FMC Commissioner Dye Discusses NVOCC Tariff Requirements, Antitrust Immunity, Etc.

Federal Maritime Commissioner Dye recently gave her individual views on issues of deregulation and exemption authority, antitrust immunity, inadequate vessel space and containers at the recent National Customs Brokers & Forwarders Association of America annual conference.

The following are highlights of her comments:

FMC May, and Should, Provide Certain Regulatory Relief

FMC may use the liberalized exemption authority that Congress gave them under the Ocean Shipping Reform Act of 1998 to grant certain regulatory relief. If FMC identifies regulatory relief measures that would not substantially reduce competition or be detrimental to commerce, Dye believes that FMC may, and should, provide this relief. Dye said that she strongly supports FMC’s use of this exemption authority to reduce unnecessary regulatory burdens on U.S. businesses.

FMC to issue proposed rule on NVOCC tariff filing requirements. With regard to the NCBFAA’s petition to exempt NVOCCs from the provisions of the Shipping Act requiring NVOCCs to publish and adhere to rate tariffs in those instances where an NVOCC has individually negotiated rates with its shipping customers, FMC directed the staff to prepare a notice of proposed rulemaking that would relieve licensed NVOCCs from publishing and adhering to rates in tariffs while imposing several conditions on this regulatory relief.

(On February 18, 2010, FMC voted to issue a rulemaking to relieve NVOCCs from certain Shipping Act of 1984 tariff publishing requirements, as petitioned. See ITT’s Online Archives or 02/19/10 news, (Ref: 10021905), for BP summary.)

New Investigation to Determine its Policies on Vessel Capacity

According to Dye, FMC has received a growing number of reports from shippers and intermediaries that importers and exporters have had difficulty obtaining vessel space, particularly in the U.S.-Asia trades. FMC has also received reports of U.S. exporters experiencing problems with the distribution and availability of shipping containers for their goods on those same Asian trades.

Due to its concerns about the causes of these container vessel capacity and equipment constrains as well as concerns about whether those constraints could hinder the U.S. economic recovery, FMC has ordered an investigation into these practices (Fact-Finding Investigation No. 26). FMC will use the information obtained in the investigation and the recommendations of Fact-Finding 26 to determine its policies with respect to vessel and equipment capacity related issues.

(See ITT’s Online Archives or 03/18/10 news, (Ref: 10031805), for BP summary of FMC announcing the investigation.)

FMC Plans for Possible Notice of Inquiry for its Study on EU’s Elimination of Shipping Conferences

Dye also noted that the trade is interested in how the European Commission's decision to repeal the exemption from the ban on restrictive business practices for liner conferences will affect carrier antitrust immunity in the U.S.

Currently, FMC is collecting data and stakeholder information for its study of the impact of the EU's October, 2008, repeal of its liner conference block exemption. The study will cover five complete calendar years, from January 1, 2006, to December 31, 2010. Also, FMC has plans for a possible Notice of Inquiry to solicit an even broader range of insights and views this fall. Those comments and the other data that FMC is gathering would be used to prepare the final report.

(See ITT’s Online Archives or 11/25/09 news, (Ref: 09112520), for BP summary of FMC’s study.)

FMC Commissioner Dye’s remarks (dated 04/13/10) available http://www.fmc.gov/speeches/newsrelease.asp?SPEECH_ID=312