34780 Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Rules and Regulations 

have a substantial direct effect on States 

or tribal governments, on the 

relationship between the national 

government and the States or tribal 

governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

tribes. Thus, the Agency has determined 

that Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999) and Executive Order 13175, 

entitled ‘‘Consultation and Coordination 

with Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000) do not apply 

to this action. In addition, this action 

does not impose any enforceable duty or 

contain any unfunded mandate as 

described under Title II of the Unfunded 

Mandates Reform Act (UMRA) (2 U.S.C. 

1501 et seq.). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act 

(NTTAA) (15 U.S.C. 272 note). 

VII. Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: July 11, 2018. 

Michael L. Goodis, 

Director, Registration Division, Office of 

Pesticide Programs. 

Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. In § 180.613: 

■ a. In the table in paragraph (a)(1): 

■ i. Remove the entry ‘‘Brassica, head 

and stem, subgroup 5A’’; 

■ ii. Add alphabetically the commodity 

‘‘Brassica, leafy greens, subgroup 4–16B, 

except radish, tops’’; 

■ iii. Remove the entry ‘‘Brassica, leafy 

greens, subgroup 5B’’; 

■ iv. Add alphabetically the 

commodities ‘‘Celtuce’’ and 

‘‘Cottonseed subgroup 20C’’; 

■ v. Remove the entry ‘‘Cotton, 

undelinted seed’’; 

■ vi. Add alphabetically the 

commodities ‘‘Florence fennel’’; 

‘‘Kohlrabi’’; ‘‘Leaf petiole vegetable 

subgroup 22B’’; and ‘‘Leafy greens 

subgroup 4–16A, except spinach’’; 

■ vii. Revise the entry for ‘‘Radish, 

tops’’; 

■ viii. Remove the entry ‘‘Turnip, 

greens’’; 

■ ix. Add alphabetically the commodity 

‘‘Vegetable, brassica, head and stem, 

group 5–16’’; and 

■ x. Remove the entry ‘‘Vegetable, leafy, 

except brassica, group 4, except 

spinach’’. 

■ b. Revise paragraph (c). 

The additions and revisions read as 

follows: 

§ 180.613 Flonicamid; tolerances for 

residues. 

(a) * * * 

(1) * * * 

Commodity Parts per 

million 

* * * * * 

Brassica, leafy greens, subgroup 4–16B, except radish, tops ............................. 16 

Celtuce .................................. 4.0 

* * * * * 

Cottonseed subgroup 20C ... 0.60 

Florence fennel ..................... 4.0 

* * * * * 

Kohlrabi ................................. 1.5 

Leaf petiole vegetable subgroup 22B ......................... 4.0 

Leafy greens subgroup 4– 

16A, except spinach ......... 4.0 

* * * * * 

Radish, tops .......................... 20 

* * * * * 

Vegetable, brassica, head 

and stem, group 5–16 ....... 1.5 

* * * * * 

* * * * * 

(c) Tolerances with regional 

registrations. Tolerances with regional 

registration, as defined by § 180.1(1), are 

established for the residues of the 

insecticide flonicamid, including its 

metabolites and degradates, in or on the 

commodities in the table below. 

Compliance with the tolerance levels 

specified below is to be determined by 

measuring only the sum of flonicamid, 

N-(cyanomethyl)-4-(trifluoromethyl)-3- 

pyridinecarboxamide, and its 

metabolites, TFNA (4- 

trifluoromethylnicotinic acid), TFNA– 

AM (4-trifluoromethylnicotinamide), 

and TFNG (N-(4- 

trifluoromethylnicotinoyl)glycine), 

calculated as the stoichiometric 

equivalent of flonicamid, in or on the 

following commodities: 

Commodity Parts per 

million 

Clover, forage ....................... 0.90 

Clover, hay ........................... 5.0 

* * * * * 

[FR Doc. 2018–15449 Filed 7–20–18; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL MARITIME COMMISSION 

46 CFR Parts 531 and 532 

[Docket No. 17–10] 

RIN 3072–AC68 

Amendments to Regulations 

Governing NVOCC Negotiated Rate 

Arrangements and NVOCC Service 

Arrangements 

AGENCY: Federal Maritime Commission. 

ACTION: Final rule. 

SUMMARY: The Federal Maritime 

Commission (FMC or Commission) 

amends its rules governing Non-VesselOperating Common Carrier (NVOCC) 

Negotiated Rate Arrangements and 

NVOCC Service Arrangements. The 

regulatory changes modernize, update, 

and reduce regulatory burdens. 

DATES: This final rule is effective August 

22, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Rachel E. Dickon, Secretary. Phone: 

(202) 523–5725. Email: secretary@

fmc.gov. For technical questions, 

contact Florence A. Carr, Director, 

Bureau of Trade Analysis. Phone: (202) 

523–5796. Email: tradeanalysis@

fmc.gov. For legal questions, contact 

Tyler J. Wood, General Counsel. Phone: 

(202) 523–5740. Email: generalcounsel@

fmc.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Background 

A. NVOCC Service Arrangements (NSAs) 

B. NVOCC Negotiated Rate Arrangements 

(NRAs) 

C. Pre-Rulemaking Differences Between 

Tariffs; NSAs; NRAs 

D. NCBFAA Petition for Rulemaking and 

Overview of Comments 

E. Summary of November 29, 2017, Notice 

of Proposed Rulemaking 


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1. Removal of NSA Filing and Publication 

Requirements 

2. Allowance of Non-Rate Economic Terms 

in NRAs 

3. Authorize Amendments of NRAs and 

Shipper Acceptance Upon Booking 

III. Overview of Comments 

IV. Final Rule and Response to Comments 

A. Remove the NSA Filing and Publication 

Requirements 

1. Comments 

2. Discussion 

B. Allow Non-Rate Economic Terms in 

NRAs 

1. Comments 

2. Discussion 

C. Third-Party Pass-Through Assessorial 

Charges 

1. Comments 

2. Discussion 

D. Authorize Amendments and Shipper 

Acceptance Upon Booking 

1. Comments 

2. Discussion 

E. Elimination of All Tariff Publishing 

Requirements 

1. Comments 

2. Discussion 

F. Summary of Post Final Rule NSA/NRA 

Differences 

V. Rulemaking Analyses and Notices 

I. Executive Summary 

The Commission is amending its rules 

at 46 CFR part 531 governing NVOCC 

Service Arrangements (NSA) to remove 

the NSA filing and publication 

requirements. The Commission also is 

amending its rules at 46 CFR part 532 

to permit NVOCC Negotiated Rate 

Arrangements (NRA) to be amended at 

any time and to allow the inclusion of 

non-rate economic terms. In addition, 

an NVOCC may provide for the 

shipper’s acceptance of the NRA by 

booking a shipment thereunder, subject 

to the NVOCC incorporating a 

prominent written notice to such effect 

in each NRA or amendment. In 

addition, the Commission is including 

clarifying language in part 532 to reflect 

the current treatment of third-party, 

pass-through assessorial charges and the 

enforceability of NRAs. 

II. Background 

The Shipping Act of 1984 (the 

Shipping Act or the Act) expanded the 

options for pricing liner services by 

introducing the concept of carriage 

under service contracts filed with the 

Commission. Public Law 98–237, 

section 8(c). Liner services could be 

priced via negotiated contracts between 

ocean common carriers and their 

shipper customers, rather than solely by 

public tariffs. Per the Shipping Act and 

FMC regulations, ocean freight rates, 

surcharges, and assessorial charges had 

to be published in tariffs or agreed to via 

service contracts filed with the 

Commission. Contemporaneous with 

the filing of service contracts, ocean 

carriers were required to make publicly 

available statements of essential terms 

in tariff format. 

The Ocean Shipping Reform Act of 

1998 (OSRA) amended the Shipping Act 

of 1984 as it related to service contracts. 

Public Law 105–258, section 106. No 

longer did contract rates need to be 

published in the tariff publication, and 

the essential terms publication was 

limited to: origin and destination port 

ranges, commodities, minimum volume 

or portion, and duration. Nevertheless, 

though the Shipping Act and its 

amendments provided for more 

efficiency and flexibility for ocean 

common carriers through the use of 

service contracts, similar relief was not 

extended to NVOCCs, which were still 

required to publish tariffs and adhere to 

those tariffs when transporting cargo. 

A. NVOCC Service Arrangements 

(NSAs) 

In 2003, NCBFAA filed a petition 

seeking exemption from some of the 

tariff requirements of the Shipping Act 

of 1984. See Docket No. P5–03, Petition 

of the National Customs Brokers and 

Forwarders Association of America. Inc. 

for Limited Exemption of Certain Tariff 

Requirements of the Shipping Act of 

1984. In response, the Commission 

issued a notice of proposed rulemaking 

(NPRM) to exempt NVOCCs from the 

tariff provisions of the Shipping Act and 

permit them to enter into contracts with 

shippers similar to ocean common 

carrier service contracts. NPRM: NonVessel Operating Service Arrangements, 

69 FR 63981 (Nov. 3, 2004). The 

Commission determined that in order to 

ensure there was no substantial 

reduction in competition among 

NVOCCs, the exemption had to be 

available to all NVOCCs compliant with 

both section 19 of the Shipping Act and 

the conditions of the exemption. Id. The 

Commission proposed that ‘‘the 

exemption be conditioned on the same 

statutory and regulatory requirements 

and protections applicable to VOCCs’ 

service contracts: namely, filing of 

executed agreements; publication of 

essential terms of those agreements; and 

confidential treatment, similar to that 

set forth in 46 CFR part 530.’’ Id. at 

63986. The Commission also proposed 

the required publication of the essential 

terms of all NSAs in automated systems 

and the confidential filing of the text of 

those NSAs with the Commission. Id. at 

63987. The Commission further 

proposed ‘‘making applicable to carriage 

under an NSA, those provisions of the 

Shipping Act that would be applicable 

to service contracts.’’ Id. The 

Commission’s final rule provided a 

limited exemption and permitted NSAs, 

similar to service contracts, subject to 

filing and publication requirements in 

46 CFR part 531. Final Rule: NonVessel-Operating Common Carrier 

Service Arrangements, 69 FR 75850 

(Dec. 20, 2004). To ensure that the 

exemption as proposed would not result 

in a substantial reduction in 

competition, the Commission limited 

the exemption to individual NVOCCs 

acting in their capacity as carriers. Id. at 

75851. The Commission also decided to 

allow affiliated NVOCCs to jointly offer 

NSAs. Id. at 75852. 

B. NVOCC Negotiated Rate 

Arrangements (NRAs) 

In 2008, the NCBFAA filed another 

petition with the Commission. This 

petition sought an exemption from 

mandatory rate tariff publication. See 

Docket No. P1–08, Petition of the 

National Customs Brokers and 

Forwarders Association of America. Inc. 

for Exemption from Mandatory Rate 

Tariff Publication (filed July 31, 2008). 

The proposal sought to exempt NVOCCs 

from the provisions of the Shipping Act 

of 1984 requiring them to publish and/ 

or adhere to rate tariffs ‘‘in those 

instances where they have individually 

negotiated rates with their shipping 

customers and memorialized those rates 

in writing.’’ NCBFAA Pet. in Docket No. 

P1–08, at 10. 

By NPRM issued May 7, 2010, the 

Commission proposed to permit the use 

of NRAs in lieu of publishing rates in 

tariffs, subject to conditions, including 

(1) a requirement for NVOCCs to 

continue publishing standard rules 

tariffs with contractual terms and 

conditions governing shipments, 

including any assessorial charges and 

surcharges, (2) a requirement to make 

available NVOCC rules tariffs to 

shippers free of charge; (3) a 

requirement that NRA rates be mutually 

agreed to and memorialized in writing 

by the date the cargo is received for 

shipment; and (4) a requirement that 

NVOCCs who use NRAs must retain, 

and make available upon request to the 

Commission, documentation confirming 

the terms, and agreed rate, for each 

shipment for a period of five years. 

NPRM: NVOCC Negotiated Rate 

Arrangements, 75 FR 25150, 25154 (May 

7, 2010). In the NPRM, the Commission 

also determined that under 46 U.S.C. 

40103, the exemption could be granted 

as doing so would not result in a 

substantial reduction in competition or 

be detrimental to commerce. 75 FR at 

25153. 

The Commission subsequently 

granted the exemption, relieving 

NVOCCs from the burden and costs of 


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tariff rate publication when using this 

new class of carrier rate arrangements. 

Final Rule: NVOCC Negotiated Rate 

Arrangements, 76 FR 11351 (Mar. 2, 

2011). In determining whether to grant 

the exemption the Commission 

considered: Competition among 

NVOCCs; competition between NVOCCs 

and VOCCs; competition among vesseloperating common carriers (VOCCs); as 

well as competition among shippers. Id. 

at 11352. The Commission determined 

that granting the exemption would not 

result in a substantial reduction in 

competition in any of the above 

categories. Id. at 11352–11353. 

Analyzing whether granting the 

exemption would be detrimental to 

commerce, the Commission determined 

that such NRAs would be beneficial to 

commerce because the exemption 

would ‘‘reduce NVOCC operating costs 

and increase competition in the U.S. 

trades.’’ Id. at 11353. The Commission 

also determined that ‘‘NVOCCs entering 

into NRAs continue to be subject to the 

applicable requirements and strictures 

of the Shipping Act, including oversight 

by the Commission.’’ Id. at 11354. 

As a condition to offering NRAs, 

NVOCCs were required to provide their 

rules tariffs to the public free of charge. 

76 FR at 11358. The Commission also 

determined not to allow for amendment 

of an NRA after receipt of the cargo by 

the carrier or its agent. Id. Consistent 

with the Petition’s focus upon 

negotiated rates only, the Commission 

determined not to permit NRAs to 

include non-rate economic terms, such 

as rate methodology, credit and 

payment terms, forum selection or 

arbitration clauses, or minimum 

quantities. Id. at 11355. 

C. Pre-Rulemaking Differences Between 

Tariffs, NSAs, and NRAs 

The primary differences between 

NRAs and NSAs are the formality of the 

arrangement and the scope of terms 

covered. Currently, NRAs must be in 

writing, and shipper acceptance must be 

in writing, such as by email. See NPRM: 

Amendments to Regulations Governing 

NVOCC Negotiated Rate Arrangements 

and NVOCC Service Arrangements, 82 

FR 56781, 56786 (Nov. 30, 2017). NRAs 

have a ‘‘stated cargo quantity,’’ with no 

minimum volume or quantity 

commitment. See 46 CFR 532.3(a). 

NRAs cover specific points of origin and 

destination and include rates effective 

on and after a stated date or within a 

defined time frame. See § 532.3(a)–(b). 

The rates and applicable shipments 

must be specified as well as the names 

of the parties. § 532.5(b). Non-rate 

economic terms, including liquidated 

damages, are not currently permitted in 

NRAs. See 76 FR at 11355. Instead, such 

terms are included in the NVOCC’s 

‘‘rules tariff,’’ which must be made 

available electronically and free of 

charge. See §§ 532.3(c) and 532.4. In 

addition, NRAs may not be modified 

after the time the initial shipment is 

received by the carrier or its agent 

(including originating carriers in the 

case of through transportation). 

§ 532.5(e). NRAs are not required to be 

filed with the FMC, but they must be 

maintained for a 5-year period and 

made available to the Commission upon 

request. See § 532.7(a)–(b). 

NSAs, on the other hand, must be 

signed by the parties. 46 CFR 

531.6(b)(9). Unlike NRAs, NSAs contain 

a minimum volume or quantity 

commitment, as well as defined service 

level and a certain rate or rate schedule 

over a fixed period of time. § 531.3(p). 

NSAs also include port ranges (port to 

port) or geographic areas (intermodal) as 

opposed to specific points of origin and 

destination. See § 531.6(b)(1)–(2). NSAs 

are also broader in scope than NRAs, 

and may include non-rate economic 

terms, including liquidated damages in 

the event of nonperformance. See 

§ 531.6(b)(7). In addition, NSAs may be 

modified at any time. See § 531.3(c). 

The filing requirements for NSAs and 

NRAs also currently differ. NSAs and 

amendments must be filed with the 

Commission in SERVCON. See 

§ 531.6(a). Like NRAs, however, NSAs 

and associated records must be 

maintained for a 5-year period and must 

be made available to the Commission 

upon request. § 531.12. Liquidated 

damages by way of ‘‘provisions in the 

event of nonperformance’’ may also be 

provided for. See 46 CFR part 531. 

In comparison, carrier tariffs provide 

for port ranges (port to port) or 

geographic areas (intermodal), but also 

Tariff Rate Items (TRIs). See 46 CFR 

520.4. A TRI is a single freight rate in 

effect on and after a specific date or for 

a specific time period, for the 

transportation of a stated cargo quantity, 

which may move from origin to 

destination under a single specified set 

of transportation conditions. § 520.4(f). 

TRIs have no minimum volume or 

quantity commitment like NSAs, and 

rate reductions can take effect 

immediately; however, rate increases 

must be published at least 30 days in 

advance. See § 520.8(a). There is no 

provision for liquidated damages for 

goods moving under tariffs, and unlike 

NSAs and NRAs, tariffs are available 

and applicable to all shippers. See 

§ 520.12(e). No written signature is 

required. Tariff publication data is 

required to be maintained by carriers 

and conferences for 5 years and 

accessible on-line for 2 years. § 520.10. 

Tariffs must be made available to the 

public at a reasonable fee. See id. 

D. NCBFAA Petition for Rulemaking 

and Overview of Comments 

NCBFAA petitioned the FMC on April 

16, 2015, to initiate a rulemaking to 

eliminate the NSA provisions in 46 CFR 

part 531 in their entirety, or 

alternatively, eliminate the filing and 

essential terms publication 

requirements for NSAs. Consolidated 

with that request, NCBFAA also asked 

the Commission to expand the NRA 

exemption in 46 CFR part 532 to 

include economic terms beyond rates, 

and to delete 46 CFR 532.5(e), which 

precludes any amendment or 

modification of an NRA after the initial 

shipment is received by the NVOCC or 

its agent. NCBFAA proposed expanding 

the NRA exemption in 46 CFR part 532 

to allow modification of NRAs at any 

time upon mutual agreement between 

NVOCCs and their customers. NCBFAA 

Petition at 14. 

NCBFAA argued that shippers and 

NVOCCs do not benefit from the current 

preclusion of amendments. NCBFAA 

Pet. at 10. NCBFAA also argued that 

shippers and NVOCCs regularly seek to 

negotiate on a broad range of service 

terms and that ‘‘each of these terms are 

relevant to some extent to every rate and 

service negotiation between an NVOCC 

and an existing or prospective customer. 

Yet, none of the items . . . can properly 

be included in an NRA.’’ See id. at 

8–9. NCBFAA furthermore contended 

that as NSAs must be filed with the 

Commission, and essential terms of 

NSAs also need to be published in 

tariffs, NSAs are more burdensome than 

regular rate tariffs. See id. at 7–8. 

NCBFAA also argued that continuing 

the filing requirement for NSAs does not 

appear to provide any regulatory 

benefit. See id. at 12–13. 

On April 28, 2015, the Commission 

published a Notice of Filing and 

Request for Comments on NCBFAA’s 

petition. 80 FR 23549 (Apr. 28, 2015). 

Sixteen sets of comments were received 

from a broad cross-section of industry 

stakeholders, including licensed 

NVOCCs and freight forwarders, a major 

trade association representing beneficial 

cargo owners, and VOCCs. 

The majority of the ocean 

transportation intermediary (OTI) 

comments expressed general support for 

the petition. Commenters supported 

either the elimination of 46 CFR Part 

531 in its entirety, or eliminating the 

filing and essential terms publication 

requirements for NSAs. Many supported 

allowing economic terms beyond rates 

in NRAs, as well as the modification of 


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1 Docket No. 16–05, Service Contracts and 

NVOCC Service Arrangements. 

NRAs at any time, upon mutual 

agreement. 

The World Shipping Counsel, whose 

comments were supported by Crowley, 

urged even-handed regulatory relief 

with respect to VOCCs as well. WSC 

cited prior requests that VOCCs have 

made for changes to the Commission’s 

regulations governing service contract 

amendment filings. WSC proposed ‘‘that 

service contract amendments be 

permitted to be filed within 90 days of 

the filing of the underlying commercial 

agreement.’’ See WSC at 1. 

The National Industrial 

Transportation League (NITL) did not 

support the elimination of Part 531 in 

its entirety. UPS also opposed any 

restrictions upon, or the elimination of, 

Part 531, expressing support for the 

continued use of NSAs. 

DGR Logistics noted the potential for 

logistical and regulatory challenges to 

NVOCCs caused by the requirement at 

46 CFR 532.5(c) that an NRA ‘‘be agreed 

to’’ by the shipper prior to receipt of 

cargo by the common carrier or its 

agent. See DGR at 2. 

On August 2, 2016, the Commission 

granted NCBFAA’s petition to ‘‘initiate 

a rulemaking with respect to the 

revisions discussed in the petition.’’ 

Because the Commission was in the 

process of a separate rulemaking to 

amend portions of Part 531 related to 

NSAs,1 however, the Commission 

delayed initiating the requested 

rulemaking until after the rulemaking in 

Docket No. 16–05 was concluded. 

E. Summary of November 29, 2017, 

Notice of Proposed Rulemaking 

1. Removal of NSA Filing and 

Publication Requirements 

The Commission noted in the NPRM 

that the majority of the NVOCC 

commenters supported the NCBFAA 

position on eliminating the NSA filing 

and publication requirements. See 82 

FR at 56785. Furthermore, the NPRM 

stated that OTI commenters had made a 

substantial case that continuing the 

filing requirement for NSAs did not 

appear to offer any regulatory benefit. 

Id. The Commission therefore proposed 

to remove the requirement that NSAs be 

filed in SERVCON and the requirement 

that an NVOCC publish the essential 

terms of an NSA. Id. The Commission 

also explained that shippers, whom the 

Commission originally identified as the 

group to benefit from the requirement of 

essential terms publication in the 

original 2003 NSA rulemaking, had not 

since commented on the continuing 

utility of essential terms publications, 

and thus maintaining the requirement 

appeared to provide little regulatory 

benefit. Id. By way of removing the 

essential terms and NSA filing 

requirements, but keeping NSAs as an 

option, the Commission stated that it 

was seeking to preserve choice, but 

reduce costs. Id. The Commission noted 

that containing both service and rate 

provisions may be less than ideal for 

shippers or NVOCCs with low shipment 

volumes; however, considerable 

volumes of cargo are currently 

transported under the current contract 

model. Id. The NPRM stated that 

NVOCC members of NCBFAA would 

prefer the flexibility of including both 

service and rate-related items in their 

contract offerings if relieved of the filing 

and publication burdens of same. Id. at 

56786. 

The NPRM also addressed WSC’s 

concerns regarding regulatory relief 

regarding service contracts by noting 

that the relief granted by the 

Commission in Docket 16–05 allowed 

amendments to service contracts, 

including multiple service contract 

amendments, to become effective during 

a 30-day period prior to being filed with 

the Commission. Id. at 56785. 

Furthermore, the Commission stated 

that further relief to VOCCs for service 

contracts may be undertaken by the 

Commission after it has had an 

opportunity to analyze the impact of the 

30-day filing period on VOCC 

operations and shipper feedback. Id. 

In order to readily determine which 

NVOCCs are using NSAs in the absence 

of the filing and publication 

requirements, the NPRM also proposed 

requiring NVOCCs to include a 

prominent notice in their rules tariffs 

indicating their intention to use NSAs, 

mirroring the requirement in § 532.6 for 

NVOCCs using NRAs. In addition, the 

Commission proposed requiring 

NVOCCs using NSAs to provide 

electronic access to their rules tariffs to 

the public free of charge, mirroring the 

requirement in § 532.4 for NVOCCs 

using NRAs. 

2. Allowance of Non-Rate Economic 

Terms in NRAs 

In the NPRM, the Commission 

addressed the allowance of non-rate 

economic terms in NRAs by reaffirming 

its intention to provide a new business 

model for NVOCCs who cannot use 

NSAs and inviting further comment, 

‘‘particularly from shippers currently 

using NRAs, on how expanding the 

NRA exemption to allow inclusion in 

NRAs of non-rate economic terms may 

impact their commercial business 

operations.’’ See 82 FR at 56785. 

