FMC denies shippers’ association NSA petitions
The U.S. Federal Maritime Commission said it would deny petitions filed by two shippers’ association calling for the agency to reconsider its recent non-vessel-operating common carrier service arrangement rulemaking.
The rule, which became effective Jan. 19, excluded shippers’ associations with NVO members and individual NVOs from entering service arrangements with NVOs. The FMC cited concerns about antitrust violations if NVOs should be allowed to enter service arrangements with other NVOs.
The American Institute for Shippers’ Associations and the International Shippers’ Association claimed in their petitions that during the rulemaking process the FMC failed to consider their arguments; acted beyond its statutory authority in making the rule; failed to adequately determine the rule’s potential effects on competition between large and small NVOs; and improperly regulated the members of shippers’ associations.
In mid-January, both shippers’ associations also filed petitions with the U.S. Court of Appeals for the District of Columbia Circuit to review the FMC’s decision to restrict shippers’ associations from entering NVO service arrangements. Both associations realized after making their filings that the court would not accept appeals on a matter that’s still pending before a federal regulatory entity, and withdrew the petitions from the court on Feb. 2.
In a denial order Tuesday, the FMC said ” ‘undue hardship’ or ‘manifest injustice’ will not arise from the summary rejection of the two petitions for reconsideration.”
The associations now have the option to refile their petitions in the Court of Appeals.
The FMC also denied a half-dozen individual petitions filed since mid-2003 that in essence supported the ability for NVOs to enter service contracts, a privilege which was initially reserved for vessel-operating common carriers and shippers under the 1998 Ocean Shipping Reform Act. The denied petitions were filed by UPS, Ocean World Lines, BAX Global, C.H. Robinson Worldwide, BDP International, Danzas Corp., and FedEx Trade Networks Transport & Brokerage.
“In light of this recent regulatory exemption, the commission has determined in its discretion that no further action will be undertaken,” the FMC said in all six denial orders.
In addition, the FMC rejected the Aug. 8, 2003, petition filed by the National Customs Brokers and Forwarders Association of America requesting the FMC initiate rule to exempt NVOs from publishing tariffs.
“We recognize that the recently enacted exemption (for NSAs) does not fully satisfy NCBFAA’s request for relief,” the FMC said in its denial order. “Nonetheless, we would emphasize that in the creation of the new rule, all of NCBFAA’s arguments were fully considered. Moreover, the new rule grants to NVOCCs substantial contracting flexibility.”