Amended in Assembly May 28, 2013

Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 600

Introduced by Assembly Member Bonta

February 20, 2013

An act to amend Section 22928 of the Business and Professions Code, relating to business.

LEGISLATIVE COUNSEL’S DIGEST

AB 600, as amended, Bonta. Intermodal marine terminals.

Existing law prohibits an intermodal marine equipment provider or marine terminal operator from imposing per diem, detention, or demurrage charges, as defined, on an intermodal motor carrier relative to transactions involving cargo shipped by intermodal transport under certain circumstances. Existing law also prohibits an intermodal marine equipment provider from terminating, suspending, or restricting equipment interchange rights of a motor carrier for specified reasons and from charging back, deducting, or offsetting per diem or certain other charges from the motor carrier’s freight bill.

This bill would begin delete modify the term “intermodal marine equipment provider” to become “intermodal equipment provider” and would define this new term end delete begin insert recast these provisions to prohibit a party signatory to an interchange agreement involving intermodal marine equipment from unilaterally terminating, suspending, or restricting the equipment interchange rights of any other signatory to the same interchange agreement end insert . This bill would begin delete also end delete modify the circumstances under which an intermodal begin insert marine end insert equipment provider or an intermodal marine terminal operator is prohibited from imposing per diem, detention, begin delete or end delete demurrage charges begin insert , or citations for parking violations end insert . begin delete This bill would prohibit an intermodal equipment provider from requiring a motor carrier to return intermodal equipment to a location other than the physical location at which the equipment was received, as specified. end delete

begin insert

This bill would specify that an “intermodal marine terminal” does not include a railroad, warehouse, or any other domestic terminal facility that may handle intermodal marine equipment, but where cargo shipped by intermodal marine transport is not transferred to or from ocean-going vessels. The bill would declare that certain of its provisions are not a change in, but are declaratory of, existing law.

end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 22928 of the Business and Professions
Code is amended to read:

22928.  

(a) The Legislature finds and declares begin delete that unilateral
termination, suspension, or restriction of end delete begin insert all of the following: end insert

begin insert (1) end insert begin insert   end insert begin insert That no party who is a signatory to an interchange
agreement involving intermodal marine equipment shall
unilaterally terminate, suspend, or restrict the end insert equipment
interchange rights of begin delete an intermodal motor carrier shall not result
from intermodal terminal actions end delete begin insert any other party signatory to the
same interchange agreement, end insert as specified in begin delete subdivision (b) end delete begin insert this
section end insert .

begin insert

(2) Nothing in this section shall restrict any parties from
entering into contracts with enforceable contractual and
commercial terms to provide drayage services if the contract is
consistent with Part 2 (commencing with Section 1549) of Division
3 of Civil Code.

end insert begin insert

(3) If the parties to a contract to provide drayage services are
mutual signatories to an interchange agreement, then the terms
of that agreement are binding except to the extent that they
otherwise conflict with this section, other provisions of law, or
otherwise by agreement of the contracting parties.

end insert

(b) An intermodal begin insert marine end insert equipment provider or intermodal
marine terminal operator shall not impose per begin delete diem, detention, or
demurrage end delete begin insert diem or detention end insert charges on an intermodal motor
carrier begin delete relative end delete begin insert relating end insert to transactions involving cargo shipped by
intermodal begin insert marine end insert transport under any of the following
circumstances:

(1) When the intermodal marine begin delete or end delete terminal truck gate is closed
during posted normal working begin delete hours. No per diem, detention, or
demurrage charges shall be imposed end delete begin insert hours, including any gate
closures that occur end insert on a weekend or holiday, begin delete or end delete during a labor
disruption period, or during any other period involving an act of
begin delete God end delete begin insert God, end insert or any other planned or unplanned action that closes the
truck gate.

(2) When the intermodal marine terminal begin insert or intermodal marine
equipment provider end insert decides to divert the return of equipment from
the point at which it was interchanged without 48 hours’ electronic
or written notification to the begin insert intermodal end insert motor carrier having
possession of the equipment.

(3) When the intermodal marine terminal is assessed a fine
pursuant to Section 40720 of the Health and Safety Code.

