph (b) of Sec. 1002.2.
\9\ Recently, the Board updated its regulations to add an
electronic payment option at 49 CFR 1002.2(a). See Payment, Filing,
& Service Procedures, EP 747 (STB served Mar. 22, 2019) (84 FR
12940). As of May 10, 2019, the Board will accept electronic payment
of fees through Pay.gov.
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Under the proposed regulations, the Board would create a web page
that provides links to the location of a water carrier's current
tariff, the most recent annual certification, and prior certifications.
NPRM, EP 743, slip op. at 4. It is expected that this web page could be
accessed by the Board and public and that the internet links to water
carrier tariffs would be available 24 hours a day, seven days a week,
year-round. Id. at 4-5. Access to water carrier tariffs filed in paper
format would continue to be available to the public via requests to
OPAGAC.
By adding an e-filing option to the regulations, the proposed rule
would eliminate the option to obtain tariff filing relief under the
existing Special Tariff Authority application process, and would revoke
all prior grants of Special Tariff Authority. NPRM, EP 743, slip op. at
4 (citing 49 CFR 1312.2(e)). The proposed changes would require water
carriers to either file their tariffs in paper format or electronically
as outlined here.
Comments. As noted above, the Board received comments on the NPRM
from Tropical, Pasha, and TOTE. The comments uniformly supported the
proposal to allow water carriers to publish, file, and keep their
tariffs electronically. Tropical and Pasha both state that the proposal
would reduce the regulatory burden on water carriers, allowing them to
function in a more efficient and less costly manner. (Tropical Comments
2; Pasha Comments 2.) TOTE supports the comments submitted by Tropical
and Pasha, and states that its subsidiaries would realize substantial
savings from the proposed rule, and that the public interest will be
protected through the Board's ongoing regulatory oversight of water
carriers. (TOTE Comments 2.)
Final Rule. After considering the comments, the Board is adopting
the rule proposed in the NPRM, without substantive change, as a final
rule. The only modification from the proposed electronic filing
procedure is changing the due date for the annual certification from
the first business day of February to the first business day of October
in order to allow water carriers to more quickly utilize this option.
Water carriers may continue to file under their existing Special Tariff
Authority until the first due date of the annual certification, which
will be October 1, 2019, at which time grants of Special Tariff
Authority will be automatically revoked.\10\ It is anticipated that the
final rule will significantly reduce the burdens associated with the
current tariff filing requirements. The new e-filing tariff procedures
will also allow the public to easily access current and historical
tariffs without requesting them from the Board, resulting in time and
cost savings for both the Board and the public. The text of the final
rule is below.
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\10\ Water carriers that have filed tariff updates within the
past year will be served a copy of this decision.
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Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601-612, generally requires a description and analysis
of new rules that would have a significant economic impact on a
substantial number of small entities. In drafting a rule, an agency is
required to: (1) Assess the effect that its regulation will have on
small entities; (2) analyze effective alternatives that may minimize a
regulation's impact; and (3) make the analysis available for public
comment. Sections 601-604. In its final rule, the agency must either
include a final regulatory flexibility analysis, section 604(a), or
certify that the final rule would not have a ``significant impact on a
substantial number of small entities,'' section 605(b). The impact must
be a direct impact on small entities ``whose conduct is circumscribed
or mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553
F.3d 467, 480 (7th Cir. 2009).
In the NPRM, the Board certified under 5 U.S.C. 605(b) that the
proposed rule would not have a significant
[[Page 20294]]
economic impact on a substantial number of small entities within the
meaning of the RFA.\11\ The Board explained that the proposed rule
would not place any additional burden on small entities because the
proposed rule would provide new procedures for water carriers operating
in noncontiguous domestic trade to electronically publish, file, and
keep tariffs available for public inspection. The new regulations would
be an option to eliminate the burdens associated with the current
tariff filing requirements. No parties submitted comments on this
issue. A copy of the NPRM was served on the U.S. Small Business
Administration.
