[Federal Register Volume 86, Number 181 (Wednesday, September 22, 2021)]
[Proposed Rules]
[Pages 52627-52631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18878]


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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: Notice of proposed rulemaking.

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SUMMARY: The Federal Maritime Commission (FMC) proposes to modernize 
outdated requirements and clarify existing requirements associated with 
the filing of marine terminal operator (MTO) schedules.

DATES: Submit comments on or before November 22, 2021.
    In compliance with the Paperwork Reduction Act (PRA), the 
Commission is also seeking comment on revisions to an information 
collection. See the Paperwork Reduction Act section under Rulemaking 
Analyses and Notices below. Please submit all comments relating to the 
revised information collection requirements to the FMC and to the 
Office of Management and Budget (OMB) at the address listed below under 
ADDRESSES on or before November 22, 2021. Comments to OMB are most 
useful if submitted within 30 days after publication.

ADDRESSES: You may submit comments, identified by Docket No. 21-06, by 
emailing <a href="/cdn-cgi/l/email-protection#2655434554435247545f66404b4508414950"><span class="__cf_email__" data-cfemail="7102141203140510030831171c125f161e07">[email protected]</span></a>. For comments, include in the subject line: 
``Docket No. 21-06, Comments on Marine Terminal Operator Schedules 
Rulemaking.'' Comments should be attached to the email as a Microsoft 
Word or text-searchable PDF document. Comments regarding the proposed 
revisions to the relevant information collection should be submitted to 
the FMC through the method above and a copy should also be sent to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Attention: Desk Officer for Federal Maritime Commission, 725 
17th Street NW, Washington, DC 20503; by fax: (202) 395-5167; or by 
email: <a href="/cdn-cgi/l/email-protection#0f40465d4e505c7a6d62667c7c6660614f40424d214a405f21484059"><span class="__cf_email__" data-cfemail="145b5d46554b476176797d67677d7b7a545b59563a515b443a535b42">[email protected]</span></a>.

[[Page 52628]]

    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/21-06/.

FOR FURTHER INFORMATION CONTACT: Rachel E. Dickon, Secretary; Phone: 
(202) 523-5725; Email: <a href="/cdn-cgi/l/email-protection#93e0f6f0e1f6e7f2e1ead3f5fef0bdf4fce5"><span class="__cf_email__" data-cfemail="95e6f0f6e7f0e1f4e7ecd5f3f8f6bbf2fae3">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Regulations for the publication of terminal schedules by MTOs are 
set forth in 46 CFR part 525. Information made available under this 
part may be used to determine MTOs' compliance with shipping statutes 
and regulations.

II. Background

    Rules regarding MTO schedules are outlined in 46 CFR part 525. The 
regulations are limited to the optional publication of MTO schedules. 
Pursuant to part 525, a marine terminal operator, at its discretion, 
may make available to the public, subject to section 10(d) of the 
Shipping Act (46 U.S.C. 41102(c), 41103, 41106), a schedule of its 
rates, regulations, and practices. Part 525 also discusses the rules 
with respect to making terminal schedules available to the public. 
These regulations were scheduled to be reviewed in Fiscal Year 2020. 
The Commission proposes several changes to these regulations that are 
neither substantial nor policy related. Some provisions reference old 
names of a current Commission bureau or outdated technology used to 
gain access to MTO schedules. Other provisions have been clarified as 
deemed necessary or revised to be consistent with other parts of the 
Commission's regulations.

III. Discussion of Proposed Changes

    As discussed above, the proposed changes are non-policy related and 
the intent is 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.
    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 adds clarifying language to the 
definition of ``bulk cargo'' to show 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 
amends the definition of ``forest products'' to correct a typographical 
error.
    In addition, the proposed rule revises 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 adds 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 amends 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.''
    The proposed rule also introduces 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 renumbers 
paragraphs 525.1(c)(21) to (23) to be paragraphs 525.1(c)(22) to (24). 
Additionally, the proposed rule revises 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.''
    Section 525.2. The proposed rule does not revise section 525.2, 
Terminal Schedules.
    Section 525.3. With respect to part 525.3, Availability of marine 
terminal operator schedules, the proposed rule strikes outdated and 
unnecessary language relating to accessing electronically published MTO 
schedules. The proposed rule deletes the terms ``personal computer 
(PC),'' ``dial-up connection,'' ``the internet,'' ``Web browser,'' 
``Telnet session,'' ``modem,'' and any further definition or technical 
requirements relating to these terms. The proposed language also amends 
the term ``URL'' to mean ``uniform resource locator.'' The proposed 
rule deletes current paragraphs 525.3(c) and (e) regarding dial-up 
connection requirements and the Commission access as the technologies 
referenced in those paragraphs are obsolete.
    With the deletion of specific paragraphs as discussed above, the 
proposed rule renumbers 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 replaces ``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 
clarifies 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).
    Section 525.4. The proposed rule does not revise section 525.4.