3. Authorize Amendments of NRAs and 

Shipper Acceptance Upon Booking 

In the NPRM, the Commission noted 

the need for NRAs to respond to an 

ever-changing marketplace. 82 FR at 

56786. The Commission also noted that 

the smaller cargo volume and 

commenters’ statements demonstrate 

that NRAs tend to be short-term and 

transactional in nature. Id. The 

Commission expressed its desire to limit 

regulatory burden, and noted that 

NVOCCs and their customers should not 

be compelled to create a new NRA in 

every instance simply because the rules 

do not currently provide for 

amendment. Id. The Commission, 

furthermore, acknowledged that it was 

appropriate to permit NRAs to be 

extended or amended upon acceptance 

or agreement by the shipper customer. 

Id. 

The Commission, noting DGR 

Logistics’ comment on the potential for 

logistical and regulatory challenges to 

the NVOCC caused by the requirement 

at 46 CFR 532.5(c), also proposed to 

allow NRAs to be more flexibly created, 

or be amended, upon the shipper’s 

acceptance in the form of a request for 

booking pursuant to the NRA. Id. The 

Commission noted that this practice 

would more closely correlate to the 

manner in which a shipper accepts a 

written rate quote under standard tariff 

rates and rules, i.e., by communicating 

its agreement solely in terms of 

instructing the NVOCC to book the 

cargo for shipment thereunder. Id. In 

light of this new practice, the 

Commission proposed that each NVOCC 

seeking to allow recognition of shipper 

acceptance of an NRA through booking 

incorporate a prominent written notice 

on each NRA or amendment. Id. 

The NPRM also pointed out that as 

this new practice was meant to be 

optional, the Commission would not 

eliminate the requirement that a 

shipper’s agreement to an NRA should 

otherwise be in writing or by email. Id. 

The NPRM invited public comment on 

allowing NRA acceptance through 

booking, as well as on whether to 

require specific wording on the practice 

in NRAs and amendments in order to 

provide prominent notice to shippers, as 

the NPRM proposed. Id. 

III. Overview of Comments 

Thirty-nine sets of comments were 

received in response to the November 

29, 2017, Notice of Proposed 

Rulemaking, which may be found at the 

Electronic Reading Room on the 

Commission’s website at https://

www.fmc.gov/17-10/. Comments were 

received from NCBFAA; ABS 


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34784 Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Rules and Regulations 

2The Florida Customs Brokers and Freight 

Forwarders Association (FCBF), along with a 

number of individual NCBFAA and FCBF members 

submitted identical comments. See Comments of 

FCBF, Kelly Global Logistics, Inc., North Atlantic 

International Ocean Carrier, ECU Worldwide 

(NVOCC) and Mabel Olivera, Vice President 

Operations for Clover Systems, LLC, IContainers 

(USA), A Customs Brokerage (ACB), Inc. Omara 

Valles, Operations Manager, of Clover International, 

LLC., Hemisphere Cargo, Corp., KCarlton 

International dba KCI Shipping Line, Geodis Freight 

Forwarding. One commenter, Express Logistics 

Services, LLC., submitted nearly identical 

comments but did not identify itself as a member 

of NCBFAA or FCBF. For ease of reference, we refer 

to these as ‘‘NCBFAA/FCBF Member Comments’’ 

throughout the final rule. 

Consulting (ABS); Mohawk Global 

Statistics (Mohawk); DJR Logistics, Inc. 

(DJR); New York New Jersey Foreign 

Freight Forwarders and Brokers 

Association, Inc. (NYNJFFF&BA); NITL; 

CaroTrans International, Inc., 

(CaroTrans); Vanguard Logistics 

Services (USA), Inc., (Vanguard); Serra 

International, Inc., (Serra); FedEx Trade 

Networks Transport & Brokerage, Inc. 

(FedEx); Florida Customs Brokers and 

Freight Forwarders Association (FCBF); 

Kelly Global Logistics, Inc.; North 

Atlantic International Ocean Carrier; 

ECU Worldwide; Mabel Olivera, Vice 

President of Operations for Clover 

Systems, LLC; IContainers (USA); A 

Customs Brokerage (ACB), Inc.; Omara 

Valles, Operations Manager of Clover 

Internacional, LLC; Hemisphere Cargo, 

Corp.; KCarlton International (dba KCI 

Shipping Line); Express Logistics 

Services, LLC; Geodis Freight 

Forwarding; Yusen Logistics (Yusen); 

Asia Shipping USA, Inc. (Asia); Parker 

& Company Worldwide (Parker); 

Quadrant Magnetics (Quadrant); 

Crescent Products USA LLC (Crescent); 

Geek Net Inc. (Geek Net); Connor 

Corporation (Connor); Bonney Forge 

Corporation (Bonney Forge); RBH 

Sound (RBH); Dart Maritime Service, 

Inc. (Dart); CJ International, Inc. (CJ 

International); Sefco Export 

Management Company, Inc. (Sefco); 

Eastman Chemical Company; 

Thunderbolt Global Logistics 

(Thunderbolt); Shipco Transport Inc. 

(Shipco); John S. Connor Global 

Logistics (Connor Global); Livingston 

International, Inc. (Livingston). 

The comments represent a broad 

group of industry stakeholders, 

including licensed NVOCCs and freight 

forwarders, a tariff publishing vendor, 

and shippers. 

No commenters, except Dart and 

NITL, were opposed to allowing 

acceptance of an NRA to be 

demonstrated by booking (some even 

supported allowing receipt of cargo 

prior to acceptance/booking). No 

commenters were expressly against 

allowing economic terms beyond rates 

in NRAs, the modification of NRAs at 

any time upon mutual agreement, or the 

elimination of the filing and essential 

terms publication requirements for 

NSAs. Some commenters also noted the 

benefits of NSAs, but sought more 

flexibility in the application of NSAs. 

Commenters also sought clarification on 

the role of pass-through and assessorial 

charges. 

Regarding the Commission’s 

requirement for prominent written 

notice in order to recognize acceptance 

of an NRA through booking, some 

commenters were in favor of the written 

notice along with specific wording for 

the notice, whereas some commenters 

were against any such requirement, as 

well as against any specific wording. 

IV. Final Rule and Response to 

Comments 

A. Remove the NSA Filing and 

Publication Requirements 

1. Comments 

NCBFAA favors exempting NSAs 

from both the filing and essential terms 

publication requirements and supports 

the Commission’s proposal. NCBFAA at 

3. A significant number of individual 

NCBFAA/FCBF members 2 also stated 

that ‘‘[t]he FMC should repeal its 

existing requirement for NVOCCs to file 

negotiated service arrangements (NSAs) 

or to publish essential terms of NSAs in 

their tariffs as this process is extremely 

cumbersome and is not used by the 

trade in day-to-day business as it does 

not reflect the realities of international 

trade and commerce.’’ NCBFAA/FBCF 

Member Comments. Yusen Logistics, an 

NVOCC, also ‘‘agree[d] with the 

Commission’s proposal to eliminate the 

necessity for NVOCCs to file NSAs.’’ 

Yusen at 3. Connor Global, Mohawk, 

and Thunderbolt support eliminating 

the necessity for NVOCCs to file NSAs. 

Connor Global at 2; Mohawk at 2; 

Thunderbolt at 3. Serra supports 

eliminating the NSA filing requirement 

and publication requirement for 

essential terms and notes the reduction 

in administrative costs and the lack of 

any benefit provided by filing and 

publication. Serra at 2. ‘‘Shipco [an 

NVOCC] agrees with the Commission’s 

position that the NSA filing and 

essential terms publication 

requirements should be eliminated.’’ 

Shipco at 4. Thunderbolt, another OTI, 

also agrees that the NSA filing 

requirement for NVOCCs should be 

eliminated. Thunderbolt at 3. Sefco, also 

an OTI, favors ending the requirement 

to file NSAs with the Commission and 

eliminating 46 CFR part 531 in its 

entirety. Sefco at 2–3. NITL agrees with 

the elimination of the NSA filing and 

essential terms publication 

requirements. NITL at 4. NYNJFFF&BA 

are also ‘‘in favor of eliminating the 

NSA filing and publication 

requirements.’’ NYNJFFF&BA at 4. 

CJ International, customs broker/ 

freight forwarder agrees with the 

Commission’s proposal to remove the 

requirement to file NSAs with the 

Commission and publish essential terms 

in tariffs, stating that ‘‘NSAs, like tariff 

rate filings, are burdensome and costly 

to file and maintain, yet it is unclear 

what the purpose is and who benefits 

from either of these items. Neither tariffs 

or NSAs are ever reviewed by clients.’’ 

CJ International at 2. FedEx states that 

‘‘essential terms serve no purpose’’ and 

supports removing the requirement to 

publish them as well as the definition 

of essential terms in § 531.3(q). FedEx at 

2. 

CaroTrans, an NVOCC, supports 

eliminating the NSA filing and 

publication of essential terms 

requirement, which it contends render 

NSAs unnecessarily burdensome and 

time consuming to use. Carotrans at 4– 

5. CaroTrans, however, still recognizes 

that NSAs can be a useful tool. Id. at 4. 

CaroTrans asserts that the Commission 

should ‘‘amend the regulations 

authorizing and governing NSAs in 

order to make them more flexible. This 

would ensure that NSAs continue to be 

an option for NVOCCs and their 

customers that under some 

circumstances prefer the increased 

formality of the NSA.’’ Id. at 5. 

CaroTrans states that ‘‘the proposed 

reform would substantially improve the 

NSA process without compromising any 

protections intended by the regulations 

for shippers.’’ Id. at 5. 

Livingston International, Inc., an 

NVOCC, noted the benefits of NSAs, but 

asked the Commission ‘‘to amend the 

regulations authorizing and governing 

NSAs in order to make them more 

flexible.’’ Livingston at 5. Livingston 

contends that ‘‘the filing and 

publication requirements in Part 531 

should be eliminated, as they pose an 

unnecessary burden on NVOCCs and 

shippers. Nevertheless, it is Livingston’s 

position that an NSA can serve as a 

useful tool to facilitate ocean 

transportation services for certain 

customers.’’ Id. at 4. Livingston states, 

‘‘an NSA can provide a meaningful 

commitment of cargo from a shipper 

over a longer and specified period of 

time, and can be amended repeatedly to 

provide some ability to adjust to market 

conditions. Furthermore, an NSA can be 

made subject to charges published by an 

NVOCC in its tariff.’’ Id. Livingston 

asserts that amending the regulations to 


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3Specifically, following the promulgation of the 

2017 final rule in Docket No. 16–05, the 

Commission estimated that the NSA filing 

requirement resulted in 162 burden hours to 

NVOCCs. See Narrative Supporting Statement for 

46 CFR part 531 (Mar. 17, 2017), available at 

https://www.reginfo.gov/public/do/ 

DownloadDocument?objectID=72337101. And as 

described below, this final rule eliminates those 

burden hours. The Commission estimates the cost 

of the NSA requirements based on assumptions 

regarding the percentage of burden hours 

attributable to various respondent employees and 

annual salary estimates for those employees. Using 

those estimates, the cost associated with the NSA 

filing requirements is $10,728.37. 

4This final rule also clarifies the revised 

regulatory text in § 531.8. The proposed revisions 

to § 531.8 in the NPRM would have included the 

following provision, ‘‘Each time any part of an NSA 

is amended, the ‘Effective Date’ will be the date of 

the amendment.’’ By providing that the effective 

date for amendments would be the date of the 

amendment, however, this proposed change could 

have been misinterpreted as prohibiting parties 

from setting future effective dates for amendments. 

Accordingly, the final rule makes clear that the 

effective date of an amendment will be either the 

date of the amendment or a future date agreed to 

by the parties. 

