California Assembly Bill AB600 Amended / Bill

 BILL NUMBER: AB 600AMENDED 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.