[Federal Register Volume 86, Number 66 (Thursday, April 8, 2021)]
[Proposed Rules]
[Pages 18240-18243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06128]


=======================================================================
-----------------------------------------------------------------------

FEDERAL MARITIME COMMISSION

46 CFR Part 520

[Docket No. 21-03]
RIN 3072-AC86


Carrier Automated Tariffs

AGENCY: Federal Maritime Commission.

ACTION: Advance notice of proposed rulemaking.

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

SUMMARY: The Federal Maritime Commission (Commission) has identified 
inconsistencies in the manner in which different carriers are 
interpreting and applying certain aspects of the Commission's rules. 
This Advance Notice of Proposed Rulemaking (ANPRM) will facilitate a 
fuller understanding of these issues prior to the Commission 
potentially proposing regulatory changes to its tariff regulations. The 
Commission observes that carriers are charging widely varying

[[Page 18241]]

fees and imposing varying minimum requirements for access to common 
carrier tariffs. The Commission seeks information regarding the impact 
of such fees and minimum requirements on public access to common 
carrier rules, rates, practices and charges in published tariffs and 
whether existing fees or requirements are unreasonable. Additionally, 
certain non-vessel-operating common carriers (NVOCCs) are applying what 
are commonly known as ``pass-through charges'' inconsistently under 
common carrier tariffs, and the Commission seeks to gain a broader 
understanding and information from industry stakeholders, including 
NVOCCs and vessel-operating common carriers (VOCCs).

DATES: Submit comments on or before June 7, 2021.

ADDRESSES: You may submit comments, identified by Docket No. 21-03, by 
the following methods:
     Email: [email protected]. For comments, include in the 
subject line: ``Docket No. 21-03, Comments on Carrier Automated Tariffs 
Rulemaking.'' Comments should be attached to the email as a Microsoft 
Word or text-searchable PDF document.
    Instructions: For detailed instructions on submitting comments, 
including requesting confidential treatment of comments, and additional 
information on the rulemaking process, see the Public Participation 
heading of the SUPPLEMENTARY INFORMATION section of this document. Note 
that all comments received will be posted without change to the 
Commission's website unless the commenter has requested confidential 
treatment.
    Docket: For access to the docket to read background documents or 
comments received, go to the Commission's Electronic Reading Room at: 
https://www2.fmc.gov/readingroom/proceeding/21-03/.

FOR FURTHER INFORMATION CONTACT: Rachel E. Dickon, Secretary; Phone: 
(202) 523-5725; Email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    The Shipping Act of 1984, as amended (46 U.S.C. 40101-41309) 
(Shipping Act or Act) requires that common carriers (i.e., VOCCs and 
NVOCCs) and conferences keep open for public inspection in an automated 
tariff system, their tariffs showing all rates, charges, 
classifications, rules and practices, and to make those tariffs 
available electronically to any person without time, quantity, or other 
limitation. 46 U.S.C. 40501(c). The Act charges the Commission with 
establishing requirements for the accuracy and accessibility of all 
private automated systems used to provide tariff information to the 
public. Sec.  40501(g)(1). The Act also provides that a reasonable fee 
may be charged for such access, except that Federal agencies may not be 
charged a fee. Sec.  40501(c).
    Pursuant to the Commission's Plan for Regulatory Review of Existing 
FMC Rules, the Commission's regulations at 46 CFR part 520, Carrier 
Automated Tariffs, are currently under review.\1\ As part of this 
initiative, two issues have been identified that would benefit from 
receiving clarifying information from industry participants and other 
supply chain stakeholders. Accordingly, the Commission is seeking 
comment regarding: (1) Tariff access fees and minimum access 
requirements; and (2) pass-through charges prior to potentially moving 
forward with a proposed rulemaking.
---------------------------------------------------------------------------

    \1\ See Plan for Regulatory Review of Existing FMC Rules, 
updated November 23, 2020, at https://www.fmc.gov/wp-content/uploads/2020/11/RegulatoryReformPlan.pdf.
---------------------------------------------------------------------------

II. Request for Comment

A. Tariff Access Fees

    Before the passage of the Ocean Shipping Reform Act of 1998 (OSRA), 
which became effective May 1, 1999, carrier and conference tariffs were 
filed with the Commission through the Commission's Automated Tariff 
Filing and Information system. OSRA eliminated the requirement that 
tariffs be filed with the Commission, and instead, directed carriers 
and conferences to publish tariffs in carrier automated tariff systems. 
The Commission promulgated implementing regulations reflecting this 
change effective May 1, 1999, in FMC Docket No. 98-29, Carrier 
Automated Tariff Systems.\2\ Once carriers and conferences deployed 
their carrier automated tariff systems, the Commission began receiving 
informal complaints regarding certain tariff access fees and minimum 
subscription requirements that potential tariff users believed were 
excessive. As a result, on May 9, 2000, the Commission initiated FMC 
Docket No. 00-07, Advance Notice of Proposed Rulemaking Concerning 
Public Access Charges to Carrier Automated Tariffs and Tariff Systems 
Under the Ocean Shipping Reform Act of 1998, to determine whether 
certain tariff access charges and monthly subscription requirements 
might limit the public's ability to access tariffs and tariff systems, 
and sought public comment to address the reasonableness of tariff 
access charges. Based on an assessment of the comments received in 
response to Docket No. 00-07, the Commission determined that 
promulgating a proposed rule on tariff access charges and their 
reasonableness was not necessary. The Commission did, however, issue a 
Circular Letter to provide guidance to common carriers, conferences, 
and tariff publishers with respect to the issue of reasonable fees, and 
subsequently discontinued the proceeding.\3\ In relevant part, Circular 
Letter No. 00-2 read:
---------------------------------------------------------------------------

    \2\ See Final Rule and Interim Final Rule, Carrier Automated 
Tariff Systems, 64 FR 11218 (March 8, 1999).
    \3\ See FMC Docket No. 00-07 (Proceeding Discontinued, July 11, 
2001) at https://www2.fmc.gov/readingroom/proceeding/00-07/. See 
also Circular Letter No. 00-2, Charges for Access to Tariffs and 
Tariff Systems (October 6, 2000) at https://www.fmc.gov/about-the-fmc/circulars/.

    The Commission has not promulgated regulations governing tariff 
access charges. However, it appears that ``a reasonable charge'' for 
access should recover only costs and expenses incurred by carriers 
in making their tariffs accessible to the public, and should not 
recover the costs and expenses associated with:
    (1) Developing or publishing a tariff/essential terms 
publication;
    (2) Providing access to federal agencies;
    (3) Providing access to the publishing carrier's employees or 
agents or to a publishing conference's employees or its members' 
employees or agents; or
    (4) Developing any other function or service for possible use by 
a carrier's or conference's employees or agents, as the case may be.

    Any subscription fees assessed should also be consistent with these 
criteria.
    While the foregoing relates to the Commission's experience at the 
inception of carrier automated tariff systems in 1999, more recent 
experience indicates that some tariff access fees may be so high that 
they effectively prevent tariff users from reviewing certain carrier 
tariffs, particularly those with substantial minimum charges, such as 
$1,000 or $1,500.\4\ This can be an issue, not only for shippers who 
primarily ship cargo under tariff rates, but also for shippers using 
service contracts. Once the shipper's minimum quantity commitment under 
the service contract has been fulfilled, the carrier often rates 
subsequent shipments under its tariff rates, For this reason, shippers 
may have a need to access tariffs to determine the applicable rate for 
their cargo once the volume commitment for their service contract has 
been fulfilled. The unimpeded access to tariffs is also

[[Page 18242]]

imperative during periods of rate volatility, to ensure the shipper is 
aware of the most current applicable rates.
---------------------------------------------------------------------------

    \4\ Fee range based on information reported to Commission staff 
when contacted periodically by users for guidance and assistance 
with tariff access.
---------------------------------------------------------------------------

    The Commission notes, however, that many major VOCCs and NVOCCs 
that self-publish tariffs provide access free of charge. While for such 
carriers, it is customary to request a user to register for tariff 
access by providing contact information and creating a Login/Username 
and Password. Once this has been accomplished, free access has 
generally been granted. For those carriers that do not provide tariff 
access free of charge, access fees appear to vary widely, with some 
carriers charging what appear to be excessive fees. This may indicate 
that, contrary to guidance provided by the Commission in Circular 
Letter 00-2, some carriers are not relating charges only to the actual 
costs of providing public access to tariff systems.
    For the foregoing reasons, the Commission is concerned that the 
level of some tariff access fees may impair the public's ability to 
access the information in carrier tariffs. Accordingly, the Commission 
seeks responses to the following questions, as well as any additional 
information related to the public's experience with tariff access fees.

