Page 8: of Marine News Magazine (May 2025)

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Column

Washington Watch

U.S. NON-CONTIGUOUS DOMESTIC TRADE:

Barge, Inland and Water Transportation

By J. Philip Nester, Senior Managing Associate with the Transportation & Logistics Practice, Benesch Law

The U.S. inland waterway system iff publication and annual certi? cation under 49 U.S.C. is a critical and underutilized component of the domestic §§ 13701-02, signals a similar trend toward digitization as supply chain that serves non-contiguous markets originat- seen with other regulatory agencies, which has clear com- ing in or destined for Alaska, Hawaii, and U.S. territories pliance implications for shippers and service providers.

and possessions. For transportation service providers and shippers that operate in the domestic trade of the U.S., STB Compliance: Tariffs ocean carriers, barge operators, and inland waterway pro- Legal compliance in waterborne transportation hinges viders can offer cost-effective scalable alternatives to the on the tariff publication requirement. Pursuant to 46 CFR traditional surface and air modes that connect these re- § 1312.3(a), all published tariffs for services subject to the gions to the U.S. mainland. jurisdiction of the STB must: (i) be ? led in English; (ii) in-

Non-contiguous domestic trade involves a legal and op- clude an accurate description of the services offered to the erational framework that is complex and shaped by multi- public; (iii) provide the speci? c applicable rates explicitly agency oversight, legacy statutes, and evolving operational stated in USD and service terms; and (iv) be arranged in a realities that involve the Surface Transportation Board way that allows for the determination of the exact rate(s) (STB), the U.S. Army Corps of Engineers (USACE), and and service terms applicable to any given shipment. The the Maritime Administration (MARAD). To navigate STB permits carriers under 46 CFR § 1312.3(a) to elec- these complexities, prospective market participants will tronically publish and maintain tariffs on the websites or bene? t an understanding of the interplay between these third-party vendor hosting sites.

legal, regulatory, and operational schemes, as this remains Indeed, the STB requires carriers to maintain and make a pathway for shippers and service providers to diver- publicly available their tariffs, which must include appli- sify their domestic supply chains and expand capacity to cable rates, charges, and other operational terms. 49 CFR strengthen their operational resilience, particularly when Part 1312. The only stated exception to this publishing other modes face broad service disruptions. requirement is if a carrier provides transport for charitable purposes. Otherwise, carriers can only perform services in

STB Jurisdiction the non-contiguous domestic trade “if the rates, and re-

The STB has jurisdiction over waterborne transporta- lated rules and practices, for such transportation or service tion in the non-contiguous domestic trade of the U.S., are contained in a published tariff that is on ? le with the even if a particular shipment moves through international Board and in effect[.]” 46 CFR § 1312.2(a). A carrier that waters. 49 U.S.C. § 13521. Stakeholders may see this as a fails to appreciate and comply with its tariff publication benign authority, but recent STB rulemaking activity sug- (and amendment) obligations, particularly where inter- gests there is a broader regulatory structure on the horizon. modal movements are implicated, create the potential for

The agency’s 2019 rulemaking that requires electronic tar- agency enforcement or even suspension or revocation of 8 | MN May 2025