(4) When the intermodal equipment is not compliant begin delete as required
in end delete begin insert with end insert Section 34505.9 of the Vehicle Code or begin delete the equipment
warrants being end delete begin insert is end insert placed out of service.

begin delete

(5) When a loaded container or the chassis on which it is
mounted is not available for pickup when the motor carrier arrives
at the intermodal marine terminal.

(6)

end delete

begin insert (5) end insert  When the intermodal marine terminal is too congested to
safely or reasonably accept the begin delete container end delete begin insert intermodal marine
equipment end insert and the intermodal marine terminal turns away the
begin insert intermodal end insert motor carrier.

(c) An intermodal begin insert marine end insert equipment provider shall not take any
of the following actions:

(1) Charge back, deduct, or offset per diem begin insert or detention end insert charges,
maintenance and repair charges, or peak hour pricing from begin delete a end delete begin insert an
intermodal end insert motor carrier’s freight bill.

(2) Unilaterally terminate, suspend, or restrict the equipment
interchange rights of begin delete a end delete begin insert an intermodal end insert motor carrier begin delete or driver end delete that
begin delete uses end delete begin insert utilizes end insert the dispute resolution process contained in the Uniform
Intermodal Interchange and Facilities Access Agreement to contest
a charge, fee, or fine, including a charge for maintenance and
repairs imposed by the intermodal marine terminal, while the
dispute resolution process is ongoing or after a challenge begin delete by a
motor carrier is resolved in the motor carrier’s favor end delete begin insert is resolved,
solely on the basis that the dispute resolution process was utilized
by the intermodal motor carrier end insert .

(3) Unilaterally terminate, suspend, or restrict the equipment
interchange rights of begin delete a end delete begin insert an intermodal end insert motor carrier for late payment
of an undisputed invoice from the intermodal marine terminal,
provided that the payment is no more than 60 days late.

begin delete

(4) Unilaterally terminate, suspend, or restrict the equipment
interchange rights of a motor carrier or driver for parking
ticketsissued

end delete

begin insert (d) end insert begin insert   end insert begin insert Except as otherwise included in a terminal tariff agreement
filed with the federal Maritime Commission, an intermodal marine
terminal shall not take any of the following actions: end insert

begin insert (1) end insert begin insert   end insert begin insert Require an intermodal motor carrier to pay for any parking
violation or to pay for any parking citation issued end insert by the marine
terminal unless the begin delete tickets remain end delete begin insert citation remains end insert unpaid more
than 60 days after begin delete being end delete begin insert the intermodal motor carrier is end insert in actual
physical receipt of the begin delete driver or motor carrier end delete begin insert citation. For the
purposes of this subdivision, delivery by certified mail or other
recorded delivery service shall constitute evidence that the
intermodal motor carrier is in actual physical custody of a parking
violation citation end insert . begin delete No parking tickets shall be issued by the marine
terminal to a driver or end delete

begin insert (2) end insert begin insert   end insert begin insert Issue a parking citation to an intermodal end insert motor carrier for
a parking violation if the assigned begin delete spot end delete begin insert parking space at issue end insert was
occupied and the trouble window or terminal administration was
unable to immediately provide a place to park, or if the driver was
instructed to park the equipment in a different spot by marine
terminal personnel or security.

begin insert

(3) Issue a parking violation citation more than five business
days after the date that the violation occurred.

end insert begin delete

(5) Willfully attempt to circumvent any provisions of this section
or to fail, for any reason other than

end delete

begin insert (e) end insert begin insert   end insert begin insert (1) end insert begin insert   end insert begin insert Other than end insert what is specified in begin insert an agreement or end insert the
governing port tariff, begin delete to end delete begin insert a party shall not end insert collect begin insert cargo end insert demurrage
begin delete when end delete begin insert unless it is end insert due and payable begin delete and when consistent end delete begin insert in a manner
that is consistent end insert with this section. begin delete An end delete

begin insert (2) end insert begin insert   end insert begin insert An end insert intermodal motor carrier shall not be liable for any
portion of begin insert cargo end insert demurrage begin delete when an intermodal container is not
picked up during free time, which is the time period before
demurrage charges are to be applied end delete begin insert that is solely for the account
of the beneficial owner or the owner’s agent end insert .

begin insert

(3) Except as otherwise agreed to in writing, an intermodal
motor carrier shall not be required by a cargo owner, or an
owner’s agent, to pick up a loaded container that has any
outstanding cargo charges, including, but not limited to, demurrage
charges.