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\11\ The Small Business Administration's Office of Size
Standards has established a size standard for water transportation,
pursuant to which deep sea freight transportation is considered
small if its number of employees is 500 or less, and coastal and
Great Lakes freight transportation is considered small if its number
of employees is 750 or less. 13 CFR 121.201 (industry subsector
483).
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The final rule adopts the procedures proposed in the NPRM, with the
revision of the due date for the annual certification. Therefore, the
Board certifies under 5 U.S.C. 605(b) that the final rule will not have
a significant economic impact on a substantial number of small entities
within the meaning of the RFA. A copy of this decision will be served
upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small
Business Administration, Washington, DC 20416.
Paperwork Reduction Act. In this proceeding, the Board is modifying
an existing collection of information that is currently approved by the
Office of Management and Budget (OMB) under OMB Control No. 2140-0026.
In the NPRM, the Board sought comments pursuant to the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501-3521, and OMB regulations at 5 CFR
1320.11 regarding: (1) Whether the collection of information associated
with the proposed changes to the OFA regulations is necessary for the
proper performance of the functions of the Board, including whether the
collection has practical utility; (2) the accuracy of the Board's
burden estimates; (3) ways to enhance the quality, utility, and clarity
of the information collected; and (4) ways to minimize the burden of
the collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology, when appropriate. No comments were received pertaining to
the collection of this information under the PRA.
This modification to an existing collection will be submitted to
OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR
1320.11.
It is ordered:
1. The Board adopts the final rule as set forth in this decision.
Notice of the adopted rule will be published in the Federal Register.
2. A copy of this decision will be served upon the Chief Counsel
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
3. This decision is effective June 8, 2019.
List of Subjects
49 CFR Part 1002
Administrative practice and procedure, Common carriers, Freedom of
information.
49 CFR Part 1312
Freight forwarders, Maritime carriers, Motor carriers, Pipelines,
Railroads, Reporting and recordkeeping requirements.
Decided: May 6, 2019.
By the Board, Board Members Begeman, Fuchs, and Oberman.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board amends parts 1002 and 1312 of title 49, chapter X,
of the Code of Federal Regulations as follows:
PART 1002--FEES
0
1. The authority citation for part 1002 is revised to read as follows:
Authority: 5 U.S.C. 552(a)(4)(A), (a)(6)(B), and 553; 31 U.S.C.
9701; and 49 U.S.C. 1321. Section 1002.1(f)(11) is also issued under
5 U.S.C. 5514 and 31 U.S.C. 3717.
0
2. Amend Sec. 1002.2 as follows:
0
a. In paragraph (b), add a paragraph heading; and
0
b. Revise paragraph (f)(78).
The addition and revision read as follows:
Sec. 1002.2 Filing fees.
* * * * *
(b) Nonpayment of fees. * * *
(f) * * *
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Type of proceeding Fee
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* * * * *
Part VI: Informal Proceedings:............ ............................
* * * * *
(78) (i) The filing of tariffs, $1 per page. ($29 min
including supplements, or contract charge.)
summaries..............................
(ii) The filing of water carrier $29.
electronic annual certifications...
* * * * *
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* * * * *
PART 1312--REGULATIONS FOR THE PUBLICATION, FILING, AND KEEPING OF
TARIFFS FOR THE TRANSPORTATION OF PROPERTY BY OR WITH A WATER
CARRIER IN NONCONTIGUOUS DOMESTIC TRADE
0
3. The authority citation for part 1312 is revised to read as follows:
Authority: 49 U.S.C. 1321(a), 13702(a), 13702(b), and 13702(d).
0
4. The heading of part 1312 is revised to read as set forth above.
0
5. Amend Sec. 1312.1(c) by revising the definition of ``Publication''
to read as follows:
Sec. 1312.1 Scope; definitions.
* * * * *
(c) * * *
Publication means a bound tariff, a tariff supplement, a looseleaf
tariff page, or an electronically published tariff.
