On April 12, 2011, counsel for the National Customs Brokers and Forwarders Association of America ("NCBFAA" or "the Association") submitted a letter to the Federal Maritime Commission ("FMC") offering commentary and a request for a reopening of proceedings under Docket No. 10-03, Non-Vessel Operating Common Carrier Negotiated Rate Arrangements. Docket No. 10-03 resulted in a final rule which provided non-vessel operating common carriers ("NVOCCs") with an exemption from tariff publication requirements of the Shipping Act of 1984. Under the new regulations, NVOCCs may enter into Negotiated Rate Arrangements ("NRAs") with individual shippers without publishing and/or adhering to rate tariffs for ocean transportation While the NCBFAA letter applauded this final rule, the Association remarked that the "benefits of the exemption have been mitigated by the retention and/or imposition of unnecessary restrictions." In view of this, the Association asked that the FMC "reopen" the proceeding to "complete the job started by the final rule issued in this docket."
Whether the FMC may ultimately elect to reopen this proceeding is unclear. It appears unlikely due to the logistics and timing of the matter, given that the effective date of the final rule produced pursuant to Docket No. 10-03 is April 18th, 2011. This novel re-regulatory initiative by the FMC may result in a sea-change of business practices, including those of both U.S. and foreign-based NVOCCs and their shipper-customers. The move by the NCBFAA is bound to create a bit of uncertainty for the industry, just as the NRA rule is set to become live.
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