[Federal Register Volume 87, Number 52 (Thursday, March 17, 2022)]
[Rules and Regulations]
[Pages 15123-15125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05512]


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FEDERAL MARITIME COMMISSION

46 CFR Part 525

[Docket No. 21-06]
RIN 3072-AC87


Marine Terminal Operator Schedules

AGENCY: Federal Maritime Commission.

ACTION: Final rule.

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SUMMARY: This final rule adopts without substantive change the proposed 
rule. The Federal Maritime Commission (FMC or Commission) seeks to 
update outdated references to Commission offices, modernize references 
to technology, and clarify existing requirements associated with the 
filing of marine terminal operator (MTO) schedules.

DATES: This final rule is effective: April 18, 2022.

FOR FURTHER INFORMATION CONTACT: For technical questions, contact 
Kristen Monaco, Director, Bureau of Trade Analysis, Federal Maritime 
Commission, 800 North Capitol Street NW, Washington, DC 20573-0001. 
Phone: (202) 523-5796. Email: [email protected]. For legal 
questions, contact Steven Andersen, General Counsel, Federal Maritime 
Commission, 800 North Capitol Street NW, Washington, DC 20573-0001. 
Phone: (202) 523-5738. Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    Pursuant to 46 U.S.C. 40501(f), MTOs may make public a schedule of 
rates, regulations, and practice. Additionally, Congress directs the 
Commission to prescribe the form and manner in which MTO schedules 
shall be published. 46 U.S.C. 40501(g)(3). The Commission's regulations 
regarding MTO schedules are outlined in 46 CFR part 525. Consistent 
with the language in 46 U.S.C. 40501(f), part 525 states that an MTO, 
at its discretion, may make available to the public a schedule of its 
rates, regulations, and practices. Part 525 also discusses the 
requirements when an MTO decides to make terminal schedules available 
to the public.

II. Summary of Proposed Changes

    In Fiscal Year 2021, the Commission reviewed its regulations 
regarding MTO schedules found in 46 CFR part 525. On September 22, 
2021, the Commission issued a notice of proposed rulemaking that 
proposed several changes to part 525 that are neither substantive nor 
policy related. 86 FR 52627. The proposed revisions updated references 
to a Commission bureau and deleted references to outdated technology. 
Additionally, the FMC clarified definitions or revised them to be 
consistent with other parts of the Commission's regulations. The 
Commission requested comments on these proposed amendments.

III. Summary of Comments

    One shipper filed comments in this docket. However, these comments, 
which relate to per diem charges, detention and demurrage fees, and 
dual transaction requirements at specific terminals, do not address the 
proposed revisions to part 525. The commenter neither expressed support 
nor opposition to the proposed part 525 revisions. Because the issues 
raised by the commenter are outside the scope of the proposed 
amendments and the rulemaking, the FMC is not making changes to the 
final rule based on these comments. The FMC now adopts all of the 
proposed amendments without substantive change in this final rule.

IV. Final Rule

    The proposed rule contained revisions that were not policy related 
and the Commission's intent was limited to modernizing outdated 
requirements, clarifying existing requirements and definitions, and 
making the existing requirements and definitions consistent with other 
parts of the Commission's regulations. For the reasons stated in the 
NPRM and described below, the Commission is adopting the revisions in 
the proposed rule with non-substantive changes.

