United States: FMC Issues Final Rule Regarding Freight Forwarder And NVOCC Requirements

J. Michael Cavanaugh is a Partner and Eric Lee is an Associate in Holland & Knight's Washington D.C. office

The U.S. Federal Maritime Commission (FMC) issued its Final Rule in FMC Docket 13-05 on Nov. 3, 2015. The Commission's October vote in favor of issuing the Final Rule concluded a multiyear review and rulemaking that largely focused on 46 CFR Part 515.

Part 515 primarily provides the regulations governing freight forwarders, non-vessel operating common carriers (NVOCC) – U.S. or non-U.S. based – and other aspects of the ocean transportation intermediary (OTI) business. The full text of the FMC Docket 13-05 Final Rule is quite comprehensive. With the exception of the license renewal amendments, the OTI rule changes are effective Dec. 9, 2015.

Key Changes for Freight Forwarders and NVOCCs

  • Revised Section 515.2(h): "[F]reight forwarding services" are redefined in broader terms, so they now include "[p]reparing and/or processing export documents, including the required 'electronic export information'" and "[p]reparing and/or processing common carrier bills of lading or other shipping documents," which is an expansion by way of "common carrier" and "or other shipping documents."
  • Revised Section 515.2(k): "[N]on-vessel operating common carrier services" now include issuing "other shipping documents" and it no longer matters whether the issuance is "equivalent" to a bill of lading.
  • Revised Section 515.2(o): "[P]rincipal" is redefined to delete the introductory clause that referenced financial responsibility forms.
  • New Section 515.2(r): "[R]egistered non-vessel-operating common carrier" is a new term with a new definition ("Registered NVOCC"). A Registered NVOCC is an NVOCC located outside the United States that elects not to become licensed as an NVOCC but registers with the Commission as provided in §515.19, posts a bond or other surety, and publishes a tariff.
  • Revised Section 515.4: The FMC removed the additional financial requirements imposed on OTIs for each branch office by specifically deleting the requirements of Section 515.4(b)(1)(ii) and making corresponding changes in Section 515.21(a).
  • Revised Section 515.11(a)(2): The FMC also changed the current OTI licensing requirements. Now, the Commission may clearly consider violations of any shipping or international trade laws, operating as an OTI without a license or registration, state and federal felonies and misdemeanors, bankruptcies, tax liens, judgments and proceedings, immigration status, negative Transportation Worker Identification Credential (TWIC) history, and negative customs broker's license history.
  • New Sections 515.14(c) and (d): This new section requires license renewals to occur every three years, and the licensee must initiate the renewal and continued registration process 60 days prior to expiration. The FMC will phase in existing licenses over a three-year period, and the renewal requirements will not be effective until December 9, 2016. Suspension is not automatic and still requires positive Commission action, including notice and a hearing, and without such Commission action, the license remains effective.
  • New Section 515.17: With this addition, the FMC seeks to streamline an appeals process for OTIs facing the denial, revocation, or suspension of their license, but preserve the subject OTI's due process rights.
  • Revised Section 515.20: The FMC expanded OTI reporting requirements to include business address changes, conviction or indictment of the licensee (or other key individuals), bankruptcy filed by or naming a licensee (or other key individuals), changes of 5 percent or more in ownership or control, or changes of partners, members, or managers of a limited liability company or branch offices.
  • Revised Section 515.27(a): The FMC seeks to clarify and affirm that no common carrier may knowingly and willfully transport cargo for an NVOCC unless the carrier has determined that the NVOCC is licensed or registered and in compliance with tariff and bond requirements. The Commission revised Section 515.27(b)(1) to state that consulting the list of licensed and registered NVOCCs posted on the Commission's website is an acceptable method for carriers to verify an NVOCC's status.
  • Revised Section 515.31(g): All OTIs are required to respond to requests from the Commission, or its authorized representatives, and OTI principals must ensure that their agents respond to Commission inquiries.
  • Revised Section 515.33: OTIs' business records must be maintained in useable form and readily available to the Commission.

This rulemaking was conducted over a few years, and with it, there are many changes. While we have highlighted some of the key changes, how your particular business is affected by the changes is a unique question.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions