On April 8, 2021, the Federal Maritime Commission (FMC) published a request for comments concerning identified inconsistencies in the way carriers are interpreting and applying certain aspects of the FMC's rules. See Notice, 86 FR 18240 (Apr. 8, 2021). The focus of the request is to obtain information and comments about (1) how carriers are imposing "access fees" on common carrier tariffs; and (2) how non-vessel-operating common carriers (NVOCCs) are applying "pass-through charges" under common carrier tariffs.
Tariff Access Fees
The FMC requests comments on the reasonableness of tariff access fees and whether carriers are imposing fees that impair the public's ability to access the information. The public may submit information related to their experiences with tariff access fees and what constitutes a reasonable charge for access.
Pass-through Charges
The FMC has become aware of the varying interpretations of what charges may be "passed through" to shippers without markup in connection with shipments moving under common carrier tariffs, particularly by NVOCCs. These differing interpretations can result in the inappropriate application of so-called pass-through charges under common carrier tariffs. Improper application of pass-through charges may result in harm to shippers, prohibit full transparency of total freight charges, and deprive shippers of advance notice of increased charges.
The FMC noted that NVOCCs appear to conflate the FMC's tariff regulations with its 2018 rulemaking, which expanded the flexibility of NVOCC Negotiated Rate Arrangements (NRAs) and NVOCC Service Arrangements (NSAs). NVOCCs are incorrectly marking charges such as General Rate Increases (GRIs) as pass-through charges for cargo moving under tariffs without publishing the GRIs in their tariffs and providing adequate notice of the increase to shippers. Unlike NVOCC NRAs, GRIs are not exempt from the FMC's tariff rate publication regulations.
The public may submit comments regarding typical pass-through charges, language used to specify pass-through charges in tariffs, and means for shippers to ensure that pass-through charges are not marked up.
If you are an industry stakeholder, including NVOCCs and vessel-operating common carriers (VOCCs), your experience is solicited by the FMC. All comments, whether public or business confidential, are due on or by June 7, 2021.
We continue to monitor developments associated with the FMC's review of access fees and pass-through charges. If you have any questions regarding how this recent action or related actions may affect your business, or if you are interested in submitting comments, please reach out to Venable's International Trade and Logistics Group for guidance.