5See Comments of Quadrant, Crescent, Geek Net, 

Connor Corp. (a different entity than Connor 

Global), and Bonney Forge. We refer to these 

comments as ‘‘Shipper Comments’’ throughout the 

document. 

make them more flexible ‘‘would ensure 

that NSAs continue to be an option for 

shippers and NVOCCs but with reduced 

regulatory burden.’’ Id. at 5. NITL also 

‘‘believes that NSAs should remain an 

option for shippers and NVOCCs that 

prefer the increased formality of the 

NSA requirements.’’ NITL at 4. ‘‘The 

League also agrees with the Commission 

that the agency can remove any 

unnecessary or burdensome regulatory 

requirements without eliminating the 

NSA option entirely.’’ Id. 

Dart, a tariff publishing vendor, 

advised against removing NSA filing 

requirement. See Dart at 2. ‘‘While many 

are calling for the removal of the NSA 

regulations, I agreed with the comments 

for its continued inclusion and usage, 

while pointing out the obvious that this 

instrument is OPTIONAL. It only effects 

the shippers and OTIs that choose to 

utilize them.’’ Id. Dart advised that the 

Commission should not end the 

SERVCON system or stop requiring 

submission of Service Contracts and 

NSAs. Id. In particular, Dart asserted 

that the filing requirement is critical to 

the FMC’s role as a neutral ‘‘referee’’ in 

trade disputes and assures 

independence from protective 

commercial interests. Dart also argued 

that the compliance costs of the 

requirement are no more than the cost 

of sending an email and that the 

requirement poses no economic burden. 

Id. 

2. Discussion 

Commenters overwhelmingly support 

the Commission’s proposal to eliminate 

the requirement that NSAs be filed with 

the Commission in SERVCON, as well 

as to eliminate the requirement that an 

NVOCC publish the essential terms of 

an NSA. The majority, nevertheless, did 

not call for the complete removal of 

NSAs and part 531. Dart, arguing that 

the Commission should not end the 

filing requirement, was the only 

commenter who submitted any 

opposition to the Commission’s 

proposal to maintain part 531—but to 

eliminate the filing and essential terms 

publication requirements. There was 

also clear support for the continued use 

of NSAs. 

The Commission concurs with the 

statement from Livingston that 

amending the regulations to make them 

more flexible ‘‘would ensure that NSAs 

continue to be an option for shippers 

and NVOCCs but with reduced 

regulatory burden.’’ See Livingston at 5. 

As the Commission has noted 

previously, there does not appear to be 

any regulatory benefit from continuing 

the filing requirement for NSAs, and the 

group intended to benefit from the 

original 2003 NSA rulemaking, 

shippers, have not argued for 

maintaining the requirement. 

In response to Dart’s concerns about 

the need for filed NSAs to permit the 

FMC to address commercial disputes, 

we believe that the recordkeeping 

requirements in § 531.12 will ensure 

adequate Commission oversight. 

NVOCCs must continue to retain NSAs, 

amendments, and associated records for 

five years from the termination of the 

NSA and must provide them 

Commission staff within 30 days of a 

request. These requirements will permit 

the Commission to investigate any 

disputes or issues with respect to 

particular NSAs. We also respectfully 

disagree with Dart’s contention that the 

requirement imposes little to no 

regulatory burden. As discussed below 

in the Rulemaking Analysis section and 

in the Commission’s information 

collection request filed with the Office 

of Management and Budget, removing 

the filing requirement will reduce the 

burden hours for NVOCCs by 162 hours, 

or approximately $10,728.37.3

Eliminating these burdens will provide 

regulatory relief to NVOCCs. 

By way of removing the essential 

terms and NSA filing requirements, but 

still allowing NSAs as an option, the 

Commission can reduce costs and 

preserve choice while allowing a 

vehicle, NSAs, to continue to serve 

those members of the industry that 

prefer the extra formality and options 

allowed by NSAs. The Commission 

believes that while rate and service 

provisions in NSAs may not be ideal for 

NVOCCs and shippers with lower 

shipment volumes, a considerable 

amount of cargo is currently transported 

under NSAs, and they have proven to be 

a valued contract model. As stated by 

CaroTrans, the Commission believes 

this rule will ‘‘substantially improve the 

NSA process without compromising any 

protections intended by the regulations 

for shippers.’’ See CaroTrans at 5. 

Finally, we agree with FedEx that the 

definition of ‘‘statement of essential 

terms’’ in § 531.3 is unnecessary given 

the elimination of the publication 

requirement. Accordingly, this final rule 

deletes that definition.4

B. Allow Non-Rate Economic Terms in 

NRAs 

1. Comments 

NCBFAA has urged the Commission 

to ‘‘specifically authorize NRAs to 

include non-rate economic terms.’’ 

NCBFAA at 11. A number of individual 

NCBFAA/FCBF members provided 

support for ‘‘including economic terms 

such as credit, minimum quantities, 

liquidated damages, etc.’’ Commenters 

at 1. Yusen Logistics requests to include 

non-rate economic terms. Yusen at 2–3. 

Mohawk, an NVOCC, has called for the 

inclusion of ‘‘economic terms, such as 

surcharges, credit terms, minimum 

volume commitments, demurrage, 

detention, per diem, free time, waiting 

time, penalties and/or incentives, 

service standards.’’ Mohawk states: ‘‘We 

often find that our clients are looking to 

incorporate more into our NRAs than 

the current regulations allow, therefore 

we are hopeful that these broader 

economic terms can be approved. In 

many cases these same clients do not 

want to ship under [an] NSA.’’ Id. at 2. 

Connor Global, another NVOCC, would 

like to see the inclusion of credit terms, 

surcharges, free time, waiting time, 

demurrage, detention, and per diem, 

minimum volume commitments, and 

service standards. Connor Global at 2. 

Serra, an NVOCC, requests inclusion of 

‘‘any non-economic terms important to 

both the NVOCC and the shipper in the 

movement of the freight.’’ Serra at 1. 

Parker & Company Worldwide, a Freight 

Forwarder, states that it would like to 

see the same terms allowed as stated 

above, and remarked that looking up 

terms online in tariffs is burdensome. 

Parker at 1. 

A significant number of shipper 

commenters submitted nearly identical 

comments 5 that support allowing nonrate economic terms: 

We do not rely on published tariffs when 

deciding which NVOCC or freight forwarder 


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6We discuss surcharges and pass-through 

assessorial charges in the next section. 

7A rules tariff is defined as ‘‘a tariff or the portion 

of a tariff . . . containing the terms and conditions 

governing the charges, classifications, rules, 

regulations and practices of an NVOCC, but does 

not include a rate.’’ 46 CFR 532.3(c). 

to use. Furthermore, it is our preference to be 

able to negotiate these services, not just the 

rates, without being required to have a formal 

written contract that needs to be filed with 

the Federal Maritime Commission (FMC.) 

. . . filing negotiated contracts/rates are a 

regulatory requirement that serves no real 

purpose but simply adds time and 

administrative costs to process. 

Shipper Comments. 

In addition to the types of terms 

specified above, Vanguard, an NVOCC, 

asks that the following terms be 

permitted: EDI services, Time Volume 

Rates, Liquidated Damages, Freight 

Forwarder Compensation, General Rate 

Increases (GRIs) or other pass-through 

charges from Carriers or Ports, Dispute 

Resolution, Rate or Service 

Amendments, Service Guarantees and/ 

or Service Benchmarks, Rate 

Amendment Processes; etc. Vanguard at 

2. 

NITL also supports expanding NRAs 

to include non-rate economic terms. 

NITL at 5. NITL states, ‘‘allowing 

NVOCCs and shippers to negotiate 

terms different than those set forth in 

the NVOCC’s rules tariff will likely lead 

to more competitive and efficient 

shipping arrangements that meet the 

shipper’s commercial requirements and 

the demands of the market.’’ Id. 

NYNJFFF&BA is also in favor of 

‘‘allowing NRAs to include non-rate 

economic terms.’’ NYNJFFF&BA at 3–4. 

Dart, a tariff publishing vendor, stated 

that there should be a clear distinction 

between what additional terms could be 

included in an NRA compared to an 

NSA. Dart at 3. ‘‘There is no need to 

cross into this area by making the terms 

and conditions conflicting. Both can 

equally coexist and should be allowed 

to remain as viable instruments for use 

by the OTI in support of the shipping 

needs of its customer.’’ Id. FedEx, an 

NVOCC and freight forwarder, calls for 

the rescission of the prohibition against 

NRAs being allowed to include non-rate 

economic terms, and noted the 

importance of the ability to include 

other terms such as credit terms. FedEx 

at 2. 

2. Discussion 

The Commission agrees with the 

many commenters, shippers and 

NVOCCs alike, who are calling for the 

expansion of NRAs to include non-rate 

economic terms. While the Commission 

recognizes the argument made by Dart 

for a clear distinction between what 

additional terms may be included in an 

NRA compared to an NSA, the 

Commission nevertheless believes that 

giving more choice to parties, as the 

majority of commenters support, will 

lead to greater efficiency and more 

competitive shipping arrangements. 

Dart at 3. 

As stated above, commenters have 

called for a variety of new terms to be 

allowed in NRAs: Surcharges, credit 

terms, minimum volume commitments, 

demurrage, detention, per diem, free 

time, waiting time, penalties and/or 

incentives, service standards, EDI 

services, freight forwarder 

compensation, GRIs or other passthrough charges from Carriers or Ports, 

Dispute Resolution, and Rate 

Amendment Processes. The 

Commission recognizes the reduced 

administrative burden, greater 

efficiency, and increased competition 

that can be achieved by permitting the 

inclusion of such terms. While the 

Commission acknowledges the concern 

that allowing non-rate economic terms 

might increase the complexity of some 

NRAs, the Commission nevertheless 

favors removing outdated, unnecessary, 

or unduly burdensome regulations and 

restrictions to make way for more choice 

and options for NVOCCs and shippers. 

The Commission also believes that this 

increased flexibility for NRAs does not 

warrant a bright line distinction 

between NSAs and NRAs. Allowing the 

full range of non-rate economic terms in 

NRAs will clearly provide a benefit to 

members of the industry, and, therefore, 

the Commission is in favor of allowing 

for the inclusion of such terms in 

NRAs.6 Moreover, the broadening of the 

terms allowed in NRAs will not 

diminish the ability of NVOCCs and 

shippers that wish to form more 

complex agreements through an NSA. 

NSAs will remain a viable commercial 

pricing instrument for shippers and 

NVOCCs alike. 

C. Third-Party Pass-Through Assessorial 

Charges 

1. Comments 

As discussed above, a number of 

commenters requested that the 

Commission permit NVOCCs to include 

GRIs and other pass through charges 

from carriers and ports in NRAs. In 

addition, FedEx requested the 

Commission to clarify the role of thirdparty pass-through assessorial charges. 

FedEx at 2. FedEx requests ‘‘that text 

clarifying the role of third-party passthrough assessorials, such as GRIs 

(General Rate Increases) be included in 

the regulations.’’ Id. FedEx states that 

‘‘NVOCCs’ ability to keep up with 

assessorial fees passed down by carriers 

is especially challenging. These rates 

sometimes change weekly in the most 

common lanes. Often ocean carriers 

announce the establishment and amount 

of an assessorial 30 days in advance, but 

the amount decreases over the 30 days, 

and is only finalized the day before the 

effective date.’’ Id. FedEx notes that 

‘‘NVOCCs have very limited control 

over this process . . . assessorial costs 

are generally passed on to the shipper 

. . . [t]he NVOCC’s process is laborintensive.’’ Id. FedEx proposes that 

NRAs be allowed ‘‘to contain a clause 

stating that assessorial charges by third 

parties will be passed through to the 

customer’’ without mark up or being 

discounted. Id. FedEx also proposes 

‘‘that NRAs also be permitted to contain 

a clause referring the user to the 

NVOCC’s tariff, or other website 

location if/when tariffs are eliminated, 

for the assessorial amounts charged by 

third parties.’’ Id. 

Serra also requests allowance for 

‘‘pass through charges to be referenced 

in an NRA and applied with full shipper 

knowledge and understanding.’’ Serra at 

2. Serra states: 

Surcharges, notably GRls have become a 

wild card factor in final rate costs. Since 

regulations require ocean carriers to 

announce increases in surcharges 30 days in 

advance, the industry routinely files and 

provides notice. Then when the market 

cannot sustain all or some of the increase, the 

surcharges are cancelled or rolled to a future 

date. This is destabilizing for all industry 

participants and particularly difficult for 

NVOCCs to manage. 