1. Section 525.1.

    The proposed rule revises references to the Shipping Act of 1984 
(the Act) to remove specific cites to the Ocean Shipping Reform Act of 
1998 and the Coast Guard Authorization Act of 1998 because several 
other laws also amend the Shipping Act of 1984. See An Act to Complete 
the Codification of Title 46, United States Code, ``Shipping,'' as 
Positive Law, Public Law 109-304, 120 Stat. 1485 (2006); Frank LoBiondo 
Coast Guard Authorization Act of 2018, Public Law 115-282, 132 Stat. 
4192 (2018). These revisions affect section 525.1(a) and (c)(1). The 
proposed rule added clarifying language to the definition of ``bulk 
cargo'' to explain that bulk ``containerized cargo tendered by the 
shipper'' is subject to mark and count and is, therefore, subject to 
the requirements of this part. The proposed rule amended the definition 
of ``forest products'' to correct a typographical error.
    In addition, the proposed rule revised the definition of ``marine 
terminal operator'' to mean ``a person engaged in the United States in 
the business of providing wharfage, dock, warehouse, or other terminal 
facilities in connection with a common carrier[.]'' This language is 
consistent with the statutory definition of an MTO. See 46 U.S.C. 
40102(15). The proposed rule also added language to clarify that 
shippers or consignees who exclusively provide their own marine 
terminal facilities in connection with providing marine terminal 
services are not MTOs.
    The proposed rule amended the definition of ``terminal facilities'' 
by adding ``docks, berths, piers, [and] aprons'' to the list of 
structures comprising a terminal unit. In addition, the proposed 
language replaces the term ``water carriers'' with ``ocean common 
carriers.'' As a result of these revisions, the definition of 
``terminal facilities'' is consistent with the definition of ``marine 
terminal facilities'' in 46 CFR part 535.
    The proposed rule also introduced a definition for the ``United 
States'' that is consistent with the definition found in 46 U.S.C. 114. 
To accommodate the new paragraph, the proposed rule renumbered 
paragraphs 525.1(c)(21) to (23) to be paragraphs 525.1(c)(22) to (24). 
Additionally, the proposed rule revised the definition of an MTO to 
delete ``or a commonwealth, territory, or possession thereof,'' because 
those entities are now included in the definition of ``United States.''
    The comments received do not address these proposed revisions.
    The final rule adopts the revisions described above without change.

A. Section 525.2

    The proposed rule did not propose revisions to section 525.2. The 
comments do not address section 525.2. Thus, the final rule does not 
revise section 525.2.

B. Section 525.3

    With respect to section 525.3, Availability of marine terminal 
operator schedules, the proposed rule removed outdated and unnecessary 
language relating to accessing electronically published MTO schedules. 
The proposed rule deleted the terms ``personal computer (PC),'' ``dial-
up connection,'' ``the internet,'' ``Web browser,'' ``Telnet session,'' 
``modem,''

[[Page 15124]]

and any further definition or technical requirements relating to these 
terms. The proposed language also amended the term ``URL'' to mean 
``uniform resource locator.'' The proposed rule deleted current 
paragraphs 525.3(c) and (e) regarding dial-up connection requirements 
and Commission access as the technologies referenced in those 
paragraphs are obsolete.
    With the deletion of specific paragraphs as discussed above, the 
proposed rule renumbered the remaining paragraphs. With respect to 
current paragraph 525.3(f), the proposed rule replaces references to 
the ``Bureau of Tariffs, Certification and Licensing,'' which no longer 
exists, with the ``Bureau of Trade Analysis'' (BTA). In addition, the 
proposed rule also replaced ``name and telephone number of firm's 
representative'' with simply ``contact information for its 
representative.'' The proposed rule also clarifies that BTA has 
authority to accept submitted Form FMC-1 filings and revisions, and 
that the filings are pending until accepted.
    With respect to current paragraph 525.3(g), the proposed rule 
clarified that an MTO may make available to the public its schedules 
and that any such schedule made available to the public is enforceable 
by an appropriate court as an implied contract without proof of actual 
knowledge of its provisions. This language is consistent with 46 U.S.C. 
40501(f).

D. Section 525.4

    The proposed rule did not propose revisions to section 525.4. The 
comments do not address section 525.4. Thus, the final rule does not 
revise section 525.4.

V. Regulatory Notices and Analysis

Congressional Review Act

    The rule is not a ``major rule'' as defined by the Congressional 
Review Act, codified at 5 U.S.C. 801 et seq. The rule will not result 
in: (1) An annual effect on the economy of $100,000,000 or more; (2) a 
major increase in costs or prices; or (3) significant adverse effects 
on competition, employment, investment, productivity, innovation, or 
the ability of United States-based companies to compete with foreign-
based companies. 5 U.S.C. 804(2).

Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, provides that 
whenever an agency promulgates a final rule after being required to 
publish a notice of proposed rulemaking under the Administrative 
Procedure Act (APA), 5 U.S.C. 553, the agency must prepare and make 
available for public comment a final regulatory flexibility analysis 
describing the impact of the rule on small entities, unless the head of 
the agency certifies that the rulemaking will not have a significant 
economic impact on a substantial number of small entities. 5 U.S.C. 
604, 605. Accordingly, the Chairman of the Federal Maritime Commission 
certifies that the final rule will not have a significant impact on a 
substantial number of small entities. The regulated business entities 
that would be impacted by the rule are marine terminal operators. The 
Commission has determined that marine terminal operators generally do 
not qualify as small entities under the guidelines of the Small 
Business Administration (SBA). See FMC Policy and Procedures Regarding 
Proper Consideration of Small Entities in Rulemakings (Feb. 7, 2003), 
available at https://www.fmc.gov/wp-content/uploads/2018/10/SBREFA_Guidelines_2003.pdf.

