Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 8077 

1See FMC Petition No. P3–03, Comments of the 

United States Department of Justice on Petition of 

United Parcel Service for an Exemption Pursuant to 

Section 16 of the Shipping Act of 1984 to Permit 

Negotiation, Entry and Performance of Service 

Contracts (Oct. 10, 2003) (‘‘DOJ Comments in P3– 

03’’); Comments of the U.S. Department of Justice, 

FMC Docket No. 4–12 (Dec. 3, 2004) (‘‘DOJ 

Comments in 4–12’’); Comments of the U.S. 

Department of Justice, FMC Docket No. 05–06 (Oct. 

20, 2005) (‘‘DOJ Comments in 05–06’’). 

2See 46 U.S.C. 40501 (formerly Section 8 of the 

Shipping Act). 

3For example, the National Customs Brokers and 

Forwarders Association of America, Inc. 

(‘‘NCBFAA’’) estimates that tariff publication 

expenses can be as much as $240,000 per year. 

NCBFAA Petition at 8. See also Comments of Global 

Link Logistics at 2 (‘‘The cost to a small NVOCC to 

comply with tariff publishing requirements is a 

hardship. At GLL we spend in excess of $200,000 

annually.’’); Comments of A.N. Deringer at 2 (‘‘Our 

tariff rate publishing and management costs are an 

additional expense. The labor needed to produce 

the number of quotes, manage carrier updates, and 

keep our tariff current requires an additional 

investment of over $75,000 annually.’’); Comments 

of C.H. Robinson Worldwide at 2 (‘‘[T]he average 

cost for tariff filings per annum exceeds over 

$130,000.’’); and Comments of NACA Logistics 

(USA) at 2 (‘‘The full costs of establishing a tariff 

Web site, rate tariff publication, maintenance of 

same, internal IT development and the costs of 

personnel assigned to tariff compliance is estimated 

at $100,000 annually in resources. We feel this is 

a high cost for a system that is not utilized by the 

shipping public.’’). 

4 46 App. U.S.C. 1715 (1998). 

5An NSA is essentially a contract between an 

NVOCC and a shipper in which the shipper makes 

a commitment to provide a certain minimum 

quantity or portion of its cargo or freight revenue 

over a fixed time period, and the NVOCC commits 

to a certain rate or rate schedule and a defined 

service level. See 46 CFR 531.3(p) (2005). 

6FMC Docket No. 04–12, 69 FR 75850 (Dec. 20, 

2004). 

7See, e.g., Comments of RS Express at 1–2 (filing 

NSAs is a cumbersome process that is worthwhile 

only for major contracts). 

8 In 1998, OSRA gave VOCCs and their shipper 

customers the right to enter freely into confidential 

service contracts, without the need to publish 

commercially sensitive terms and conditions. 

VOCCs typically enter into long-term contracts with 

large shippers that routinely ship significant 

quantities of cargo. In contrast, NVOCCs enter into 

formal, long term contracts much less frequently. 

The Petition states that in 2007, VOCCs filed 43,699 

original service contracts compared to 762 original 

NSAs filed by NVOCCs for the same time period. 

NCBFAA Petition at 8. 

Federal Deposit Insurance Corporation. 

Robert E. Feldman, 

Executive Secretary. 

[FR Doc. 2010–3411 Filed 2–22–10; 8:45 am] 

BILLING CODE P 

FEDERAL MARITIME COMMISSION 

[Petition P1–08] 

Petition of the National Customs 

Brokers and Forwarders Association 

of America, Inc., for Exemption From 

Mandatory Tariff Publication 

Comments of the U.S. Department of 

Justice 

Christine A. Varney, Assistant Attorney 

General. 

Donna N. Kooperstein, Chief. 

William H. Stallings, Assistant Chief. 

Molly S. Boast, Deputy Assistant 

Attorney General. 

Michele B. Cano, Attorney. 

Oliver M. Richard, Assistant Chief. 

John R. Sawyer, Economist, Economic 

Analysis Group. 

U.S. Department of Justice, 

Antitrust Division, 

Transportation, Energy & Agriculture 

Section, 

450 Fifth Street, NW., 

Washington, DC 20530. 

Dated: February 5, 2010. 

Comments 

The United States Department of 

Justice (‘‘Department’’) files these 

comments in support of the petition of 

the National Customs Brokers and 

Forwarders Association of America, Inc. 

(‘‘the Petition’’) requesting an exemption 

for non-vessel-operating common 

carriers (‘‘NVOCCs’’) from certain tariff 

publishing and enforcement 

requirements. NVOCC tariff publishing 

requirements impose significant costs 

that limit competition, resulting in 

higher shipping rates. These costs far 

outweigh any justification. The 

Department has long supported 

exempting NVOCCs from all tariffpublishing requirements to produce the 

greatest competitive benefits.1 Granting 

the relief requested by the Petition 

would represent a meaningful step in 

that direction by reducing unnecessary 

burden and enhancing competition. 

