NCBFAA Petitions FMC for NVOCC Rate Filing Exemption
The National Customs Brokers and Forwarders Association of America, Inc. has issued a press release announcing that on July 31, 2008, it filed a petition with the Federal Maritime Commission asking the agency to use its authority to exempt non-vessel operating common carriers (NVOCCs) from the requirements to establish, maintain, and publish rate tariffs.
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If NCBFAA's petition is granted, NVOCCs would no longer be required to publish in tariff form any rates negotiated with individual shippers as long as those agreed upon rates were somehow memorialized in written form that could range from a formal contract to a simple exchange of emails.
In its press release, NCBFAA notes that the published rate tariffs "are almost never reviewed or used by customers, that NVOCC rates are almost uniformly negotiated individually with individual customers and only later published in tariff form, and that the cost of tariff publication needlessly increases NVOCC costs, reducing their flexibility and competitiveness."
Description of NCBFAA's Requested Exemption
NCBFAA is requesting that NVOCCs be exempted from the provisions of the 1984 Shipping Act requiring NVOCCs to publish and/or adhere to rate tariffs for ocean transportation in those instances where they have individually negotiated rates with their shipping customers and memorialized those rates in writing.
NCBFAA's proposal incorporates the following principles:
The exemption would be voluntary, rather than mandatory. In other words, shippers or NVOCCs that preferred to continue to use published rate tariffs could continue to do so.
The exemption would relate only to rate tariffs; rules tariffs would still need to be published and maintained.
Negotiated NVOCC rates would from this point forward be governed solely by contract law considerations.
NVOCCs with NVOCC Service Agreements (NSAs) would continue to file those with the FMC.
To qualify, these negotiated rates would need to be documented.
The FMC's staff would continue to have access to these negotiated agreements and the files of NVOCCs.
The exemption would not be construed so as to convey antitrust immunity on NVOCCs.
The exemption would be applicable only for licensed or registered NVOCCs; companies unlawfully providing NVOCC services would not be able to properly engage in these activities.
(See ITT's Online Archives or 04/24/08 news, 08042405, for BP summary of FMC Commissioner Dye's comments that the FMC should consider tariff publication relief for NVOCCs and VOCCs.
See ITT's Online Archives or 10/03/07 news, 07100305, for BP summary of FMC Commissioner Dye's comments on NVOCC tariff publication, etc. at 2007 NCBFAA Government Affairs Conference.)
NCBFAA contact - Ed Greenberg (202) 342-5277
NCBFAA press release (dated 07/31/08) available by emailing documents@brokerpower.com.
NCBFAA petition available at http://www.ncbfaa.org/files/ncbfaatarriffexemption708.pdf.