* * * * *
0
6. Amend Sec. 1312.2 by revising paragraph (b), removing paragraph
(e), and redesignating paragraph (f) as paragraph (e) to read as
follows:
[[Page 20295]]
Sec. 1312.2 Requirement to publish and file a tariff.
* * * * *
(b) Adherence to tariff. The carrier may not charge or receive a
different compensation for the transportation or service than the rate
specified in the tariff, whether by returning a part of that rate to a
person, giving a person a privilege, allowing the use of a facility
that affects the value of that transportation or service, or another
device.
* * * * *
0
7. Amend Sec. 1312.3 by revising paragraph (a) to read as follows:
Sec. 1312.3 Tariff contents and standards; Essential criteria.
(a) Contents. Tariffs filed with the Board, including tariffs
published, filed, and kept electronically in accordance with Sec.
1312.4(b), must: Be filed in English; include an accurate description
of the services offered to the public; provide the specific applicable
rates explicitly stated in U.S. dollars and cents (or the basis for
calculating the specific applicable rates) and service terms; and be
arranged in a way that allows for the determination of the exact
rate(s) and service terms applicable to any given shipment (or to any
given group of shipments). Tariffs that are electronically kept on the
internet must also provide the date on which a new tariff or any change
in any tariff matter first appears on the internet and the date on
which it becomes effective.
* * * * *
0
8. Revise Sec. 1312.4 to read as follows:
Sec. 1312.4 Filing of tariffs.
(a) Paper filing requirements. (1) Two copies of each tariff
publication shall be filed with the Board. Packages containing tariff
filings should be prominently marked ``TARIFF FILING'' and addressed
to: Office of Public Assistance, Governmental Affairs and Compliance,
Surface Transportation Board, Washington, DC 20423-0001. Tariffs shall
be printed on paper not larger than 8\1/2\ x 11 inches.
(2) A paper tariff filing must be accompanied by an authorized
document of transmittal identifying each publication filed, and by the
appropriate filing fee (see 49 CFR part 1002). Acknowledgement of Board
receipt of a paper tariff filing can be obtained by enclosing a
duplicate transmittal letter and a postage-paid, self-addressed return
envelope. Each transmittal letter shall clearly indicate in the upper
left-hand corner thereof:
(i) The assigned alpha code of the issuing carrier or agent;
(ii) The number of pages transmitted;
(iii) The filing fee enclosed (pursuant to 49 CFR 1002.2(a)); and
(iv) The transmittal number if the filer utilizes transmittal
numbers.
(b) Electronic filing requirements. As an alternative to the paper
tariff filing procedures set forth in paragraph (a) of this section, a
water carrier may file its tariffs electronically in accordance with
the procedures and requirements of this section. Tariffs published,
filed, and kept electronically in accordance with the requirements of
this section shall be deemed to be on file with the Board for purposes
of 49 U.S.C. 13702(b).
(1) Annual certification. A water carrier that seeks to file its
tariff electronically must electronically file an annual certification
with the Board, made by the water carrier's duly authorized corporate
officer. The annual certification must be submitted to the Board on the
first business day in October each year. The Director of the Office of
Public Assistance, Governmental Affairs, and Compliance or a designee
will acknowledge receipt of each carrier's certification in writing.
The annual certification shall include the following:
(i) Certification that it is a water carrier operating in the
noncontiguous domestic trade subject to the Board's jurisdiction;
(ii) Certification that it is in compliance with the regulations of
this section for purposes of publishing, filing, and keeping its tariff
electronically;
(iii) Certification that it is in compliance with all other
regulations in this part, except those specifically applicable to
tariffs maintained in paper format;
(iv) An active link to the internet address of tariffs;
(v) The assigned alpha code of the issuing carrier or agent; and
(vi) Confirmation of electronic payment of the filing fee (pursuant
to 49 CFR 1002.2(a)).
(2) Sample text for the annual certification.