A. NVOCC Tariff-Publishing 

Requirements 

Many shippers of overseas cargo, 

particularly smaller ones, book 

shipments through NVOCCs instead of 

contracting directly with the operators 

of ocean-going vessels (‘‘vessel-operating 

common carriers’’ or ‘‘VOCCs’’). NVOCCs 

provide a variety of services for their 

shipper customers. By negotiating 

service contracts with VOCCs for the 

aggregated volume of their shipper 

customers’ cargoes, NVOCCs can obtain 

better rates than individual shippers 

could obtain on their own. In addition, 

many NVOCCs provide intermodal 

combinations of ocean and inland 

transportation services. Some add still 

other services to their transportation 

packages, such as packing, loading, 

labeling, warehousing, customs 

clearance, supply-chain management 

and other logistical services. 

The Shipping Act of 1984 requires 

that each common carrier, including 

NVOCCs, publish tariffs showing all 

‘‘rates, charges, classifications, rules, 

and practices between all points or 

ports.’’ 2 Tariffs must be published for all 

rates that are charged shippers 

regardless of whether the particular rate 

has been individually negotiated and, in 

addition to detailing the rates to be 

charged, must provide information 

about the places between which cargo 

will be carried, each classification of 

cargo in use, any rules that affect the 

total of the rates or applicable charges, 

and samples of contracts and bills of 

lading. The Act provides for substantial 

fines for each instance of noncompliance. 

Tariff publishing requirements place a 

particularly high burden on NVOCCs 

due to the nature of their business. As 

explained in multiple comments filed in 

this proceeding, NVOCCs typically 

handle small to mid-size shipments on 

a spot basis rather than through longterm contracts. Shippers routinely 

contact NVOCCs to negotiate rate quotes 

to move a particular shipment at a 

specific time. NVOCCs in turn deal with 

multiple VOCCs to provide the actual 

transportation, and the VOCCs 

frequently adjust rates and surcharges 

they impose on the NVOCCs. As a 

result, NVOCCs typically tailor their 

charged rates to the specific 

circumstances of each shipment and, 

accordingly, must make frequent tariff 

filings and adjustments to meet the 

regulatory requirements. This is a costly 

and burdensome process.3

The Federal Maritime Commission 

(‘‘Commission’’) has issued rule changes 

in which it has used its exemption 

authority under § 16 of the 1984 

Shipping Act, later broadened by the 

Ocean Shipping Reform Act (‘‘OSRA’’),4

to relieve NVOCCs from certain tariff 

publication requirements. Most notably, 

the Commission has exempted from full 

tariff-publishing requirements certain 

formal written contracts between 

NVOCCs and shippers (‘‘NVOCC Service 

Arrangements’’ or ‘‘NSAs’’).5 The rule 

allows the contracting parties to keep 

competitively sensitive aspects of the 

agreement (such as price and quantity) 

confidential. However, NVOCCs still 

have to file the agreements with the 

Commission and publish their essential 

terms in tariff form.6 This raises the 

same cost and burden issues NVOCCs 

face under the general tariff publishing 

rules.7 NSAs are not widely used.8

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8078 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 

9The proposed exemption would incorporate the 

following principles: (1) The exemption would be 

voluntary, (2) the exemption would apply only to 

rate tariffs, not rules tariffs, (3) disputes concerning 

negotiated rates would be governed solely by 

contract law, (4) NSAs would continue to be filed 

with the FMC and NSA essential terms would 

continue to be published, (5) all negotiated rates 

would be required to be memorialized in writing, 

(6) the FMC would retain access to the negotiated 

agreements and any underlying written 

communications, (7) the exemption would not be 

construed to convey antitrust immunity to 

NVOCCs, and (8) the exemption would only apply 

to licensed or registered NVOCCs. NCBFAA 

Petition at 11. 

10 DOJ Comments in P3–03 at 1–2. 11NCBFAA Petition at 9, note 11. 

B. The Petition 

The Petition seeks to broaden the 

filing exemption to cover those 

instances where an NVOCC has 

individually negotiated rates with its 

shipping customers and memorialized 

those rates in writing.9 In other words, 

while the NSA rule exempts formal 

contracts from tariff publication and 

enforcement requirements, the Petition’s 

request would cover short-term ‘‘spot 

market’’ rate agreements between 

NVOCCs and shippers, by far the most 

common transaction for NVOCCs. Other 

parties interested in this proceeding 

have submitted comments requesting 

that the Commission further expand the 

requested exemption to apply to service 

terms negotiated in conjunction with 

rates (i.e., vessel capacity, cargo loss and 

damage rules, equipment needs and 

delivery requirements). 

C. The Department Supports the 

Petition 

The proposed elimination of the 

NVOCC tariff publication requirements 

is an appropriate exercise of the 

Commission’s exemption authority 

under 46 U.S.C. 40103(a), which allows 

the Commission to exercise its 

exemption authority if the exemption 

‘‘will not result in a substantial 

reduction in competition or be 

detrimental to commerce.’’ That 

standard is clearly met here. 

