02-12440. Petition of the National Customs Brokers and Forwarders Association of America, Inc. and the International Association of NVOCCS, Inc. for an Investigation of the Contracting Practices of the Transpacific Stabilization Agreement; Notice of ...

Notice is hereby given that the National Customs Brokers and Forwarders Association of America, Inc. and the International Association of NVOCCs, Inc. (collectively, “Petitioners”) have petitioned the Commission for an investigation under section 11(c) of the Shipping Act of 1984 (“Shipping Act”) of certain activities by the members of the Transpacific Stabilization Agreement (“TSA”).

In particular, Petitioners request that the Commission determine whether TSA's members have violated the Shipping Act through discriminatory service contracting practices with regard to traffic moving in the eastbound transpacific trades that intentionally discriminate against Ocean Transportation Intermediaries (“OTIs”) in violation of sections 10(c)(7) and 10(c)(8) of the Shipping Act.

In support of this contention, Petitioners claim that TSA's members have refused to negotiate with OTIs or shippers' associations representing OTIs until such time as they completed negotiations and signed contracts with proprietary shippers. Petitioners also claim that TSA's members have agreed to charge OTIs substantially higher rates than are being assessed against proprietary shippers for exactly the same services, regardless of volume or other lawful transportation factors. Petitioners state that this is being done through a General Rate Increase (“GRI”) and Peak Season Surcharge (“PSS”) that are mandatory for OTI service contracts, but waived for contracts with beneficial cargo owners.

Petitioners further assert that TSA members' refusal to negotiate or enter into service contracts with OTIs at the same time as proprietary shippers constitutes an unreasonable refusal to deal in violation of section 10(c)(1) of the Shipping Act. Petitioners also request that the Commission determine whether these practices are causing unreasonable increases in transportation cost for OTIs, their customers and the shipping public within the meaning of section 6(g) of the Shipping Act.

Petitioners also contend that TSA and its members appear to be abusing the “voluntary guidelines” authorized by section 5(c) of the Shipping Act by failing to file their true agreements with the Commission, and are thus operating under an unfiled agreement in violation of section 10(a)(3) of the Shipping Act.

If the Commission's investigation concludes that Shipping Act violations have occurred, Petitioners urge the Commission to: (1) Issue sanctions against TSA and its members pursuant to section 13 of the Shipping Act for violations found; (2) require TSA member lines to pay reparations pursuant to section 11(g) of the Shipping Act to those OTIs who have been damaged; and (3) seek appropriate injunctive relief to enjoin further operation of TSA pursuant to sections 6(g) and (h) of the Shipping Act.

The Petition was filed under Rule 69 of the Commission's Rules of Practice and Procedure, 46 CFR 502.69, and states that it was served upon counsel for TSA. Replies to the petition, as provided by Rule 69 and Rule 74, 46 CFR 502.74, are due May 28, 2002. In order for the Commission to make a thorough evaluation of the petition, the Commission is also inviting interested persons to submit their comments on the petition no later than May 28, 2002. Comments shall consist of an original and 15 copies, or, if e-mailed, as an attachment in WordPerfect 8, Microsoft Word 97, or earlier versions of these applications; be directed to the Secretary, Federal Maritime Commission, 800 North Capitol Street, NW, Washington, DC 20573-0001 (e-mail to: [e-mail]); and be served on Petitioners' counsel: David P. Street and Edward D. Greenberg, Galland, Kharasch, Greenberg, Fellman & Swirsky, P.C., 1054 Thirty-First Street, NW, Washington, DC 20007-4492; and on counsel for TSA, Stanley Sher, Sher & Blackwell, 1850 M Street, NW, Suite 900, Washington, DC 20036.

Copies of the petition are available at the Office of the Secretary of the Commission, 800 N. Capitol Street, NW., Room 1046, by telephone request at 202-523-5725 or through email request directed to [e-mail].

Parties participating in this proceeding may elect to receive service of the Commission's issuances in this proceeding through e-mail in lieu of service by U.S. mail. A party opting for electronic service shall advise the Office of the Secretary in writing and provide an e-mail address where service can be made.

Bryant L. VanBrakle,

Secretary.