Id. 

2. Discussion 

The Commission already permits 

NVOCCs to pass along third-party 

assessorial charges to shippers under 

NRAs when certain conditions are met. 

Specifically, assessorial charges and 

other surcharges must be applied in 

accordance with the rules tariff and the 

NRA must inform the shipper of their 

applicability.7 The Commission has not, 

however, traditionally allowed NRA 

rates to be increased via GRIs. Although 

part 532 does not expressly discuss 

assessorial charges, the preamble to the 

2011 final rule establishing NRAs states: 

As is the case with respect to tariff rates, 

the rate stated in an NRA may specify the 

inclusion of all charges (an ‘‘all-in’’ rate) or 

specify the inclusion of only certain 

accessorials or surcharges. Without 

specifying otherwise, the NRA would only 

replace the base ocean freight rate or 

published tariff rate. If the rate contained in 

an NRA is not an all-in rate, the NRA must 


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specify which surcharges and accessorials 

from the rules tariff will apply. To the extent 

surcharges or accessorials published in the 

NVOCC’s rules tariff will apply, the NRA 

must state that the amount of such surcharges 

and accessorials is fixed once the first 

shipment has been received by the NVOCC, 

until the last shipment is delivered. Rates 

stated in an NRA may not be increased via 

a GRI. 

76 FR at 11354. 

Since issuance of the 2011 final rule, 

however, the Commission has clarified 

through case law the treatment of passthrough assessorial charges for which no 

specific amount is fixed in either the 

NRA or the rules tariff. Specifically, in 

Gruenberg-Reisner v. Overseas Moving 

Specialists, Inc., 34 S.R.R. 613, 622–623 

(FMC 2016), the Commission found that 

an NVOCC was entitled to collect passthrough assessorial charges without any 

markup, which it substantiated with 

invoices. The NVOCC described in its 

rules tariff the types of charges that were 

not included in the rate and provided 

that any of those charges assessed 

against the cargo would be for the 

account of the cargo, even if the NVOCC 

was responsible for the collection 

thereof. Id. The Commission found that 

Respondent was ‘‘entitled to payment 

for . . . destination terminal handling 

charges and the additional floor fee, and 

. . . local port fees, customs fees, 

parking permit, and elevator fee because 

these were reasonable accessorial 

charges that Respondent passed through 

to the Claimants without any markup.’’ 

Id. at 623. The Commission also stated 

that ‘‘assessing pass-through charges 

with no markup is a just and reasonable 

practice, in accordance with [section] 

41102(c).’’ Id at 622. 

The Commission has determined to 

incorporate the interpretations in 

Gruenberg-Reisner, subject to a few 

clarifications, into part 532. 

Specifically, pass-through assessorial 

charges need not be fixed at the time of 

receipt of the first shipment, in light of 

the Commission’s decision in 

Gruenberg-Reisner, which found it 

permissible for an NVOCC to collect 

pass-through assessorial charges that 

were not fixed upon receipt. 

In summary, the final rule adopts the 

following requirements. If the NRA rate 

is not an ‘‘all-in rate’’ the NRA must 

specify which surcharges or assessorial 

charges will apply by either including 

the specific additional charges in the 

NRA itself or referencing in the NRA the 

specific charges contained in the rules 

tariff. For applicable charges contained 

in the rules tariff, the charges and 

amounts for those charges (if the 

amounts are specified in the tariff) are 

fixed once the first shipment has been 

received by the NVOCC until the last 

shipment is delivered, subject to further 

amendment of the NRA by mutual 

agreement of the NVOCC and shipper. 

For pass-through charges and ocean 

carrier GRIs for which the NRA or rules 

tariff does not include a specified 

amount, the NVOCC may invoice the 

shipper for only those charges the 

NVOCC actually incurs, with no 

markup. The Commission is removing 

the prohibition on the pass-through of 

ocean carrier GRIs in order to increase 

efficiency and flexibility within the 

NRA framework. 

D. Authorize Amendments and Shipper 

Acceptance Upon Booking 

1. Comments 

A number of individual NCBFAA/ 

FCBF members proposed that the 

Commission authorize amendments to 

NRAs and allow acceptance and 

booking of cargo ‘‘to suffice as 

acceptance of the rate, in lieu of a 

written agreement.’’ NCBFAA/FCBF 

Member Comments at 1. Yusen also 

favors authorizing amendments and 

believes that ‘‘acceptance of the NRA 

rate quote by either signing the 

document or otherwise having a written 

agreement’’ is ‘‘an irrelevant and 

repetitive requirement’’ Yusen at 2. 

Connor Global asks for flexibility in 

amending NRAs and acceptance upon 

booking. Connor Global at 2. Mohawk 

supports allowing amendments and 

acceptance upon booking. Mohawk at 2. 

Serra argues that allowing NRAs ‘‘to be 

amended would cut down on the reissuance of new NRAs necessitated by 

the dynamic shipping environment.’’ 

Serra at 2. Serra believes that ‘‘this 

should extend even to freight that has 

been received.’’ Id. Serra asks the 

Commission ‘‘to recognize that 

tendering or booking of cargo 

constitutes acceptance of the rate and 

terms quoted in an NRA.’’ Id. 

Thunderbolt also believes tender of the 

cargo by the shipper to the OTI should 

constitute acceptance of an NRA. 

Thunderbolt at 2. Sefco favors ‘‘allowing 

the act of booking cargo to be 

considered acceptance of a rate under 

the terms of an NRA.’’ Sefco at 3. Sefco 

argues that allowing modification and 

acceptance by booking ‘‘is more in tune 

with market conditions and best 

business practices.’’ Sefco at 2. 

NCBFAA states that ‘‘modification of 

NRAs eliminates an unnecessary 

restriction, provides flexibility in a fluid 

marketplace, and allows [NVOCCs] to be 

responsive to their customers.’’ 

NCBFAA at 7. 

Livingston supports the proposal ‘‘to 

eliminate [§ 532.5(e)] and to expand the 

NRA exemption in 46 CFR part 532 to 

allow for modification of NRAs at any 

time upon mutual agreement between 

an NVOCC and a shipper.’’ Livingston at 

3. ‘‘Livingston also supports the further 

change proposed by the Commission to 

modify [§ 532.5(c)] to allow a booking 

request made pursuant to an NRA to 

constitute the required shipper 

acceptance of such NRA.’’ Id. CaroTrans 

concurs. CaroTrans at 3. Shipco also 

concurs. Shipco at 2–3. 

Several commenters disagreed, 

however, with the Commission’s 

proposal to provide specific language 

for the notice to shippers that booking 

would constitute acceptance of the NRA 

terms. Livingston argues that ‘‘requiring 

particular wording on an NRA regarding 

whether booking constitutes acceptance 

adds regulatory burden instead of 

removing it.’’ Id. Shipco states that 

‘‘requiring specific wording would 

merely raise the risk of noncompliance 

for NVOCCs without providing any real 

benefit to shippers.’’ Shipco at 2–3. 

NYNJFFF&BA goes even further, 

arguing that ‘‘the requirement for a 

‘prominent written notice’ be removed 

and the wording of any such notice be 

left to the NVOCC to determine what 

works best for their system of 

communication.’’ NYNJFFF&BA at 2. 

NYNJFFF&BA states that ‘‘it is an 

excessive formulaic governmental 

requirement with no real business/ 

regulatory/legal purpose to insist that an 

NRA rate offer is not accepted unless 

there is a prominent notice that a 

booking is an acceptance of the NRA.’’ 

Id. at 3. NYNJFFF&BA are also in ‘‘favor 

of allowing NRAs to be amended after 

the receipt of the initial shipment.’’ Id. 

In addition, they favor allowing the 

shipper to agree in writing ‘‘to accept a 

change in the NRA terms after the 

carrier or its agent has received the 

cargo.’’ Id. 

CJ International, a freight forwarder 

and customs broker, states: 

We believe that the Commission should 

eliminate the requirement that the shipper 

must indicate acceptance of the NRA rate by 

signing the document or memorializing 

acceptance in some other written format. 

Though we do request our clients indicate 

their approval by either signing our rate 

quote or by sending confirmation back via 

email, in many cases they simply tender 

cargo as acceptance of the NRA rate with the 

understanding that the agreed NRA rate will 

apply. 

CJ International at 1. 

Dart cautions that NRA amendments 

should be denoted with a date and time 

stamp, an amendment number, and a 

written response before the cargo is 

accepted.’’ Dart at 3. Specifically, Dart 

states: 


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At the very least, a booking would have to 

be supported by a written acceptance of the 

NRA, contain the NRA number and 

specifically refer to the appropriate 

amendment number. If not, issues will arise 

with parties working on different ‘‘versions’’, 

only to find out later the final costs were not 

all specifically agreed to as supported by the 

many comments who noted the fluid and 

changing conditions of ocean shipments. 

Things can change hourly in some cases and 

the requirement of written acceptance and 

specific language compelling the NRA 

number and subsequent amendment number 

should be included to avoid confusion and 

needless disputes that could end up in court. 

Id. 

NITL supports allowing amendments 

to NRAs and shipper acceptance upon 

booking, but with reservations. NITL at 

6–7. ‘‘NITL supports providing parties 

an ability to amend an NRA at any time 

but only to the extent that the 

amendment is based on a mutual 

agreement between the parties that is 

not in the form of the NVOCC’s tariff, 

bill of lading or other shipping 

document not subject to mutual 

negotiation.’’ NITL at 6. NITL believes 

‘‘[t]he mutual agreement could be in the 

form of an informal writing such as an 

email or other electronic exchange 

which reflects the mutuality of the 

agreement.’’ Id. at 6. 

NITL believes that the proposal to 

allow acceptance of an NRA through the 

act of booking in addition to the current 

method of acceptance which allows 

acceptance through memorialization in 

an email or writing, has the potential to 

create confusion over the enforceability 

of an NRA. Id. at 6. NITL believes this 

could also cause confusion with ‘‘the 

ability of a shipper to cancel a booking 

if commercial circumstances change 

prior to the tender of the cargo.’’ Id. 

NITL, therefore, ‘‘with respect to a 

shipper’s ‘‘acceptance’’ of an NRA, the 

League prefers the current regulations 

which require a ‘‘meeting of the minds’’ 

between the parties to be reflected in a 

formal or informal writing, such as an 

email.’’ Id. at 6. Nevertheless, NITL 

recommends that ‘‘if the FMC were still 

to decide to provide greater flexibility 

for ‘‘acceptance’’ of NRAs,’’ then 

‘‘acceptance of the NRA should be tied 

to the shipper’s tender of the cargo,’’ as 

acceptance through tendering of cargo 

‘‘is more consistent with existing 

transportation practices and broader 

commercial contract principles.’’ Id. at 

7. ‘‘NITL strongly supports the 

Commission’s proposed requirement 

that each NVOCC seeking to recognize 

the alternate form of acceptance must 

incorporate a prominent written notice 

to that effect on each applicable NRA or 

amendment to avoid any risk of surprise 

and potential disputes.’’ Id. at 7. RBH, 

a shipper, states that all that should be 

necessary for acceptance of an NRA is 

‘‘the preparation of a good quotation 

and acceptance of the charges associated 

with a shipment.’’ RBH at 1. 

Vanguard, who favors requiring 

prominent written notice, suggested the 

following language: ‘‘Your booking and/ 

or tendering of cargo is considered 

acceptance of the NRA rates and terms 

that were negotiated with you for the 

shipment of the cargo.’’ Vanguard at 2. 

Vanguard also believes that NRAs 

should be allowed ‘‘to be amended at 

any time before, upon or after cargo 

receipt,’’ as well as ‘‘extended, expired, 

or cancelled.’’ Id. at 2. Shipco, however, 

‘‘does not believe that the Commission 

should require any particular wording 

on an NRA regarding whether booking 

constitutes acceptance.’’ Shipco at 3. 

CaroTrans also does not believe any 

specific wording should be required to 

constitute acceptance. CaroTrans at 3. 

