FMC Had Expected to Issue OSRA Rules Last Month, Regulatory Agenda Says

The agenda includes a new mention of a final rule to address ocean carriers “unreasonably” declining to provide vessel space. Under the rule, required by OSRA, the FMC will “define the elements necessary to establish a violation and the criteria it will consider in assessing reasonableness.” It will specifically look to prevent ocean common carriers from unjustly “refusing to deal or negotiate with respect to vessel space accommodations,” the commission said, and comes after months of urging from industry and lawmakers for the FMC to penalize carriers that decline to carry U.S. exports in favor of imports because they can charge higher rates for imports (see 2103100027 and 2205190035).

The commission proposed the rule in September (see 2209130040) but was met with pushback. The Agriculture Transportation Coalition told the FMC to scrap the rulemaking and start over, saying it missed congressional intent “by a wide margin” and wouldn’t solve the issue of carriers unfairly declining to take exports in favor of imports (see 2210280051), while lawmakers called the proposed rule “feckless” (see 2211090026). It’s unclear whether the commission had enough time to withdraw the rule and draft a new one because it was facing time pressure from a statutory deadline set for Dec. 16, 2022 (see 2209210063). The FMC expected to publish the final rule in December, according to the regulatory agenda. An FMC spokesperson didn’t respond to a request for comment.

The agenda also mentions a new notice of proposed rulemaking that will define certain “unfair or unjustly discriminatory methods.” The Commission expected to publish the proposed rule in December and is facing a statutory deadline under OSRA to issue a final rule by June 16.

The agenda also continues to mention several rules, including one that would establish new detention and demurrage billing requirements. The FMC proposed the requirements in October ​​(see 2210070079), with some trade groups saying the requirements could lead to unintended consequences by only allowing “contracted parties” to be charged with D&D fees (see 2212130059). Carriers told the commission the requirements could lead to burdensome new rules and wouldn’t result in more efficient container pickups and returns (see 2212210058). The FMC is facing a statutory deadline under OSRA to issue a final rule by June 16.

The FMC continued to mention a rule that could lead to changes to its tariff regulations. The commission in May proposed requiring carrier tariffs to be made available “free of charge,” revising the definition of co-loading to apply only to “less than container loads” and other changes (see 2205090006). Some in industry told the FMC the proposal was unnecessary and could place too heavy a burden on industry (see 2207110024).

The commission said the rule may be necessary because carriers are “charging widely varying fees and imposing varying minimum requirements for access to common carrier tariffs.” It also said some non-vessel-operating common carriers “are applying what are commonly known as pass-through charges inconsistently under common carrier tariffs, and the Commission seeks to gain a broader understanding and information from industry stakeholders, including NVOCCs and vessel-operating common carriers.” The FMC had expected to issue the final rule in December.

The agenda also continues to mention a notice of proposed rulemaking to address “outdated” ocean common carrier and marine terminal operator agreements. The rule, which also was expected in December, would propose to modernize “requirements and clarify existing requirements associated with the filing of ocean common carrier and marine terminal operator agreements subject to the Shipping Act of 1984,” the FMC said.