Doyle Votes to Post Notice in Federal Register on OTI Regs; Gives Speech at Freight Forwarders and Customs Brokers Conference
On September 25, 2014, Commissioner William P. Doyle voted in favor of posting a notice in the Federal Register for a Notice of Proposed Rulemaking. The 4-1 vote by the Commission allows the revised Amendments to Regulations Governing Ocean Transportation Intermediary Licensing and Financial Responsibility Requirements, and General Duties to move forward.
Below are the comments Commissioner Doyle presented to the National Customs Brokers & Freight Forwarders Association of America Government Affairs Conference in Washington, DC on September 15, 2014.”
September 15, 2014
Federal Maritime Commissioner William P. Doyle’s Comments Delivered at the National Customs Brokers & Forwarders Association of America (NCBFAA) Government Affairs Conference
Thank you for inviting me here today. I want to let you know that you have a tireless advocate in Ed Greenberg. Ed is always looking out for your interests—he’s on the phone calling my office, he attends Commission meetings, submits comments on the record, and visits the Commission in person when he feels the need to do so. In short, Ed Greenberg is all business. You are fortunate to have him as your counsel.
Let me begin—Amendments to regulations governing ocean transportation intermediary (OTI) licensing and financial responsibility requirements, and general duties are just about ready to be published in the Federal Register as a Notice of Proposed Rulemaking (NOPR). This means another opportunity to submit your comments, which will be considered by the Commission.
As you know, the FMC voted to allow the Advanced Notice of Proposed Rulemaking to move forward in May of 2013. As a new Commissioner at the time I voted in favor of moving forward with notice and comment because it was just that – an “Advanced” notice of proposed rulemaking. I was very interested in receiving comments from stakeholders and the public. I understood the drafting of such proposed regulations had been in the planning stages for years. And, I knew that there would be another opportunity for stakeholders and the public to comment again when there was an actual notice of proposed rulemaking—and that is where we are right now.
My office has spoken and met with many stakeholders over the past year. I have had the opportunity to sit down with Ed Greenberg, as well as Robert Voltmann from the Transportation Intermediaries Association (TIA). I have spoken with members of the Pacific Coast Council of Customs Brokers and Freight Forwarders Association. I have met with United Parcel Service executives and executives with Expeditors International. Importantly, I have read the eighty-five (85) comments submitted to the Commission related to the Advanced Notice.
With that, the new NOPR looks substantially different than the Advanced Notice. I heard you.
Here is what I can generally tell you at this moment. In March of 2014, FMC staff made 30 recommendations to the Commission for inclusion in a Notice of Proposed Rulemaking. The Commission voted by Notation on April 18, 2014 on the staff’s recommendations and provided further guidance to staff for preparing the NOPR.
What’s in / What’s out
First, What’s Out:
- All proposed financial responsibility increases have been dropped. The current required and existing required levels will remain unchanged.
- The new potential qualifications specified for OTIs and their Qualifying Individuals (QIs) has been dropped.
- The proposed shortened deadline for replacing a QI after the QIs death, retirement, or resignation has been dropped. The current and existing 30-day requirement to replace a QI is retained.
- The proposed additional bases specified in the ANPR for revocation or suspension of licenses and termination or suspensions of registrations of foreign-based NVOCCs have been dropped.
- The proposed tiered claim and claim processing system that would give shippers priority to the proceeds of an OTIs financial responsibility has been deleted. The current and existing rules covering claims and claim processing remain unchanged.
- The proposed requirement that OTIs restore their financial responsibility to the full required amount within 60 days of a claim being paid against has been dropped.
- The proposed draft requirements on common carriers and marine terminal operators to notify the Commission of their court or other transportation claims against OTIs, as well as the requirement that such notifications would be published on the Commission’s website have been eliminated.
- The proposed added documentation requirements for OTIs and agents, including a requirement for agency agreements to be in writing have been deleted.
- The potential provision establishing a rebuttable presumption that an agent acts on its own behalf if it does not include the name and license or registration number of an OTI on documents the agent issues has been removed.
- The proposed new requirement on OTIs to include their license and registration numbers in their advertisements and to require their agents to include the principals’ names and addresses in their advertising has been dropped.
- The requirement related to false and misleading information in advertisements has been removed.
- The proposed provision establishing a rebuttable presumption that an entity has performed the services that it has advertised has been dropped.
- The proposed term for “Advertisement” has been deleted.
- The proposed fees for renewing OTI licenses and registrations have been dropped.
- The proposal for a Certificate of Good Standing to be submitted for renewals has been dropped.
- The proposal for considering a new NVOCC license category for those operating only in the barrel trade has been dropped.
Now, What’s in:
- The new NOPR carriers forward a requirement for renewal of licenses and registrations every three years as opposed to every two (years) as proposed in the ANOPR. The renewal forms will be entirely on-line and user friendly.
- The new NOPR carries forward the requirement that common carriers verify OTI licenses and registrations, tariff publication and financial responsibility, provided such verifications can be made at a single location on the Commission’s website.
- The NOPR carries forward a new expedited hearing procedure subject to the following provisions:
- The procedure will not result in summary revocations, terminations or suspensions;
- A licensee must be given notice and a hearing for failure to renew; and
- Appeals to the Commission remain available for adverse decisions.
In summation—I am requesting that you take a good look at the upcoming NOPR. Be active and make comments. The Commission is asking for assistance from the public on items such as establishing a renewal date for the nearly 4,700 OTIs that are currently registered. Right now, no renewal dates are included on licenses.
Port Congestion Forums
The Commission is running a series of Port Congestion Forums around the country. Chairman Mario Cordero is hosting the first one today in Los Angeles. I will be hosting the Mid-Atlantic and Northeast port congestion forum in Baltimore, Maryland on October 1, 2014 with Commissioner Lidinsky. Thereafter, forums will be held in New Orleans and another in the Southeast.
U.S.-China Bilateral Maritime Consultation Meetings
I will be attending the U.S.-China Bilateral Maritime Consultation meetings in Suzhou, China, during the middle of November. Last year, we addressed issues related to China’s newly implemented Value Added Tax (VAT) program. There were many questions we addressed on behalf of carriers and OTIs. In addition, my office ran a VAT workshop with valuable assistance of the international tax shop, KPMG. I am hearing that things are still a bit off kilter with respect to the VAT as it applies to freight forwarders. To this end, please let my office know of your experiences with the VAT so that I can have them addressed this year.
I want to again thank you for inviting me to speak with you today. The statements and comments that I have made are mine and mine alone, and they should not be construed as representing the position of my fellow Commissioners or the Commission.