FMC Announces Filing of NCBFAA NVOCC Tariff Exemption Petition
The Federal Maritime Commission has issued a notice announcing the filing of Petition P1-08, by NCBFAA, Inc. for an exemption from mandatory rate tariff publication.
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The National Customs Brokers and Forwarders Association of America is petitioning for an exemption from the provisions of the Shipping Act of 1984 that require non-vessel operating common carriers (NVOCCs) to publish and adhere to all ocean tariff rates.
Interested persons are requested to submit views or arguments in reply to the petition by September 26, 2008.
Description of NCBFAA's Requested Exemption
Specifically, NCBFAA is requesting that NVOCCs be exempted from the provisions of the 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.
According to the FMC, NCBFAA further clarifies its request by stating that:
- the exemption would be voluntary and apply only to rate tariffs;
- negotiated rates and related disputes would be governed by contract law and therefore exempt from the tariff publication, refund procedures, and other requirements of 49 USC 40501(a) - (e) and (g); 40503; and 41104(2), (4), and (8);
- NVOCC Service Arrangements would continued to be filed with the FMC and essential terms published;
- all NVOCC-negotiated rates would be memorialized in writing;
- the FMC would have access to documentation underlying negotiated rates;
- the exemption would not convey antitrust immunity on NVOCCs; and
- the exemption would apply to FMC-licensed or registered NVOCCs
If Petition is Granted, NVOCCs Would No Longer be Required to Publish Rates
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.
(See ITT's Online Archives or 08/04/08 news, 08080405, for BP summary of the NCBFAA petitioning the FMC for the NVOCC rate filing exemption.
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.)
FMC notice of filing of petition (P1-08, FR Pub 08/11/08) available at http://edocket.access.gpo.gov/2008/pdf/E8-18456.pdf
NCBFAA petition available at http://www.ncbfaa.org/files/ncbfaatarriffexemption708.pdf