‘‘Requiring specific wording would 

merely raise the risk of noncompliance 

for NVOCCs without providing any real 

benefit to shippers.’’ Id. at 4. Serra is not 

of the opinion ‘‘that it is necessary for 

an NVOCC to have a prominent notice 

that booking is considered an 

acceptance of the NRA.’’ Serra at 2. 

Serra also does not ‘‘believe that the 

form and wording of such a notice 

should be a matter worthy of 

government interest and regulation.’’ Id. 

ABS Consulting stated: ‘‘Further 

providing the shippers[’] acceptance by 

making a booking with the NVOCC also 

aligns nicely with other shipping modes 

and how shippers and forwarders 

(carriers) interact today.’’ ABS at 1. ‘‘I 

would recommend that the FMC go 

even one step further, to allowing the 

NVOCC to receive the cargo prior to the 

acceptance (booking) of the cargo by the 

customer.’’ Id. Asia Shipping also states 

that they ‘‘would recommend that the 

FMC allow[] the NVOCC to receive the 

cargo prior to the acceptance (booking) 

of the cargo by the customer.’’ Asia at 

2. 

FedEx states that ‘‘[a]llowing 

acceptance to be demonstrated by the 

shipper’s booking with the NVOCC after 

receipt of the NRA (with explanatory 

text) conforms with the current shipping 

environment.’’ FedEx at 2. FedEx, 

moreover, states that ‘‘[a]llowing 

NVOCCs and shippers to modify 

existing NRAs with mutual agreement, 

instead of establishing a new NRA, 

reduces bureaucracy.’’ Id. 

DJR Logistics states that ‘‘the lifting of 

the requirement of having our customers 

formally agree to the NRA and allow for 

the acceptance of a booking of cargo to 

confirm their agreement to be in the 

interest of the shipping public.’’ DJR at 

1. DJR also believes NRAs should be 

allowed to be amended ‘‘as market 

conditions change.’’ Id. ‘‘The ability to 

adjust the NRA as the market conditions 

change would eliminate[] hours of work 

and would benefit the Shipping Public 

by allowing us to reduce the rate being 

offered earlier than when the NRA 

expires under the current system.’’ Id. 

2. Discussion 

The Commission recognized in the 

NPRM that NVOCCs and their 

customers ‘‘should not be compelled to 

create a new NRA in every instance 

simply because the rules do not 

currently provide for amendment.’’ 82 

FR at 56786. The Commission has also 

acknowledged that it is appropriate to 

‘‘permit NRAs to be extended or 

amended upon acceptance or agreement 

by the shipper customer.’’ Id. 

Acknowledging the utility of acceptance 

by booking, the Commission, 

furthermore, requested input on the 

practice—as well as whether prominent 

written notice should be required. The 

Commission also sought input on 

whether or not specific wording should 

be required. Id. 

There were no commenters who 

opposed allowing amendments. The 

Commission recognizes that the smaller 

cargo volume of NRAs as well as the 

short term and transactional nature of 

NRAs merit greater flexibility and the 

benefits of allowing amendments to 

NRAs are recognized by the industry 

and the Commission alike. Some 

commenters, like Serra and 

NYNJFFF&BA, disagreed with the 

proposal to limit the applicability of 

NRA amendments to prospective 

shipments and urged the Commission to 

allow for ‘‘a change in the NRA terms 

after the carrier or its agent has received 

the cargo.’’ NYNJFFF&BA at 3. The 

Commission is denying this request and 

moving forward with the proposed 

language limiting amendments to 

prospective shipments. Allowing such 

‘‘retroactive’’ amendments would be a 

drastic departure from the current 

regulatory regime governing the ocean 

transportation of goods. No matter the 

specific means of contracting for such 

services, i.e., tariff, service contract, 

NSA, or NRA, the Commission has 

consistently limited the applicability of 

amendments to prospective shipments, 

and the commenters have not presented 

a compelling reason to make such a 

dramatic change. NRAs, in particular, 

may be established and amended with 

little formality. Thus, retroactive 

amendments in the NRA context present 

an increased risk of error and 

disagreement over the applicable terms. 

In addition, the Commission believes 


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8The proposed rule required that this notice be 

in bold or uppercase letters. To help ensure that 

shippers see the notice, the final rule requires that 

the notice be in bold and uppercase letters. 

that if the NVOCC already has the cargo 

at the time of the amendment, there 

would be an imbalance in bargaining 

power between the NVOCC and shipper 

and an increased possibility that a 

shipper would feel pressured to submit 

to amended terms with which they 

might not otherwise agree. In order to 

avoid this situation and ensure that any 

amendments truly reflect mutual 

agreement by the parties, the 

applicability of amendments is limited 

to prospective shipments. 

The process for the parties reaching 

agreement for NRAs and amendments 

presents another area of disagreement. 

The majority of commenters support 

acceptance upon booking with no 

writing required. NITL and Dart both 

argue, however, that having a formal 

writing will help to avoid confusion. 

The Commission does not share 

NITL’s concerns and, under the final 

rule, an NRA may become binding and 

enforceable when the terms of an NRA 

are agreed to by both NRA shipper and 

NVOCC. The Commission is adding 

language to § 532.5 to clarify this point. 

The shipper is considered to have 

agreed to the terms of the NRA when: 

(1) The shipper provides the NVOCC 

with a signed agreement; (2) sends the 

NVOCC written communication 

indicating agreement to the NRA terms; 

or (3) books a shipment after receiving 

prominent notice that booking 

constitutes acceptance. 

The Commission believes that 

prominent written notice, with fixed 

language stating that a booking 

constitutes acceptance, will negate the 

potential confusion about which Dart is 

concerned. The requirement that Dart 

calls for, specifically that a booking 

would need written acceptance, with 

the NRA number and an amendment 

number, would be overly burdensome 

for both shippers and NVOCCs. 

The Commission also recognizes the 

request of ABS Consulting and Asia to 

allow ‘‘the NVOCC to receive the cargo 

prior to the acceptance (booking) of the 

cargo by the customer.’’ The 

Commission believes, however, that to 

allow tender prior to agreement would 

create the potential for an unfair 

environment for shippers and an 

increase in transactional confusion. In a 

situation where an NVOCC is sending 

multiple rate quotes during a short 

period of time, allowing tender to 

constitute shipper acceptance would 

substantially increase the likelihood of 

disagreement over which quoted terms 

constitute the NRA. In order to avoid 

such disputes, the Commission is 

retaining the requirement that the NRA 

be agreed to by both the shipper and 

NVOCC prior to the receipt of cargo by 

the NVOCC and including ‘‘prior to the 

receipt of cargo’’ in the text of § 532.5(c). 

Prominent written notice will alert 

shippers that booking will constitute 

acceptance of the NRA and avoid 

confusion between shippers and 

NVOCCs. Though Serra and 

NYNJFFF&BA argue against the 

requirement of prominent written 

notice, the Commission believes 

without such notice the potential for 

confusion and disputes is too high. A 

number of commenters, including Serra, 

CaroTrans, NYNJFFF&BA, and Shipco 

also argue against requiring specific 

fixed language in the prominent written 

notice. The requirement for specific 

language, they argue, serves no purpose 

and raises the risk of noncompliance. 

The Commission disagrees with these 

contentions. Without specific language, 

the burden and risk of noncompliance 

for NVOCCs would increase, as they 

would be required to craft statements 

that qualify as ‘‘prominent written 

notice’’ an arguably ambiguous 

standard. In contrast, specific fixed 

language provides necessary clarity and 

certainty. 

As discussed, above, Vanguard 

suggested the following alternative 

language for the prominent written 

notice: ‘‘Your booking and/or tendering 

of cargo is considered acceptance of the 

NRA rates and terms that were 

negotiated with you for the shipment of 

the cargo.’’ The Commission believes 

that revising the proposed notice 

language to incorporate certain aspects 

of Vanguard’s suggested language will 

improve the language. In particular, the 

Commission’s proposed language noted 

that the shipper may agree to the NRA 

by booking. This could be read as 

allowing the shipper to determine 

whether booking constitutes acceptance 

and lead to confusion. Vanguard’s 

suggested language, on the other hand, 

makes clear the booking will be 

considered acceptance of the NRA. 

Accordingly, this final rule adopts the 

following notice language: ‘‘THE 

SHIPPER’S BOOKING OF CARGO 

AFTER RECEIVING THE TERMS OF 

THIS NRA OR NRA AMENDMENT 

CONSTITUTES ACCEPTANCE OF THE 

RATES AND TERMS OF THIS NRA OR 

NRA AMENDMENT.’’ 8 We also view 

the language ‘‘acceptance of the NRA 

rates and terms that were negotiated 

with you for the shipment of the cargo,’’ 

as suggesting that the required language 

be included somewhere other than the 

NRA terms transmitted to the shipper. 

To ensure that the shipper is aware of 

this notice, the final rule retains the 

proposed rule’s requirement that the 

notice be included in the NRA terms, 

and includes clarifying language to that 

effect. 

E. Elimination of all Tariff Publishing 

Requirements 

1. Comments 

A number of individual NCBFAA/ 

FCBF members submitted the same 

request that the Commission ‘‘entirely 

exempt NVOCCs from publishing 

negotiated rate arrangements (NRAs) 

and filing requirements.’’ NCBFAA/ 

FCBF Member Comments at 1. Parker, a 

freight forwarder, argues that tariff filing 

has become outdated. Parker at 1. Parker 

states that ‘‘as a customer we never look 

at the tariffs we rely on the written 

quotations.’’ Id. Mohawk ‘‘strongly 

urge[s] the Commission to eliminate the 

need for NVOCCs to file Rate Tariffs.’’ 

Mohawk at 3. Mohawk states that ‘‘no 

shippers ever shop for rates in any of 

the remaining Rate Tariffs. Instead they 

ask for quotes via email or through webbased rate sourcing that have long ago 

stopped the need to look elsewhere. 

Tariffs are an archaic throwback to a 

time long gone . . . .’’ Id. 

Thunderbolt supports the 

‘‘elimination of the need for NVOCC’s to 

file Rate Tariffs.’’ Thunderbolt at 3. RBH 

states ‘‘the publishing of tariffs is an 

outdated way of providing information 

that is no longer used and adds to 

additional expenses for our carriers that 

could be better served by offering more 

competitive rates without this clerical 

burden.’’ RBH at 1. Vanguard states that 

‘‘tariffs are not used by shippers,’’ and 

requests that the Commission, ‘‘remove 

the requirement to provide public 

access to shippers to NVOCC Rules 

tariff.’’ Vanguard at 2. Serra has asked 

the Commission to ‘‘seriously study the 

possibility of using its exemption 

authority to remove the tariff publishing 

requirements for NVOCCs.’’ Serra at 2. 

Serra states that ‘‘the removal of the 

requirement to publish tariffs will not 

be detrimental to the shipping public 

and actually lead to a reduction in costs 

that will assist economic growth.’’ Id. 

Serra supports ‘‘the elimination of tariff 

publishing regulations both for OTI 

NVOCCs and ocean common carriers as 

they are simply not used and thus 

provide no benefit to the shipping 

public.’’ Id. at 3. NYNJFFF&BA supports 

‘‘removal of OTI NVOCCs Tariff and 

Tariff Publishing Requirements.’’ 

NYNJFFF&BA at 5. 

Lastly, Connor Global also ‘‘urges the 

Commission to eliminate the 

requirement for NVOCCs to file rate 


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tariffs.’’ Connor Global at 3. Connor 

Global argues that ‘‘they are an archaic 

method of pursuing rates when in 

today’s market rates are requested by 

email or accessed via web portals.’’ Id. 

at 3. Connor Global also argues that it 

is a burden to file tariffs, nobody 

accesses them, and they provide no 

benefit. Id. at 3. 

2. Discussion 

The Commission has considered the 

request to eliminate all tariff publishing 

requirements. Clearly a number of 

commenters have argued that rate tariffs 

are archaic and not utilized. 

As an initial matter, the Commission 

did not propose or consider the 

elimination of all tariff filing 

requirements for NVOCCs in the NPRM 

and such a change is outside the scope 

of this rulemaking. Moreover, data from 

the Commission’s Bureau of Trade and 

Analysis demonstrates that 71 percent 

of NVOCCs still publish tariff rates 

exclusively. With such widespread use, 

the Commission does not believe that 

rate tariffs are outdated, not used, or of 

no benefit. Rate tariffs provide shippers 

access to ocean freight shipping in a 

non-discriminatory way. Rate tariffs are 

a useful tool for the shipping public and 

their demise would not be consistent 

with the Commission’s approach to 

enhancing flexibility and choice. 