National Environmental Policy Act

    Upon completion of an environmental assessment, it was determined 
that the proposed rule will not constitute a major Federal action 
significantly affecting the quality of the human environment within the 
meaning of the National Environmental Policy Act of 1969, 42 U.S.C. 
4321 et seq., and that preparation of an environmental impact statement 
is not required. This FONSI will become final within 10 days of 
publication of this notice in the Federal Register unless a petition 
for review is filed by any of the methods described in the ADDRESSES 
section of the document. The FONSI and environmental assessment are 
available for inspection at the Commission's Electronic Reading Room 
at: https://www2.fmc.gov/readingroom/proceeding/21-06/.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA) 
requires an agency to seek and receive approval from the Office of 
Management and Budget (OMB) before collecting information from the 
public. 44 U.S.C. 3507. The agency must submit collections of 
information in proposed rules to OMB in conjunction with the 
publication of the notice of proposed rulemaking. 5 CFR 1320.11.
    The information collection requirements in Part 525, Marine 
Terminal Operator Schedules, are currently authorized under OMB Control 
Number 3072-0061. In compliance with the PRA, the Commission submitted 
the proposed revised information collections to the Office of 
Management and Budget. Notice of the revised information collections 
was published in the Federal Register and public comments were invited. 
See 86 FR 52627 (September 22, 2021). Comments received regarding the 
proposed changes are discussed above. No comments specifically 
addressed the information collected pursuant to part 525 and no changes 
were made in the final rule due to public comments.
    The final rule updates a reference to a Commission bureau and 
deletes references to outdated technology. In addition, the final rule 
clarifies definitions as necessary or revises them to be consistent 
with other parts of the Commission's regulations. The final rule does 
not substantively impact the information collected pursuant to part 
525.

Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards in E.O. 12988 titled, 
``Civil Justice Reform,'' to minimize litigation, eliminate ambiguity, 
and reduce burden. Section 3(b) of E.O. 12988 requires agencies to make 
every reasonable effort to ensure that each new regulation: (1) Clearly 
specifies the preemptive effect; (2) clearly specifies the effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct, while promoting simplification and burden 
reduction; (4) clearly specifies the retroactive effect, if any; (5) 
adequately defines key terms; and (6) addresses other important issues 
affecting clarity and general draftsmanship under any guidelines issued 
by the Attorney General. This document is consistent with that 
requirement.

Regulation Identifier Number

    The Commission assigns a regulation identifier number (RIN) to each 
regulatory action listed in the Unified Agenda of Federal Regulatory 
and Deregulatory Actions (Unified Agenda). The Regulatory Information 
Service Center publishes the Unified Agenda in April and October of 
each year. You may use the RIN contained in the heading at the 
beginning of this document to find this action in the Unified Agenda, 
at http://www.reginfo.gov/public/do/eAgendaMain.

List of Subjects in 46 CFR Part 525

    Marine Terminal Operator Schedules.

    For the reasons set forth above, the Federal Maritime Commission is 
amending 46 CFR part 525 as follows:

[[Page 15125]]

PART 525--MARINE TERMINAL OPERATOR SCHEDULES

0
1. The authority citation for part 525 continues to read as follows:

    Authority: 46 U.S.C. 40102, 40501, 41101-41106.

0
2. Amend Sec.  525.1 by:
0
a. Revising paragraphs (a) and (c)(1), (2), (7), (8), (13), (18), and 
(19);
0
b. Redesignating paragraphs (c)(21) through (23) as paragraphs (c)(22) 
through (24); and
0
c. Adding a new paragraph (c)(21).

    The revisions and addition read as follows:


Sec.  525.1  Purpose and scope.

