AISA confirms court challenge of FMC’s rule on NSAs

AISA confirms court challenge of FMC’s rule on NSAs    The American Institute for Shippers’ Associations (AISA) Monday confirmed it is seeking federal appellate court review of the recently implemented Federal Maritime Commission rule allowing non-vessel-operating common carrier service arrangements (NSAs).
   The Washington-based shippers’ associations body said its petition, filed with the U.S. Court of Appeals for the District of Columbia Circuit, “seeks a judicial ruling that the FMC’s new regulations are unlawful and void.”
   “The net effect of the FMC’s new regulations is that large NVOCCs and large shippers have been given a new form of contract right in ocean shipping to the competitive disadvantage of smaller shippers who rely upon shippers’ associations to obtain competitive transportation services,” said Bill Clark, president of AISA.
   The FMC rule, which took effect Jan. 19, allows NVOCCs to sign confidential NSAs with their shipper customers for the first time.
   “However, under the new regulations, shippers’ associations with NVOCC members are prohibited from entering into such contracts,” AISA said in a statement. It challenged the FMC’s view that this restriction is necessary to prevent the possibility that NVOCCs entering into NSAs with other NVOCCs will enjoy an exemption from the antitrust laws.
   “AISA had previously filed comments in the FMC’s rulemaking position disputing the validity of that concern and challenging the commission’s statutory authority to impose such restrictions on shippers’ associations,” the organization said.
   AISA also filed a petition with the FMC seeking a stay of the effective date of the new regulations pending a commission ruling on its request for reconsideration of the NSA rule. AISA stressed that its court filing was made “only after the commission failed to stay the regulations by their effective date.”
   AISA believes the FMC lacks the statutory authority to adopt a new form of contractual right that discriminates against smaller shippers by prohibiting their access to such contracts through shippers’ associations.
   “The United States Supreme Court has consistently struck down similar rules,” it said. “It is our opinion that the appellate court will similarly find that the FMC lacks the authority for the actions it has taken.”
   Last week, major NVOCCs and the National Industrial Transportation League wrote a joint statement to the FMC to reject petitions from the International Shippers’ Association and the AISA that called for the rule on NSAs to be reconsidered and postponed. They told the FMC that the shippers associations “made no factual presentation” backing their claim that the FMC final rule would place small NVOCCs and shippers’ associations at a competitive disadvantage to larger NVOCCs.