end insert begin insert

(4) Commencing January 1, 2015, an intermodal marine
terminal shall require that any outstanding cargo charges,
including, but not limited to, all cargo demurrage charges, imposed
relative to transactions involving intermodal marine cargo be paid
electronically by the responsible party, or that party’s agent, before
a container is released.

end insert begin insert

(5) If a loaded container is not made available for pickup when
an intermodal motor carrier arrives at the intermodal marine
terminal, and all current charges have been paid as set forth in
paragraph (4), the intermodal marine terminal operator shall not
impose any further cargo demurrage charges on the intermodal
motor carrier.

end insert begin delete

(6) Require a motor carrier to return intermodal equipment to
a location other than the physical location at which the equipment
was received, unless the intermodal equipment provider directs,
reasonably in advance of the commencement of the chargable
demurrage, the equipment to be returned to a satellite location as
governed by a written bilateral agreement between the intermodal
equipment provider and the motor carrier. An intermodal
equipment provider shall not unilaterally require a motor carrier
to return intermodal equipment to a satellite location by notifying
a motor carrier through a posting on an Internet Web site, electronic
mail, shipping order, or any method of communication not
specified in the written bilateral agreement between the intermodal
equipment provider and the motor carrier.

(d)

end delete

begin insert (f) end insert  As used in this chapter:

(1) “Per diem,” begin insert or end insert “detention,” begin delete or “demurrage” end delete means a charge
imposed by an equipment provider or marine terminal operator
for late return or pickup of an empty or a loaded intermodal
container and chassis.

(2) “Closed” means not open or available to receive equipment.
The begin insert intermodal end insert marine terminal shall have posted working hours,
and “closed” shall mean that the terminal is not open to release or
accept begin insert intermodal marine end insert equipment during those posted working
hours.

(3) “Divert equipment” means the motor carrier has been
directed to return the equipment to a location different from the
location where the equipment was picked up by the motor carrier.

begin delete

(4) “Shall not impose per diem, detention, or demurrage charges
on an intermodal carrier” shall apply to the day or days in question
that an occurrence referenced in subdivision (b) took place.

end delete begin insert

(4) “Intermodal marine equipment” means equipment commonly
used in the road transport of intermodal cargo by an intermodal
motor carrier to or from an intermodal marine terminal, including
trailers, chassis, containers, and associated devices, but excluding
tractors.

end insert

(5)  “Intermodal marine terminal” means a begin delete marine end delete terminal
location or facility that engages in discharging or receiving
begin insert intermodal marine end insert equipment owned, operated, or controlled by
an begin insert intermodal marine end insert equipment provider. begin insert This definition does
not apply to any railroad, warehouse, or any other domestic
terminal facility that may handle intermodal marine equipment,
but where cargo shipped by intermodal marine transport is not
transferred to or from ocean-going vessels. end insert

(6) “Written or electronic notification” means any
communication by postal letter, facsimile, electronic mail, or other
electronic notification.

(7) “Intermodal begin insert marine end insert equipment provider” means begin delete any end delete begin insert the end insert
party begin delete authorizing delivery or receipt of physical possession of
equipment with a motor carrier commonly used in the road
transport of intermodal freight, including, but not limited to,
trailers, chassis, containers, and associated devices, but excluding,
tractors. This definition applies to all intermodal equipment
providers, regardless of whether the party participates in end delete begin insert providing
intermodal marine equipment to an intermodal motor carrier at
an intermodal marine terminal pursuant to end insert the Uniform Intermodal
Interchange and Facilities Access Agreement begin insert or any other
interchange agreement end insert .

begin insert

(8) “Cargo demurrage” means a charge including, but not
limited to, any “wharf demurrage” applied against cargo that
results from the storage of the cargo on an intermodal terminal
beyond the end of the allowable free time as established by tariff
or agreement.

end insert

begin insert

begin insert SEC. 2 end insert begin insert . end insert   

end insert

begin insert The amendment of subdivision (b) of Section 22928 of
the Business and Professions Code made by Section 1 of this act
does not constitute a change in, but is declaratory of, existing law
relative to the prohibition on the imposition of per diem and
retention charges by intermodal marine equipment providers in
the instances identified therein. end insert