The Federal Maritime Commission recently provided the following update on actions being taken under the authority of the Ocean Shipping Reform Act of 2022.
Refusal to deal. In September 2022 the FMC proposed to amend its regulations to implement OSRA’s prohibition on ocean common carriers unreasonably refusing to deal or negotiate with respect to vessel space accommodations for imports and exports. In June 2023 the FMC issued a supplemental proposed rule on this issue. The FMC is now working on drafting a final rule but did not indicate when this might be completed.
Detention and demurrage. In October 2022 the FMC proposed to revise its regulations to bring more clarity, structure, and punctuality to the demurrage and detention billing practices of vessel-operating common carriers, non-vessel-operating common carriers, and marine terminal operators. The FMC states that a final rule is close to being completed and presented to the Commission for a vote.
Discriminatory conduct. OSRA prohibits carriers from retaliating against shippers for filing a complaint or patronizing another carrier, and in December 2021 the FMC issued a policy statement indicating that to establish a violation complainants alleging retaliation or other unfair or unjustly discriminatory conduct do not need to prove that the carrier’s conduct was designed to stifle competition. Some of the issues related to this policy were addressed in the June 2023 “refusal to deal” proposed rule (see above), and FMC staff have begun drafting a proposed rule on all remaining topics related to this issue.
Complaints. The FMC continues to receive complaints disputing charges assessed by common carriers, including demurrage and detention fees, that may not comply with OSRA, and an estimated $1.7 million in fees or surcharges have been voluntarily waived or refunded by carriers since July 2022. FMC staff anticipate initiating a rulemaking in 2024 that will establish a permanent charge complaint process.
Moreover, work is progressing on establishing a page on the FMC’s website where the public can easily submit comments, complaints, concerns, reports of noncompliance, requests for investigations, and requests for alternative dispute resolution services.
Chassis pools. In October 2022 the FMC awarded a contract to the National Academies of Science to study intermodal chassis pools and provide recommendations on best practices for their management. This study is scheduled to be completed by April 2024.
Cargo data. A proposed information collection that will allow the FMC to gather and publish information on total import and export tonnage and total loaded and empty twenty-foot equivalent units per vessel is now being reviewed by the Office of Management and Budget.
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 22. 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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