F. Summary of Post Final Rule NSA/ 

NRA Differences 

To summarize the key differences 

between NSAs and NRAs in light of the 

changes made by this final rule, the 

Commission has prepared the following 

table: 

NSA NRA 

Rates and Terms ............................ • Must include terms listed in 46 

CFR 531.6(a).

• May include any other terms. ....

• Must include the rate and any applicable non-rate economic terms. 

• Must include any applicable surcharges and assessorial charges 

not included in the rate, including pass-through charges. 

Acceptance ...................................... • Must be signed by NVOCC and 

shipper.

Shipper may accept terms by: 

• Signing agreement. 

• Communicating acceptance by writing, including by email. 

• Booking a shipment after receipt of NRA terms, if NVOCC has included required notice. 

Enforceability ................................... • Binding upon signature of the 

parties.

• Binding upon shipper: (1) Providing NVOCC with signed agreement; (2) sending written communication accepting NRA terms; or 

(3) booking shipment after receiving prominent notice. 

Filing ................................................ • No filing requirement ................. • No filing requirement. 

Publication ....................................... • No publication requirement ........ • No publication requirement. 

V. Rulemaking Analyses and Notices 

Congressional Review Act 

The rule is not a ‘‘major rule’’ as 

defined by the Congressional Review 

Act, codified at 5 U.S.C. 801 et seq. The 

rule will not result in: (1) An annual 

effect on the economy of $100,000,000 

or more; (2) a major increase in costs or 

prices; or (3) significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

the ability of United States-based 

companies to compete with foreignbased companies. 5 U.S.C. 804(2). 

Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(codified as amended at 5 U.S.C. 601– 

612) provides that whenever an agency 

promulgates a final rule after being 

required to publish a proposed 

rulemaking under the Administrative 

Procedure Act (APA) (5 U.S.C. 553), the 

agency must prepare and make available 

a final regulatory flexibility analysis 

(FRFA) describing the impact of the rule 

on small entities, unless the head of the 

agency certifies that the rulemaking will 

not have a significant economic impact 

on a substantial number of small 

entities. 5 U.S.C. 604–605. The 

Chairman of the Federal Maritime 

Commission certifies that this final rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

The Commission recognizes that the 

majority of businesses affected by these 

rules qualify as small entities under the 

guidelines of the Small Business 

Administration. The rule as to part 531 

(NSAs) poses no economic detriment to 

small businesses. In this regard, the rule 

pertains to an NSA entered into between 

a NVOCC and a shipper, which is an 

optional pricing arrangement that 

benefits the shipping public and 

relieves NVOCCs from the burden of the 

statutory tariff filing requirements in 46 

U.S.C. 40501. In that the rule eliminates 

the requirements that NVOCCs file 

NSAs with the Commission and publish 

essential terms of such NSAs, the 

regulatory burden on NVOCCs utilizing 

NSAs is reduced. The rule as to part 532 

(NRAs) establishes an optional method 

for NVOCCs to amend an NRA, permits 

additional terms to be included in 

NRAs, and expands the ways a shipper 

may accept the terms of an NRA or 

amendment thereto, to be used at the 

NVOCC’s discretion. In that the rule 

eliminates the prohibition on 

amendments to NRAs after an initial 

shipment is received by the carrier and 

permits NVOCCs to more flexibly create 

and amend such NRAs, the regulatory 

burden on NVOCCs utilizing NRAs is 

reduced. 

National Environmental Policy Act 

Upon completion of an environmental 

assessment, the Commission issued a 

Finding of No Significant Impact 

(FONSI) in conjunction with the NPRM, 

determining that this rulemaking would 

not constitute a major Federal action 

significantly affecting the quality of the 

human environment within the meaning 

of the National Environmental Policy 

Act of 1969, 42 U.S.C. 4321 et seq., and 

that preparation of an environmental 

impact statement was not required. No 

petitions for review were filed, and the 

FONSI became final on December 10, 

2017. The FONSI and environmental 

assessment are available for inspection 

at the Commission’s Electronic Reading 

Room at: http://www.fmc.gov/17-10, and 

at the Docket Activity Library at 800 

North Capitol Street NW, Washington, 

DC 20573, between 9 a.m. to 5 p.m., 

Monday through Friday, except Federal 

holidays. Telephone: (202) 523–5725. 

Executive Order 12988 (Civil Justice 

Reform) 

This final rule meets the applicable 

standards in E.O. 12988 titled, ‘‘Civil 

Justice Reform,’’ to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3501–3521) requires an 

agency to seek and receive approval 

from the Office of Management and 

Budget (OMB) before collecting 

information from the public. 44 U.S.C. 


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3507. The agency must submit 

collections of information in rules to 

OMB in conjunction with the 

publication of the notice of proposed 

rulemaking. 5 CFR 1320.11. The 

information collection requirements for 

part 531, NVOCC Service Arrangements, 

and Part 532 NVOCC Negotiated Rate 

Arrangements are currently authorized 

under OMB Control Numbers 3072– 

0070: 46 CFR part 531, NVOCC Service 

Arrangements, and 3072–0071: 46 CFR 

part 532—NVOCC Negotiated Rate 

Arrangements, respectively. In 

compliance with the PRA, the 

Commission submitted the proposed 

revised information collections to the 

Office of Management and Budget. 

Notice of the revised information 

collections was published in the NRPM 

and public comments were invited. 82 

FR at 56781, 56787. Comments received 

regarding the proposed changes, as well 

as the Commission’s responses, are 

addressed above. No comments 

specifically addressed the revised 

information collections in parts 531 and 

532. 

As discussed above, the final rule 

eliminates the requirement that 

NVOCCs file NSAs with the 

Commission and the requirement that 

NVOCCs publish the essential terms of 

NSAs. Public burden for the collection 

of information pursuant to part 531, 

NVOCC Service Arrangements, as 

revised, would comprise 79 likely 

respondents and an estimated 3,328 

annual instances. The final rule will 

significantly reduce the burden estimate 

from 831 hours to 127 hours, a 

difference of 704 hours. 

The final rule also: (1) Permits NRAs 

to be modified after the receipt of the 

initial shipment by the NVOCC; (2) 

permits NVOCCs to incorporate non-rate 

economic terms; (3) permits shipper 

acceptance of the NRA or amendment 

by booking a shipment thereunder, 

subject to the NVOCC incorporating in 

each NRA or amendment a prominent 

written notice that booking constitutes 

acceptance, the text of which is 

specified in part 532. Accordingly, the 

final rule will result in no changes to 

the information collection for part 532, 

NVOCC Negotiated Rate Arrangements. 

Regulation Identifier Number 

The Commission assigns a regulation 

identifier number (RIN) to each 

regulatory action listed in the Unified 

Agenda of Federal Regulatory and 

Deregulatory Actions (Unified Agenda). 

The Regulatory Information Service 

Center publishes the Unified Agenda in 

April and October of each year. You 

may use the RIN contained in the 

heading at the beginning of this 

document to find this action in the 

Unified Agenda, available at http://

www.reginfo.gov/public/do/ 

eAgendaMain. 

List of Subjects 

46 CFR Part 531 

Freight, Maritime carriers, Report and 

recordkeeping requirements. 

46 CFR Part 532 

Exports, Non-vessel-operating 

common carriers, Ocean transportation 

intermediaries. 

For the reasons stated in the 

supplementary information, the Federal 

Maritime Commission amends 46 CFR 

parts 531 and 532 as follows: 

PART 531—NVOCC SERVICE 

ARRANGEMENTS 

■ 1. The authority citation for part 531 

continues to read as: 

Authority: 46 U.S.C. 40103. 

■ 2. Revise § 531.1 to read as follows: 

§ 531.1 Purpose. 

The purpose of this part is to facilitate 

NVOCC Service Arrangements (‘‘NSAs’’) 

as they are exempt from the otherwise 

applicable provisions of the Shipping 

Act of 1984 (‘‘the Act’’). 

■ 3. Revise § 531.3 to read as follows: 

§ 531.3 Definitions. 

When used in this part: 

(a) Act means the Shipping Act of 

1984 as amended by the Ocean 

Shipping Reform Act of 1998; 

(b) Affiliate means two or more 

entities which are under common 

ownership or control by reason of being 

parent and subsidiary or entities 

associated with, under common control 

with, or otherwise related to each other 

through common stock ownership or 

common directors or officers. 

(c) Amendment means any change to 

an NSA which has prospective effect 

and which is mutually agreed upon by 

all parties to the NSA. 

(d) Commission or FMC means the 

Federal Maritime Commission. 

(e) Common carrier means a person 

holding itself out to the general public 

to provide transportation by water of 

passengers or cargo between the United 

States and a foreign country for 

compensation that: 

(1) Assumes responsibility for the 

transportation from the port or point of 

receipt to the port or point of 

destination; and 

(2) Utilizes, for all or part of that 

transportation, a vessel operating on the 

high seas or the Great Lakes between a 

port in the United States and a port in 

a foreign country, except that the term 

does not include a common carrier 

engaged in ocean transportation by ferry 

boat, ocean tramp, or chemical parcel 

tanker, or by a vessel when primarily 

engaged in the carriage of perishable 

agricultural commodities: 

(i) If the common carrier and the 

owner of those commodities are wholly 

owned, directly or indirectly, by a 

person primarily engaged in the 

marketing and distribution of those 

commodities and 

(ii) Only with respect to those 

commodities. 

(f) Effective date means the date upon 

which an NSA or amendment is 

scheduled to go into effect by the parties 

to the NSA. An NSA or amendment 

becomes effective at 12:01 a.m. Eastern 

Standard Time on the beginning of the 

effective date. The effective date cannot 

be prior to the date of the NSA or 

amendment. 

(g) Expiration date means the last day 

after which the entire NSA is no longer 

in effect. 

(h) NSA shipper means a cargo owner, 

the person for whose account the ocean 

transportation is provided, the person to 

whom delivery is to be made, a 

shippers’ association, or an ocean 

transportation intermediary, as defined 

in section 3(17)(B) of the Act (46 U.S.C. 

40102(16)), that accepts responsibility 

for payment of all applicable charges 

under the NSA. 

(i) NVOCC Service Arrangement 

(‘‘NSA’’) means a written contract, other 

than a bill of lading or receipt, between 

one or more NSA shippers and an 

individual NVOCC or two or more 

affiliated NVOCCs, in which the NSA 

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. 

The NSA may also specify provisions in 

the event of nonperformance on the part 

of any party. 

(j) Rules tariff means a tariff or the 

portion of a tariff, as defined by 46 CFR 

520.2, containing the terms and 

conditions governing the charges, 

classifications, rules, regulations and 

practices of an NVOCC, but does not 

include a rate. 

■ 4. Revise § 531.4 to read as follows: 

§ 531.4 NVOCC rules tariff. 

(a) Before entering into NSAs under 

this part, an NVOCC must provide 

electronic access to its rules tariffs to the 

public free of charge. 

(b) An NVOCC wishing to invoke an 

exemption pursuant to this part must 

indicate that intention to the 


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34792 Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Rules and Regulations 

Commission and the public by a 

prominent notice in its rules tariff. 

§ 531.5 [Removed and Reserved] 

■ 5. Remove and reserve § 531.5 

Subpart B—Requirements 

■ 6. Revise the subpart B heading to 

read as set forth above. 

■ 7. Amend § 531.6 by: 

■ a. Removing paragraphs (a), (f), and 

(g): 

■ b. Redesignating paragraphs (b) 

through (e) as paragraphs (a) through 

(d), respectively; 

■ c. Revising the introductory text of 

newly redesignated paragraph (a); 

■ d. Revising newly redesignated 

paragraph (c)(1) and adding paragraph 

(c)(5); 

■ e. Revising newly redesignated 

paragraph (d). 

The revisions read as follows: 

§ 531.6 NVOCC Service Arrangements. 

