[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Proposed Rules]
[Pages 80866-80867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33007]


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FEDERAL MARITIME COMMISSION

46 CFR Part 532

[Docket No. 11-22]


Non-Vessel-Operating Common Carriers Negotiated Rate 
Arrangements; Tariff Filing Exemption

AGENCY: Federal Maritime Commission.

ACTION: Notice of Inquiry.

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SUMMARY: The Federal Maritime Commission is issuing this Notice of 
Inquiry seeking comments on ways to make the tariff filing exemption 
provided to licensed non-vessel-operating common carriers in its 
regulations more useful, including its possible extension to foreign-
based non-vessel-operating common carriers not licensed by the Federal 
Maritime Commission.

DATES: Comments are due on or before March 26, 2012.

ADDRESSES: Submit comments to: Karen V. Gregory, Secretary, Federal 
Maritime Commission, 800 North Capitol Street NW., Washington, DC 
20573-0001, or email non-confidential comments to: [email protected] 
(email comments as attachments preferably in Microsoft Word or PDF).

FOR FURTHER INFORMATION CONTACT: Karen V. Gregory, Secretary, Federal 
Maritime Commission, 800 N. Capitol Street NW., Washington, DC 20573-
0001. (202) 523-5725, Fax (202) 523-0014, Email: [email protected], 
Rebecca A. Fenneman, General Counsel; Federal Maritime Commission, 800 
N. Capitol Street, NW., Washington, DC 20573-0001, (202) 523-5740, Fax 
(202) 523-5738, Email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On July 31, 2008, the National Customs Brokers and Forwarders 
Association of America, Inc. (NCBFAA) filed a petition (Petition) with 
the Federal Maritime Commission (FMC or Commission), seeking an 
exemption from provisions of the Shipping Act of 1984 (the Act) 
requiring non-vessel-operating common carriers (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 
Petition at 10. Notice of the Petition was published on August 11, 
2008, with comments due by September 26, 2008. Petition No. P1-08, 
Petition of the National Customs Brokers and Freight Forwarders 
Association of America, Inc. for Exemption from Mandatory Rate Tariff 
Publication, 73 FR 46625-02 (August 11, 2008). The Commission 
considered the petition and comments at a meeting on February 18, 2010, 
and, by a 3-1 vote, determined to initiate a rulemaking to relieve 
licensed NVOCCs from the costs and burdens of rate tariff publication. 
On May 7, 2010, the Commission issued a notice of proposed rulemaking 
(NPR), pursuant to its authority under sections 16 and 17 of the Act, 
46 U.S.C. 40103 and 46 U.S.C. 305, seeking comments on a proposal to 
exempt licensed NVOCCs from the rate publication requirements of the 
Shipping Act, subject to certain conditions. Docket No. 10-03, 75 FR 
25151 (May 7, 2010). Additionally, the Commission requested interested 
parties to submit comments on whether the exemption should be extended 
to foreign-based NVOCCs who are unlicensed but bonded pursuant to 46 
CFR 515.21(a)(3). On March 2, 2011, after consideration of the comments 
received in response to the NPR, the Commission issued a final rule, 
effective April 18, 2011, promulgating 46 CFR Part 532, which exempted 
licensed NVOCCs from their tariff rate publication obligations when 
entering into a ``negotiated rate arrangement'' (NRA).\1\
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    \1\ An NRA is defined as ``a written and binding arrangement 
between a shipper and an eligible NVOCC to provide specific 
transportation service for a stated cargo quantity, from origin to 
destination, on and after the receipt of the cargo by the carrier or 
its agent (or the originating carrier in the case of through 
transportation).'' 46 CFR 532.3(a). An NVOCC's use of NRAs is 
subject to several conditions, including (1) NVOCCs who use NRAs are 
required to continue publishing standard rules tariffs containing 
contractual terms and conditions governing shipments, including any 
accessorial charges and surcharges, and are required to make their 
rules tariffs available to shippers free of charge; (2) NRA rates 
charged by NVOCCs must be mutually agreed and memorialized in 
writing by the date cargo is received for shipment; and (3) NVOCCs 
who use NRAs must retain documentation confirming the agreed rate 
and terms for each shipment for a period of five years, and must 
make such documentation promptly upon request available to the 
Commission pursuant to the Commission's regulations at 46 CFR 
515.31(g).
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    The final rule did not extend the exemption to foreign-based 
unlicensed NVOCCs due to concerns by Commission Staff that to do so 
could harm the agency's mission to protect the shipping public. See 76 
FR 11355-11357. The final rule noted that:

    At this time, Commissioners hold differing views on the concerns 
the Staff has raised, and on the relevance and weight those concerns 
should be given in the Commission's decision whether or not to 
extend the exemption to foreign unlicensed NVOCCs. Accordingly, the 
Commission will move forward with the current rule as proposed for 
licensed NVOCCs, but as noted above, will commence proceedings to 
obtain and consider additional public comment on potential 
modifications to the final rule, including possible extension of the 
exemption to include foreign unlicensed NVOCCs. The record in this 
proceeding will be incorporated into the new Commission proceeding. 
76 FR 11357.

    NVOCCs have now been able to use NRAs for more than six months. In 
accordance with the statements in the final rule, the Commission now 
invites comment and information from all members of the interested 
public (whether they be located in the United States or elsewhere), 
including ocean common carriers, ocean transportation intermediaries, 
exporters, and beneficial cargo owners, on ways to make the exemption 
more useful, including possible extension of the exemption to include 
foreign unlicensed NVOCCs. Comments that are specific and provide 
supporting data are most helpful. The

[[Page 80867]]

record in Docket 10-03 is incorporated into this proceeding.

Submit Comments

    Non-confidential filings may be submitted in hard copy or by email 
as an attachment (preferably in Microsoft Word or PDF) addressed to 
[email protected] on or before March 26, 2012. Include in the subject 
line: ``Negotiated Rate Arrangements--Response to NOI.'' Confidential 
filings must be submitted in the traditional manner on paper, rather 
than by email. Comments submitted that seek confidential treatment must 
be submitted in hard copy by U.S. mail or courier. Confidential filings 
must be accompanied by a transmittal letter that identifies the filing 
as ``confidential'' and describes the nature and extent of the 
confidential treatment requested. When submitting comments in response 
to the Notice of Inquiry that contain confidential information, the 
confidential copy of the filing must consist of the complete filing and 
be marked by the filer as ``Confidential-Restricted,'' with the 
confidential material clearly marked on each page. When a confidential 
filing is submitted, an original and one additional copy of the public 
version of the filing must be submitted. The public version of the 
filing should exclude confidential materials, and be clearly marked on 
each affected page, ``confidential materials excluded.'' The Commission 
will provide confidential treatment to the extent allowed by law for 
those submissions, or parts of submissions, for which confidential 
treatment is requested. Questions regarding filing or treatment of 
confidential responses to this Notice of Inquiry should be directed to 
the Commission's Secretary, Karen V. Gregory, at the telephone number 
or email provided above.

    By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2011-33007 Filed 12-23-11; 8:45 am]
BILLING CODE 6730-01-P