    1. Do you agree or disagree with the Commission's guidance found 
in Circular Letter 00-2, that `` `a reasonable charge' for access 
should recover only costs and expenses incurred by carriers in 
making their tariffs accessible to the public''? In your response, 
please provide examples of potential other costs that should be 
included or excluded in an access fee, and why.
    2. In your experience, do you believe the carriers you do 
business with are charging tariff access fees that only recover the 
costs and expenses incurred in making tariffs accessible to the 
public? If not, please provide examples where this may not be the 
case.
    3. Are you inhibited from accessing common carrier tariffs 
because of tariff access fees or tariff access processes?

In your response, where possible, please include the carrier name, 
tariff number and title, tariff publisher (if applicable), and access 
fees for any tariffs you believe have excessive fees or unreasonable 
access requirements.

B. Pass-Through Charges

    The Commission has become aware of disparate industry 
interpretations of the types of charges that may be ``passed 
through'' to shippers without markup (not to exceed the charge the 
common carrier incurs) in connection with shipments moving under 
common carrier tariffs, particularly by NVOCCs. While the 
Commission's tariff regulations do not define so called ``pass-
through charges,'' such charges are referenced in 46 CFR 520.8, 
Effective Dates, which specifies the types of tariff amendments that 
may become effective immediately upon tariff publication. More 
specifically, Sec.  520.8(b)(4) provides that amendments may take 
effect upon publication that make 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.

    Historically, we understand VOCCs have relied on this provision to 
make changes to port charges, governmental charges, and other similar 
charges beyond their control effective upon publication in their 
tariffs. In contrast, NVOCCs have varied widely in the types of charges 
they have attempted to charge to shippers pursuant to Sec.  520.8(b)(4) 
when applying tariff rates, particularly with respect to VOCC charges 
and surcharges. The Commission has encountered narrow interpretations 
by NVOCCs of the types of VOCC charges that can be passed through 
without markup, but more commonly, broader interpretations by NVOCCs 
have been seen, including the pass-through of all VOCC charges and 
surcharges, as well as VOCC General Rate Increases (GRIs).
    In this regard, some NVOCCs appear to be conflating the 
Commission's tariff regulations with the Commission's 2018 rulemaking 
that expanded the flexibility of NVOCC Negotiated Rate Arrangements 
(NRAs) and NVOCC Service Arrangements (NSAs).\5\ NVOCCs using NRAs are 
exempt from the general tariff publication requirements in 46 U.S.C. 
40501 and many of the corresponding regulations in 46 CFR part 520. 46 
CFR 532.2. Unlike common carriers subject to the tariff requirements in 
46 U.S.C. 40501 and 46 CFR part 520, NVOCCs using NRAs must describe 
the applicable pass-through charges in either the NRA or rules tariff 
but need not specify the amount of those charges. 46 CFR 532.5(d)(2). 
Rather ``[f]or any pass-through charge for which a specific amount is 
not included in the NRA or the rules tariff, the NVOCC may only invoice 
the shipper for charges the NVOCC incurs, with no markup.'' 46 CFR 
532.5(d)(2)(iv). For NVOCC NRAs, the Commission provided greater 
flexibility by further stating that ``[t]he Commission is removing the 
prohibition on the pass-through of ocean carrier GRIs in order to 
increase efficiency and flexibility within the NRA framework.'' 83 FR 
34780, 34787 (July 23, 2018).
---------------------------------------------------------------------------

    \5\ See Final Rule in FMC Docket No. 17-10, Amendments to 
Regulations Governing NVOCC Negotiated Rate Arrangements and NVOCC 
Service Arrangements, 83 FR 34780 (July 23, 2018).
---------------------------------------------------------------------------