[Name of Director, Office of Public Assistance, Governmental
Affairs, and Compliance], Office of Public Assistance, Governmental
Affairs and Compliance, Surface Transportation Board, Washington, DC.
Dear Director: I, [name of signor], certify that I am [title of
office] of [name of water carrier], a water carrier operating in the
noncontiguous domestic trade subject to the jurisdiction of the Surface
Transportation Board, that [name of water carrier] is in compliance
with the regulations at part 1312 for purposes of publishing, filing,
and keeping its tariff electronically, and that it is in compliance
with all other regulations at part 1312, except those specifically
applicable to tariffs maintained in paper format.
The internet address where [name of water carrier]'s tariffs can be
located is:
This internet address is current as of [date].
I further declare (certify, verify or state) under penalty of
perjury [``under the laws of the United States of America'' if executed
outside of the United States of America] that the foregoing is true and
correct. Executed on [date].
Sincerely,
[signature of a duly authorized corporate officer of water carrier]
(3) Tariff access requirement. (i) A water carrier must provide the
Board with at least two business days advance notice of any planned
outage when its tariff will not be available on the internet, and
prompt notice on any occasion when the tariff becomes unavailable due
to circumstances beyond the carrier's control. Notice shall be
submitted by email to [email protected]. In the event of any outage,
carriers are required to make alternative arrangements with the agency
to ensure that the Board receives the tariffs in effect during the
outage.
(ii) A water carrier may establish reasonable registration
requirements for purposes of public access to its current tariff and
historical tariff information, such as requiring a user to provide his
or her name and email address; however, such requirements may not limit
tariff access to any particular group or class of users (such as
shippers or potential shippers) or impose unreasonable burdens on the
user, such as access fees or a showing of need.
(4) Historical tariff information and archiving. Tariffs kept on
the internet by a water carrier must allow the Board and the public to
retrieve historical versions, including all rates and applicable rules,
for a period of not less than five years, beginning on the date when a
carrier first electronically files its tariffs under these regulations.
0
9. Amend Sec. 1312.6 by adding paragraph (e) to read as follows:
Sec. 1312.6 Advance notice required.
* * * * *
(e) Notice for purposes of electronically filed tariffs. A water
carrier that keeps its tariffs on the internet must comply with the
notice requirements set forth in paragraph (b) of this section,
provided however, that the relevant notice periods set forth in
paragraphs (b)(1) and (2) of this section
[[Page 20296]]
shall run from the date on which the tariff matter first appears in the
water carrier's tariff on the internet.
0
10. Amend Sec. 1312.12 by adding paragraph (c) to read as follows:
Sec. 1312.12 Posting requirements.
* * * * *
(c) Exemption for electronically filed tariffs. A water carrier
that publishes, files, and keeps its tariffs electronically in
accordance with Sec. 1312.4(b) is exempt from the posting requirements
of this section.
0
11. Amend Sec. 1312.13 by adding paragraph (g) to read as follows:
Sec. 1312.13 Furnishing copies of tariff publications.
* * * * *
(g) Exemption for electronically filed tariffs. A water carrier
that publishes, files, and keeps its tariffs electronically in
accordance with Sec. 1312.4(b) is exempt from this section.
0
12. Amend Sec. 1312.15 by adding a sentence at the end of paragraph
(a) and a sentence at the end of paragraph (b) to read as follows:
Sec. 1312.15 Change of carrier or agent.
(a) * * * A water carrier that publishes, files, and keeps its
tariffs electronically in accordance with Sec. 1312.4(b) shall
promptly submit any such change by email to [email protected], but in no
case later than 20 days after the effective date.
(b) * * * A water carrier that publishes, files, and keeps its
tariffs electronically in accordance with Sec. 1312.4(b) shall
promptly submit any such change of agent by email to [email protected],
but in no case later than 200 days after the effective date.
[FR Doc. 2019-09564 Filed 5-8-19; 8:45 am]
BILLING CODE 4915-01-P