IV. 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

[[Page 52629]]

allowed by law. If your comments contain confidential information, you 
must submit the following by email to the address listed above under 
ADDRESSES:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.

V. Regulatory Notices and Analysis

Regulatory Flexibility Act

    The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 
601-612) provides that whenever an agency is 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 an initial regulatory flexibility analysis (IRFA) 
describing the impact of the proposed 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. 603, 605. Based on the analysis below, the Chairman of the 
Federal Maritime Commission certifies that this proposed rule will not 
have a significant economic 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

    The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
4321-4347) requires Federal agencies to consider the environmental 
impacts of proposed major Federal actions significantly affecting the 
quality of the human environment, as well as the impacts of 
alternatives to the proposed action. When a Federal agency prepares an 
environmental assessment, the Council on Environmental Quality (CEQ) 
NEPA implementing regulations (40 CFR parts 1500 through 1508) require 
it to ``include brief discussions of the need for the proposal, of 
alternatives [. . .], of the environmental impacts of the proposed 
action and alternatives, and a listing of agencies and persons 
consulted.'' 40 CFR 1508.9(b). This section serves as the Commission's 
Draft Environmental Assessment (Draft EA) for the proposed changes to 
46 CFR part 525.
    This document sets forth the purpose of and need for this action. 
The purpose of this rulemaking is to modernize outdated requirements 
and clarify existing requirements associated with the filing of MTO 
schedules. The recommended changes are non-policy related and the 
intent is limited to modernizing outdated requirements and clarifying 
existing requirements and definitions to make them consistent with 
other parts of the Commission's regulations.
    The Commission has reviewed the information presented in this Draft 
EA and concludes that the proposed action and alternatives it may 
consider would have nothing more than de minimis impacts on the quality 
of the human environment. Based on the information in this Draft EA and 
assuming no additional information or changed circumstances, the 
Commission expects to issue a Finding of No Significant Impact (FONSI). 
Such a finding will be made only after careful review of all public 
comments received. A Final EA and a FONSI, if appropriate, will be 
issued as part of the final rule.

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 associated with the marine 
terminal operator schedules requirements in part 525 are currently 
authorized under OMB Control Number 3072-0061. The proposed rule does 
not make any changes to the option for MTOs to file MTO schedules with 
the Commission.
    In compliance with the PRA, the Commission has submitted the 
proposed revised information collection to the Office of Management and 
Budget and is requesting comment on the proposed revision.
    Title: 46 CFR part 525--Marine Terminal Operator Schedules and 
Related Form FMC-1.
    OMB Control Number: 3072-0061 (Expires April 30, 2024).
    Abstract: 46 U.S.C. 40501(f) provides that a marine terminal 
operator (MTO) may make available to the public a schedule of its 
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. The Commission's 
rules governing MTO schedules are set forth at 46 CFR part 525.
    Current Actions: The proposed rule would modernize outdated 
requirements and clarify existing requirements associated with the 
filing of MTO schedules.
    Type of Review: Revision of a previously approved collection.
    Needs and Uses: The Commission uses information obtained from Form 
FMC-1 to determine the organization name, organization number, home 
office address, name and telephone number of the firm's representatives 
and the location of MTO schedules of rates, regulations and practices, 
and publisher, should the MTOs determine to make their schedules 
available to the public, as set forth in section 8(f) of the Shipping 
Act.
    Frequency: This information is collected prior to an MTO's 
commencement of its marine terminal operations.
    Type of Respondents: Persons operating as MTOs.

[[Page 52630]]

    Number of Annual Respondents: The Commission estimates the 
respondent universe at 20, of which 10 opt to make their schedules 
available to the public.
    Estimated Time per Response: The time per response for completing 
Form FMC-1 averages 0.5 person-hours, and approximately 5 person-hours 
for related MTO schedules.
    Total Annual Burden: The Commission estimates the total annual 
person-hour burden at 60 person-hours.
    Comments are invited on:
    <bullet> Whether the collection of information is necessary for the 
proper performance of the functions of the Commission, including 
whether the information will have practical utility;
    <bullet> Whether the Commission's estimate for the burden of the 
information collection is accurate;
    <bullet> Ways to enhance the quality, utility, and clarity of the 
information to be collected;
    <bullet> Ways to minimize the burden of the collection of 
information on respondents, including the use of automated collection 
techniques or other forms of information technology.
    Please submit any comments, identified by the docket number in the 
heading of this document, by the methods described in the ADDRESSES 
section of this document.

Executive Order 12988 (Civil Justice Reform)

    This proposed 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, 
available 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 
proposing to amend 46 CFR part 525 as follows:

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), and (18);
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 datemeans 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

[[Page 52631]]

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 shall 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.
Rachel E. Dickon,
Secretary.
[FR Doc. 2021-18878 Filed 9-21-21; 8:45 am]
BILLING CODE 6730-02-P


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