    The current tariff regulations permit common carriers to apply 
changes to any governmental or non-governmental charge beyond the 
carrier's control (e.g., terminal handling charges or canal tolls) 
effective on publication. 46 CFR 520.8(b)(4). But the Commission does 
not view VOCC GRIs as falling within this provision. A GRI is an 
adjustment to the base freight rate rather than a surcharge and may not 
become effective immediately on publication under Sec.  520.8(b)(4). 
While the Commission has treated VOCC GRIs as pass-through charges 
under the NVOCC NRA exemption from tariff rate publication, there is no 
corresponding provision in the Commission's regulations for cargo 
moving under tariffs. VOCCs and NVOCCs are common carriers in their 
relationship with their shippers. Therefore, like VOCCs, NVOCCs must 
also publish GRIs in their tariffs and provide 30 days' notice of the 
increase to their shippers, as required by the Commission's regulation 
at 46 CFR 520.8(a)(1). Additionally, common carriers, which include 
NVOCCs, must include in their tariffs all rates and charges, including 
the charges described in 46 CFR 520.8(b)(4). 46 CFR 520.3.
    The Commission is concerned that the widely varying interpretations 
and inappropriate application of so-called pass-through charges under 
common carrier tariffs may result in harm to shippers. The practice of 
some carriers to incorrectly pass-through charges could deny the 
shipper full transparency regarding the total freight charges that will 
apply to a shipment, as well as deprive the shipper of advance notice 
of any increase in those charges. The Commission, therefore, seeks 
responses to the following questions, as well as any additional 
information related to the public's experience with pass-through 
charges.
    1. For an ocean common carrier (VOCC), what are the typical charges 
that are not under its control and for which the ocean common carrier 
merely acts as a collection agent?
    2. For an ocean common carrier (VOCC), how does its tariff specify 
or address those charges for which it merely acts as a collection 
agent?
    3. For an NVOCC, what are the typical charges that are not under 
its control and for which the NVOCC merely acts as a collection agent?
    4. For an NVOCC, how does its tariff specify or address those 
charges for which it merely acts as a collection agent?
    5. How do common carriers communicate to shippers that the so-

[[Page 18243]]

called pass-through charges are for the account of shippers?
    6. How can shippers be assured that common carriers collect pass-
through charges without adding any mark-up?
    In your response, where possible, please include the carrier 
name(s) and the relevant tariff provisions.

III. Public Participation

How do I prepare and submit comments?

    Your comments must be written and in English. To ensure that your 
comments are correctly filed in the docket, please include the docket 
number of this document in your comments.
    You may submit your comments via email to the email address listed 
above under ADDRESSES. Please include the docket number associated with 
this notice and the subject matter in the subject line of the email. 
Comments should be attached to the email as a Microsoft Word or text-
searchable PDF document.

How do I submit confidential business information?

    The Commission will provide confidential treatment for identified 
confidential information to the extent allowed by law. If your comments 
contain confidential information, you must submit the following by 
email to the address listed above under ADDRESSES:
     A transmittal letter requesting confidential treatment 
that identifies the specific information in the comments for which 
protection is sought and demonstrates that the information is a trade 
secret or other confidential research, development, or commercial 
information.
     A confidential copy of your comments, consisting of the 
complete filing with a cover page marked ``Confidential-Restricted,'' 
and the confidential material clearly marked on each page.
     A public version of your comments with the confidential 
information excluded. The public version must state ``Public Version--
confidential materials excluded'' on the cover page and on each 
affected page and must clearly indicate any information withheld.

Will the Commission consider late comments?

    The Commission will consider all comments received before the close 
of business on the comment closing date indicated above under DATES. To 
the extent possible, we will also consider comments received after that 
date.

How can I read comments submitted by other people?

    You may read the comments received by the Commission at the 
Commission's Electronic Reading Room at the addresses listed above 
under ADDRESSES.
    In addition to soliciting the comments of regulated entities, the 
shipping public and supply chain stakeholders, the Commission 
encourages any interested party to comment on these questions and any 
experience they have related to these two issues.

    By the Commission.
Rachel E. Dickon,
Secretary.
[FR Doc. 2021-06128 Filed 4-7-21; 8:45 am]
BILLING CODE 6730-02-P