BILL NUMBER: AB 600 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 28, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
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 modify the term "intermodal marine
equipment provider" to become "intermodal equipment provider" and
would define this new term 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 . This bill
would also modify the circumstances under which an
intermodal marine equipment provider or an intermodal
marine terminal operator is prohibited from imposing per diem,
detention, or demurrage charges ,
or citations for parking violations . 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.
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.
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 that
unilateral termination, suspension, or restriction of
all of the following:
(1) That no party who is a signatory to
an interchange agreement involving intermodal marine equipment shall
unilaterally terminate, suspend, or restrict the equipment
interchange rights of an intermodal motor carrier shall not
result from intermodal terminal actions any other
party signatory to the same interchange agreement, as specified
in subdivision (b) this section .
(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.
(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.
(b) An intermodal marine equipment provider or
intermodal marine terminal operator shall not impose per
diem, detention, or demurrage diem or detention
charges on an intermodal motor carrier relative
relating to transactions involving cargo shipped by
intermodal marine transport under any of the following
circumstances:
(1) When the intermodal marine or terminal
truck gate is closed during posted normal working hours. No
per diem, detention, or demurrage charges shall be imposed
hours, including any gate closures that occur on a weekend
or holiday, or during a labor disruption period,
or during any other period involving an act of God
God, or any other planned or unplanned action that closes
the truck gate.
(2) When the intermodal marine terminal or intermodal marine
equipment provider decides to divert the return of equipment
from the point at which it was interchanged without 48 hours'
electronic or written notification to the intermodal 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 as
required in with Section 34505.9 of the Vehicle
Code or the equipment warrants being is
placed out of service.
(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)
(5) When the intermodal marine terminal is too
congested to safely or reasonably accept the container
intermodal marine equipment and the intermodal
marine terminal turns away the intermodal motor carrier.
(c) An intermodal marine equipment provider shall not
take any of the following actions:
(1) Charge back, deduct, or offset per diem or detention
charges, maintenance and repair charges, or peak hour pricing
from a an intermodal motor carrier's
freight bill.
(2) Unilaterally terminate, suspend, or restrict the equipment
interchange rights of a an intermodal
motor carrier or driver that uses
utilizes 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
by a motor carrier is resolved in the motor carrier's favor
is resolved, solely on the basis that the dispute
resolution process was utilized by the intermodal motor carrier
.
(3) Unilaterally terminate, suspend, or restrict the equipment
interchange rights of a an intermodal
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.
(4) Unilaterally terminate, suspend, or restrict the equipment
interchange rights of a motor carrier or driver for parking
ticketsissued
(d) 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:
(1) Require an intermodal motor carrier
to pay for any parking violation or to pay for any parking citation
issued by the marine terminal unless the tickets
remain citation remains unpaid more than 60 days
after being the intermodal motor carrier is
in actual physical receipt of the driver or motor
carrier 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 .
No parking tickets shall be issued by the marine terminal
to a driver or
(2) Issue a parking citation to an
intermodal motor carrier for a parking violation if the
assigned spot parking space at issue
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.
(3) Issue a parking violation citation more than five business
days after the date that the violation occurred.
(5) Willfully attempt to circumvent any provisions of this section
or to fail, for any reason other than
(e) (1) Other
than what is specified in an agreement or the
governing port tariff, to a party shall not
collect cargo demurrage when
unless it is due and payable and when
consistent in a manner that is consistent with
this section. An
(2) An intermodal motor carrier
shall not be liable for any portion of cargo demurrage
when an intermodal container is not picked up during free
time, which is the time period before demurrage charges are to be
applied that is solely for the account of
the beneficial owner or the owner's agent .
(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.
(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.
(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.
(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)
(f) As used in this chapter:
(1) "Per diem," or "detention," or "demurrage"
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
intermodal marine terminal shall have posted working
hours, and "closed" shall mean that the terminal is not open to
release or accept intermodal marine 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.
(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.
(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.
(5) "Intermodal marine terminal" means a marine
terminal location or facility that engages in discharging
or receiving intermodal marine equipment owned, operated,
or controlled by an intermodal marine equipment provider.
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.
(6) "Written or electronic notification" means any communication
by postal letter, facsimile, electronic mail, or other electronic
notification.
(7) "Intermodal marine equipment provider" means
any the party 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 providing intermodal marine
equipment to an intermodal motor carrier at an intermodal marine
terminal pursuant to the Uniform Intermodal Interchange and
Facilities Access Agreement or any other interchange agreement
.
(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.
SEC. 2 . 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.