As the Department explained in prior 

comments, ‘‘exempting all NVOCCs 

from all tariff publication requirements 

would produce the greatest competitive 

benefits.’’10 Even the more limited 

approach set-forth in the Petition would 

create important benefits. The current 

tariff filing requirement hampers an 

NVOCC’s ability to respond quickly in 

the marketplace. The proposed 

exemption will allow NVOCCs to be 

more flexible in a dynamic contractual 

environment, thereby allowing them to 

be more responsive to their shippers’ 

needs. It would likely promote 

competition and commerce by 

eliminating substantial regulatory costs 

to NVOCCs, a savings that could be 

passed on to its shipper customers in 

the form of lower shipping rates. 

The costs associated with the tariff 

publication requirement greatly exceed 

any benefits. As the NCBFAA noted, 

tariffs are rarely, if ever, reviewed or 

consulted by shippers to determine 

ocean shipping rates.11 When even the 

purported beneficiaries of tariff 

publication requirements find little 

value in them, the cost of requiring 

publication of those tariffs clearly 

exceeds any competitive or commercial 

benefits. Moreover, if tariff publications 

were of value to shippers, any NVOCC 

would remain free to publish them. 

Conclusion 

In conclusion, the Department 

supports the goal of the relief requested 

in the Petition to further exempt 

NVOCCs from tariff publishing and 

enforcement requirements. 

U.S. Department of Justice, Antitrust 

Division, Transportation, Energy & 

Agriculture Section, 450 Fifth Street, 

NW., Washington, DC 20530. 

Michele B. Cano, 

Attorney. 

[FR Doc. 2010–3325 Filed 2–22–10; 8:45 am] 

BILLING CODE 6730–01–M 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of the National Coordinator for 

Health Information Technology; HIT 

Policy Committee’s Workgroup 

Meetings; Notice of Meetings 

AGENCY: Office of the National 

Coordinator for Health Information 

Technology, HHS. 

ACTION: Notice of meetings. 

This notice announces forthcoming 

subcommittee meetings of a Federal 

advisory committee of the Office of the 

National Coordinator for Health 

Information Technology (ONC). The 

meetings will be open to the public via 

dial-in access only. 

Name of Committees: HIT Policy 

Committee’s Workgroups: Meaningful 

Use, Privacy & Security Policy, Strategic 

Plan, Adoption/Certification, and 

Nationwide Health Information 

Infrastructure (NHIN) workgroups. 

General Function of the Committee: 

To provide recommendations to the 

National Coordinator on a policy 

framework for the development and 

adoption of a nationwide health 

information technology infrastructure 

that permits the electronic exchange and 

use of health information as is 

consistent with the Federal Health IT 

Strategic Plan and that includes 

recommendations on the areas in which 

standards, implementation 

specifications, and certification criteria 

are needed. 

Date and Time: The HIT Policy 

Committee Workgroups will hold the 

following public meetings during March 

2010: March 4th Meaningful Use 

Workgroup, 10 a.m. to 12 p.m./Eastern 

Time; March 9th Strategic Plan 

Workgroup, 9 a.m. to 12 p.m./Eastern 

Time; March 16th NHIN Workgroup, 

2:30 p.m. to 5 p.m./Eastern Time; March 

25th Privacy & Security Policy 

Workgroup, 2 to 4 p.m./Eastern Time; 

and March 29th Adoption/Certification 

Workgroup, 10 a.m. to 12 p.m./Eastern 

Time. 

Location: All workgroup meetings 

will be available via webcast; for 

instructions on how to listen via 

telephone or Web visit http:// 

healthit.hhs.gov. Please check the ONC 

Web site for additional information as it 

becomes available. 

Contact Person: Judy Sparrow, Office 

of the National Coordinator, HHS, 330 C 

Street, SW., Washington, DC 20201, 

202–205–4528, Fax: 202–690–6079, email: judy.sparrow@hhs.gov Please call 

the contact person for up-to-date 

information on these meetings. A notice 

in the Federal Register about last 

minute modifications that effect a 

previously announced advisory 

committee meeting cannot always be 

published quickly enough to provide 

timely notice. 

Agenda: The workgroups will be 

discussing issues related to their 

specific subject matter, e.g., meaningful 

use, the NHIN, privacy and security 

policy, adoption/certification, or 

strategic planning. If background 

materials are associated with the 

workgroup meetings, they will be 

posted on ONC’s Web site prior to the 

meeting at http://healthit.hhs.gov. 

Procedure: Interested persons may 

present data, information, or views, 

orally or in writing, on issues pending 

before the workgroups. Written 

submissions may be made to the contact 

person on or before two days prior to 

the workgroups’ meeting date. Oral 

comments from the public will be 

scheduled at the conclusion of each 

workgroup meeting. Time allotted for 

each presentation will be limited to 

three minutes. If the number of speakers 

requesting to comment is greater than 

can be reasonably accommodated 

during the scheduled open public 

session, ONC will take written 

comments after the meeting until close 

of business on that day. 

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