Background

The Federal Maritime Commission will accept public input through Sept. 14 on whether congestion of the carriage of goods has created an emergency situation causing a substantial, adverse effect on the competitiveness and reliability of the international ocean transportation supply system. Information received in response to this request will help inform the FMC’s decision on whether an emergency situation exists and whether to issue an emergency order to address any such situation.

The FMC notes that over the past two years there have been a variety of strategies employed by industry participants to reduce congestion throughout the U.S. ocean transportation system. For example, some carriers have diverted vessel services away from the most congested port areas in an effort to alleviate severe cargo congestion at major U.S. ports. However, this shift has often resulted in increased congestion at previously non- or less-congested U.S. port areas or regions. The FMC adds that while total U.S. port congestion metrics – the number of containers on ships waiting to berth, average ship waiting time at key U.S. ports, and container dwell time – have all decreased in recent months, these metrics remain higher than prior to the pandemic.

The FMC is seeking input on the following topics:

- whether congestion of the carriage of goods has created an emergency situation of a magnitude such that there exists a substantial, adverse effect on the competitiveness and reliability of the international ocean transportation supply system, as well as an explanation and relevant examples or data;

- whether an emergency order pursuant to Section 18 of the Ocean Shipping Reform Act of 2022 would alleviate or improve such an emergency situation, and if so, why, and if not, why not; and

- the appropriate scope (duration and geographic) of such an emergency order if the FMC were to issue one, as well as the basis for that scope.

If the FMC issues an emergency order, common carriers and marine terminal operators would be required to share directly with relevant shippers, rail carriers, or motor carriers information relating to cargo throughput and availability. An emergency order would remain in effect for no longer than 60 days, although the FMC could renew the order. The FMC’s authority to issue emergency orders terminates 18 months after the June 16 enactment of OSRA.

ST&R’s team of former FMC and DOJ litigation personnel, freight forwarders, and former administration and congressional staffers can help shippers understand, comply with, and take advantage of OSRA. For more information, please contact Jason Kenner (at (212) 549-0137 or via email), Andy Margolis (at (305) 894-1021 or via email), or Ned Steiner (at (202) 730-4970 or via email.)

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