    (a) Purpose. This part implements the Shipping Act of 1984, as 
amended (46 U.S.C. 40101-41309). The requirements of this part are 
necessary to enable the Commission to meet its responsibilities with 
regard to identifying and preventing unreasonable preference or 
prejudice and unjust discrimination pursuant to section 10 of the Act 
(46 U.S.C. 41101-41106).
* * * * *
    (c) * * *
    (1) Act means the Shipping Act of 1984, as amended.
    (2) Bulk cargo means cargo that is loaded and carried in bulk 
without mark or count, in a loose unpackaged form, having homogenous 
characteristics. Bulk containerized cargo tendered by the shipper is 
subject to mark and count and is, therefore, subject to the 
requirements of this part.
* * * * *
    (7) Expiration date means the last day after which the entire 
schedule or a single element of the schedule, is no longer in effect.
    (8) Forest products means forest products including, but not 
limited to, lumber in bundles, rough timber, ties, poles, piling, 
laminated beams, bundled siding, bundled plywood, bundled core stock or 
veneers, bundled particle or fiber boards, bundled hardwood, wood pulp 
in rolls, wood pulp in unitized bales, paper and paper board in rolls 
or in pallet or skid-sized sheets, liquid or granular by-products 
derived from pulping and papermaking, and engineered wood products.
* * * * *
    (13) Marine terminal operator means a person engaged in the United 
States in the business of providing wharfage, dock, warehouse or other 
terminal facilities in connection with a common carrier, or in 
connection with a common carrier and a water carrier subject to 
Subchapter II of Chapter 135 of Title 49, United States Code. A marine 
terminal operator includes, but is not limited to, terminals owned or 
operated by states and their political subdivisions; railroads who 
perform port terminal services not covered by their line haul rates; 
common carriers who perform port terminal services; and warehousemen 
who operate port terminal facilities. For the purposes of this part, 
marine terminal operator includes conferences of marine terminal 
operators. This term does not include shippers or consignees who 
exclusively provide their own marine terminal facilities in connection 
with tendering or receiving proprietary cargo from a common carrier or 
water carrier.
* * * * *
    (18) Terminal facilities means one or more structures comprising a 
terminal unit, which include, but are not limited to docks, berths, 
piers, aprons, wharves, warehouses, covered and/or open storage spaces, 
cold storage plants, cranes, grain elevators and/or bulk cargo loading 
and/or unloading structures, landings, and receiving stations, used for 
the transmission, care and convenience of cargo and/or passengers in 
the interchange of same between land and ocean common carriers or 
between two ocean common carriers.
* * * * *
    (21) United States means the States of the United States, the 
District of Columbia, Guam, Puerto Rico, the Virgin Islands, American 
Samoa, the Northern Mariana Islands, and any other territory or 
possession of the United States.
* * * * *

0
3. Amend Sec.  525.3 by revising paragraphs (b) through (e) to read as 
follows:


Sec.  525.3  Availability of marine terminal operator schedules.

* * * * *
    (b) Access to electronically published schedules. Marine terminal 
operators shall provide access to their terminal schedules via the 
internet.
    (c) Internet connection. (1) The internet connection requires that 
systems provide a uniform resource locator (URL) internet address 
(e.g., http://www.tariffsrus.com or http://1.2.3.4).
    (2) Marine terminal operators shall ensure that their internet 
service providers provide static internet addresses.
    (d) Notification. Each marine terminal operator shall notify the 
Commission's Bureau of Trade Analysis (BTA), prior to the commencement 
of marine terminal operations, of its organization name, home office 
address, contact information for its representative, the location of 
its terminal schedule(s), and the publisher, if any, used to maintain 
its terminal schedule, by electronically submitting Form FMC-1 via the 
Commission's website at www.fmc.gov. Any changes to the above 
information shall be immediately transmitted to BTA within 30 calendar 
days. BTA has the authority to accept submitted Form FMC-1 filings and 
revisions. Form FMC-1 filings are pending until accepted. The 
Commission will publish, on its website, the location of any terminal 
schedule made available to the public.
    (e) Form and manner. A marine terminal operator may make available 
to the public a schedule of rates, regulations, and practices, 
including limitations of liability for cargo loss or damage, pertaining 
to receiving, delivering, handling, or storing property at its marine 
terminal. Any such schedule made available to the public is enforceable 
by an appropriate court as an implied contract without proof of actual 
knowledge of its provisions. Each terminal schedule made available by a 
marine terminal operator shall contain an individual identification 
number, effective date, expiration date, if any, and the terminal 
schedule in full text and/or data format showing the relevant rates, 
charges, and regulations relating to or connected with the receiving, 
handling, storing, and/or delivering of property at its terminal 
facilities.
* * * * *

    By the Commission.
William Cody,
Secretary.
[FR Doc. 2022-05512 Filed 3-16-22; 8:45 am]
BILLING CODE 6730-02-P