(a) Every NSA shall include the 

complete terms of the NSA including, 

but not limited to, the following: 

* * * * * 

(c) * * * 

(1) For service pursuant to an NSA, no 

NVOCC may, either alone or in 

conjunction with any other person, 

directly or indirectly, provide service in 

the liner trade that is not in accordance 

with the rates, charges, classifications, 

rules and practices contained in an 

NSA. 

* * * * * 

(5) Except for the carrier party’s rules 

tariff, the requirement in 46 U.S.C. 

40501(a)–(c) that the NVOCC include its 

rates in a tariff open to public 

inspection in an automated tariff system 

and the Commission’s corresponding 

regulations at 46 CFR part 520 shall not 

apply. 

(d) Format requirements. Every NSA 

shall include: 

(1) A unique NSA number of more 

than one (1) but less than ten (10) 

alphanumeric characters in length 

(‘‘NSA Number’’); and 

(2) A consecutively numbered 

amendment number no more than three 

digits in length, with initial NSAs using 

‘‘0’’ (‘‘Amendment number’’). 

§ 531.7 [Removed and Reserved] 

■ 8. Remove and reserve § 531.7 

■ 9. Revise § 531.8 to read as follows: 

§ 531.8 Amendment. 

(a) NSAs may be amended by mutual 

agreement of the parties. 

(b) Where feasible, NSAs should be 

amended by amending only the affected 

specific term(s) or subterms. 

(c) Each time any part of an NSA is 

amended, a consecutive amendment 

number (up to three digits), beginning 

with the number ‘‘1’’ shall be assigned. 

(d) Each time any part of an NSA is 

amended, the ‘‘Effective Date’’ will be 

the date of the amendment or a future 

date agreed to by the parties. 

Subpart C—[Removed and Reserved] 

■ 10. Remove and reserve subpart C, 

consisting of § 531.9. 

§ 531.10 [Amended]. 

■ 11. Amend § 531.10 by removing 

paragraphs (c) and (d). 

■ 12. Revise § 531.11 to read as follows: 

§ 531.11 Implementation. 

Generally. Performance under an NSA 

or amendment thereto may not begin 

before the day it is effective. 

■ 13. Revise § 531.99 to read as follows: 

§ 531.99 OMB control numbers assigned 

pursuant to the Paperwork Reduction Act. 

The Commission has received OMB 

approval for this collection of 

information pursuant to the Paperwork 

Reduction Act of 1995, as amended. In 

accordance with that Act, agencies are 

required to display a currently valid 

control number. The valid control 

number for this collection of 

information is 3072–0070. 

Appendix A to Part 531 [Removed] 

■ 14. Remove Appendix A to part 531. 

PART 532—NVOCC NEGOTIATED 

RATE ARRANGEMENTS 

■ 15. The authority citation for part 532 

continues to read as: 

Authority: 46 U.S.C. 40103. 

■ 16. Amend § 532.3 by revising 

paragraph (a) to read as follows: 

§ 532.3 Definitions. 

(a) ‘‘NVOCC Negotiated Rate 

Arrangement’’ or ‘‘NRA’’ means a 

written and binding arrangement 

between an NRA shipper and an eligible 

NVOCC to provide specific 

transportation service for a stated cargo 

quantity, from origin to destination, on 

and after receipt of the cargo by the 

NVOCC. For purposes of this part, 

‘‘receipt of cargo by the NVOCC’’ 

includes receipt by the NVOCC’s agent, 

or the originating carrier in the case of 

through transportation. 

* * * * * 

■ 17. Revise § 532.5 to read as follows: 

§ 532.5 Requirements for NVOCC 

negotiated rate arrangements. 

In order to qualify for the exemptions 

to the general rate publication 

requirement as set forth in § 532.2, an 

NRA must meet the following 

requirements: 

(a) Writing. The NRA must be in 

writing. 

(b) Parties. The NRA must contain the 

names of the parties and the names of 

the representatives agreeing to the NRA. 

(c) Agreement. The terms of the NRA 

must be agreed to by both NRA shipper 

and NVOCC, prior to receipt of cargo by 

the NVOCC. The shipper is considered 

to have agreed to the terms of the NRA 

if the shipper: 

(1) Provides the NVOCC with a signed 

agreement; 

(2) Sends the NVOCC a written 

communication, including an email, 

indicating acceptance of the NRA terms; 

or 

(3) Books a shipment after receiving 

the NRA terms from the NVOCC, if the 

NVOCC incorporates in the NRA terms 

the following text in bold font and all 

uppercase letters: ‘‘THE SHIPPER’S 

BOOKING OF CARGO AFTER 

RECEIVING THE TERMS OF THIS NRA 

OR NRA AMENDMENT CONSTITUTES 

ACCEPTANCE OF THE RATES AND 

TERMS OF THIS NRA OR NRA 

AMENDMENT.’’ 

(d) Rates and terms—(1) General. The 

NRA must clearly specify the rate and 

terms, as well as the shipment or 

shipments to which such rate will 

apply. 

(2) Surcharges, assessorial charges, 

and GRIs. (i) If the rate is not an ‘‘allin rate,’’ the NRA must specify whether 

additional surcharges, additional 

assessorial charges, or ocean common 

carrier general rate increases (‘‘GRIs’’) 

will apply. 

(ii) The NRA may list the additional 

surcharges or assessorial charges, 

including pass-through charges, or 

reference specific surcharges or 

assessorial charges in the NVOCC’s 

rules tariff. 

(iii) If the additional surcharges or 

assessorial charges are included in the 

NVOCC’s rules tariff, those additional 

surcharges or assessorial charges and 

the corresponding amounts specified in 

the rules tariff must be fixed once the 

first shipment has been received by the 

NVOCC until the last shipment is 

delivered, subject to an amendment of 

the NRA. 

(iv) For any pass-through charge for 

which a specific amount is not included 

in the NRA or the rules tariff, the 

NVOCC may only invoice the shipper 

for charges the NVOCC incurs, with no 

markup. 

(3) Non-rate economic terms. The 

NRA may include non-rate economic 

terms. 


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Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Rules and Regulations 34793 

(e) Amendment. The NRA may be 

amended after the time the initial 

shipment is received by the NVOCC, but 

such changes may only apply 

prospectively to shipments not yet 

received by the NVOCC. 

By the Commission. 

Rachel E. Dickon, 

Secretary. 

[FR Doc. 2018–15496 Filed 7–20–18; 8:45 am] 

BILLING CODE 6731–AA–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 61 

[WC Docket Nos. 16–143, 05–25, GN Docket 

No. 13–5 and RM–10593; FCC 17–43] 

Business Data Services in an Internet 

Protocol Environment; Technology 

Transitions; Special Access for Price 

Cap Local Exchange Carriers; AT&T 

Corporation Petition for Rulemaking 

To Reform Regulation of Incumbent 

Local Exchange Carrier Rates for 

Interstate Special Access Services 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule; announcement of 

effective date. 

SUMMARY: In this document, the 

Commission announces that the Office 

of Management and Budget (OMB) has 

approved, for a period of three years, an 

information collection associated with 

the Commission’s Business Data 

Services Report and Order, FCC 17–43, 

which, among other things, required 

that by August 1, 2020, price cap 

incumbent LECs must remove all 

business data services that are no longer 

subject to price cap regulation from 

their interstate tariffs. The Order also 

required that, by the same deadline, 

competitive LECs must remove all 

business data services from their 

interstate tariffs. This document is 

consistent with the Order, which stated 

that the Commission would publish a 

document in the Federal Register 

announcing the effective date of these 

rules. 

DATES: The amendments to 47 CFR 

61.201 and 61.203, published at June 2, 

2017, 82 FR 25660, are effective July 23, 

2018. 

FOR FURTHER INFORMATION CONTACT: 

William Kehoe, Pricing Policy Division, 

Wireline Competition Bureau, at (202) 

418–7122, or email: william.kehoe@

fcc.gov. 

SUPPLEMENTARY INFORMATION: This 

document announces that, on June 19, 

2018, OMB approved, for a period of 

three years, the information collection 

requirement relating to sections 61.201 

and 61.203 of the Commission’s rules, 

as contained in the Commission’s 

Business Data Services Report and 

Order, FCC 17–43, published at 82 FR 

25660, June 2, 2017. The OMB Control 

Number is 3060–0298. The Commission 

publishes this document as an 

announcement of the effective date of 

the rules. If you have any comments on 

the burden estimates listed below, or 

how the Commission can improve the 

collections and reduce any burdens 

caused thereby, please contact Nicole 

Ongele, Federal Communications 

Commission, Room 1–A620, 445 12th 

Street SW, Washington, DC 20554. 

Please include the OMB Control 

Number, 3060–0400, in your 

correspondence. The Commission will 

also accept your comments via email at 

PRA@fcc.gov. 

To request materials in accessible 

formats for people with disabilities 

(Braille, large print, electronic files, 

audio format), send an email to fcc504@

fcc.gov or call the Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Synopsis 

As required by the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3507), 

the FCC is notifying the public that it 

received final OMB approval on June 

19, 2018, for the information collection 

requirements contained in the 

modifications to the Commission’s rules 

in 47 CFR part 61. Under 5 CFR part 

1320, an agency may not conduct or 

sponsor a collection of information 

unless it displays a current, valid OMB 

Control Number. 

No person shall be subject to any 

penalty for failing to comply with a 

collection of information subject to the 

Paperwork Reduction Act that does not 

display a current, valid OMB Control 

Number. The OMB Control Number is 

3060–0298. 

The foregoing notice is required by 

the Paperwork Reduction Act of 1995, 

Public Law 104–13, October 1, 1995, 

and 44 U.S.C. 3507. 

The total annual reporting burdens 

and costs for the respondents are as 

follows: 

OMB Control Number: 3060–0298. 

OMB Approval Date: June 19, 2018. 

OMB Expiration Date: June 30, 2021. 

Title: Part 61, Tariffs (Other than the 

Tariff Review Plan). 

Form Number: N/A. 

Respondents: Business or other forprofit entities. 

Number of Respondents and 

Responses: 2,840 respondents; 5,543 

responses. 

Estimated Time per Response: 30–50 

hours. 

Frequency of Response: On occasion, 

annual, biennial, and one-time reporting 

requirements. 

Obligation to Respond: Required to 

obtain or retain benefits. Statutory 

authority for this information collection 

(IC) is contained in 47 U.S.C. 151–155, 

201–205, 208, 251–271, 403, 502, and 

503 of the Communications Act of 1934, 

as amended. 

Total Annual Burden: 195,890 hours. 

Total Annual Cost: $1,369,000. 

Nature and Extent of Confidentiality: 

Respondents are not being asked to 

submit confidential information to the 

Commission. If the Commission 

requests respondents to submit 

information which respondents believe 

are confidential, respondents may 

request confidential treatment of such 

information under 47 CFR 0.459 of the 

Commission’s rules. 

Privacy Act: No impact(s). 

Needs and Uses: On April 20, 2017, 

the Commission adopted the Business 

Data Services Report and Order, FCC 

17–43, which establishes a new 

regulatory framework for business data 

services. Under this framework, price 

cap incumbent LECs are no longer 

subject to price cap regulation of their: 

(a) packet-based business data services; 

(b) time-division multiplexing (TDM) 

transport business data services; (c) 

TDM business data services with 

bandwidth in excess of a DS3; and (d) 

DS1 and DS3 end user channel 

terminations, and other lowerbandwidth TDM business data services, 

to the extent a price cap incumbent LEC 

provides them in counties deemed 

competitive under the Commission’s 

competitive market test or in counties 

for which the price cap incumbent LEC 

had obtained Phase II pricing flexibility 

under the Commission’s prior regulatory 

regime. The Business Data Services 

Report and Order required that, within 

36 months of its effective date (i.e., by 

August 1, 2020), price cap incumbent 

LECs must remove all business data 

services that are no longer subject to 

price cap regulation from their interstate 

tariffs. The Order also required that, by 

that same deadline, competitive LECs 

must remove all business data services 

from their interstate tariffs. 

The information collected through the 

carriers’ tariffs is used by the 

Commission and state commissions to 

determine whether services offered are 

just and reasonable, as the Act requires. 

The tariffs and any supporting 

documentation are examined in order to 


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