Linda Crovella Named Administrative Law Judge

FMC Press Release Posted September 26, 2022 -- Chairman Daniel B. Maffei announced this week the hiring of Linda S. Harris Crovella to serve as an Administrative Law Judge of the Federal Maritime Commission.

Judge Crovella joins the Commission after serving as an Administrative Law Judge with the Social Security Administration in Richmond, VA and Buffalo, NY for the past six years. Prior to joining the Social Security Administration, she worked at the National Labor Relations Board as a Field Attorney, investigating and litigating unfair labor practice charges, working in the Buffalo, Boston, and Brooklyn Regional offices before transferring to the Washington, D.C. Resident Office as a Supervisory Attorney.

“The caseload of our Office of the Administrative Law Judge has sharply increased over the past two years resulting from more parties seeking relief to shipping disputes by using the formal complaints process. Expanding the capabilities and resources of this critical function supports my priority that the Commission emphasize its enforcement work. Judge Crovella possess excellent experience and credentials and I am confident she will be a valuable addition to the agency. I am pleased to welcome her to the Commission,” said Chairman Maffei.

Judge Crovella received her J.D. from State University of New York at Buffalo School of Law in 1987 and her B.S. from Cornell University in 1982. She is a member of the New York State Bar. She will serve with Chief Administrative Law Judge Erin M. Wirth.

Notice of Proposed Demurrage & Detention Rule May Be Issued in Oct.

FMC Press Release Posted September 22, 2022 -- The Federal Maritime Commission was briefed at its September meeting, held Wednesday, on progress implementing the Ocean Shipping Reform Act of 2022 (OSRA) and the findings of the Maritime Transportation Data Initiative (MTDI).

Commissioner Carl W. Bentzel discussed his work leading the MTDI and shared what this project identified as key data gaps in moving an ocean container from mode-to-mode. The MTDI lasted from December 2021-June 2022, during which time 18 public meetings were held exploring data challenges across the entire maritime supply chain.

Commission staff reported on progress in implementing OSRA and discussed the Notice of Proposed Rulemaking (NPRM) on demurrage and detention billing requirements that is anticipated to be issued in October. OSRA requires the Commission to issue a rulemaking revising the minimum information that common carriers must include on demurrage or detention invoices as well as further define prohibited practices by common carriers, marine terminal operators, shippers, and ocean transportation intermediaries under 46 U.S.C. 41102(c) regarding the assessment of demurrage or detention charges.

In related news, the Commission will begin using Regulations.Gov for all its rulemaking activity in the near future. This move to the Regulations.Gov platform will make filing comments, and finding information about, Commission rulemakings easier and more streamlined for the public. The Commission will issue instructions on how to use Regulations.Gov as well as guidance on when the public should use or check the agency’s existing Dockets webpage to track the Commission’s rulemaking activities.

In the closed session of the meeting, Commissioners had further discussions on the NPRM on demurrage and detention billing requirements, and also discussed work being done to establish a permanent process for handling Charge Complaints. The Commission has been handling Charge Complaints using interim procedures since July 2022. Discussion about these items was held in private to allow the Commission to deliberate on policy considerations, proposed text, and other internal matters.

Staff reported that substantial progress has been made in implementing many of the requirements established by OSRA. Since the law’s enactment on June 16, 2022, the Commission has issued the NPRM on unreasonable refusal to deal in regard to vessel space and will soon publish the NPRM on demurrage and detention billing practices. Additionally, two requests for public comment were issued, seeking feedback on the benefits of issuing an emergency order on information sharing, and secondly, the Commission’s proposed plan for establishing a data collection initiative related to an ocean carrier’s import and export performance in the U.S. trades.

The Commission has established a dedicated landing page on its website where interested members of the public can track the status of OSRA implementation.

FMC to Penalize Carriers that Refuse to Deal With Shippers

FMC Press Release Posted September 13, 2022 -- The Federal Maritime Commission is seeking public comments in response to a Notice of Proposed Rulemaking (NPRM) issued today implementing a requirement of the Ocean Shipping Reform Act of 2022 (OSRA) to define unreasonable refusal to deal or negotiate with respect to vessel space accommodation provided by an ocean common carrier.

One provision of OSRA requires that an ocean common carrier shall not unreasonably refuse to deal or negotiate with respect to vessel space accommodation. The NPRM outlines the elements which would be necessary to establish a violation and the criteria the Commission would consider in assessing reasonableness if the NPRM is finalized. It would also shift the burden of proving the refusal to deal was reasonable from shippers to ocean common carriers.

The NPRM would apply to both import and export shipments.

Interested parties will have 30 days to submit comments to the Commission once the NPRM is published in the Federal Register. Because the law requires the Commission to publish a Final Rule within six months of OSRA’s enactment, comments should be submitted by the deadline.

In the NPRM, the Commission proposes that complainants alleging an unreasonable refusal to deal with respect to vessel space accommodation would be required to meet three elements:

1. That the respondent is an ocean common carrier;

2. That the respondent refuses to deal or negotiate with respect to vessel space; and

3. That the refusal is unreasonable.

The NPRM proposes a burden-shifting regime that would allow ocean common carriers to establish why it was not unreasonable to refuse vessel space to a particular complainant. The Commission proposes a non-exhaustive list of factors it will consider when deciding whether a refusal to deal was unreasonable. Some factors the NPRM proposes the Commission consider include whether the ocean common carrier followed a documented export strategy, engaged in good faith negotiations, and articulated legitimate transportation factors. This burden-shifting would happen after the complainant or the Commission’s Bureau of Enforcement, Investigations, and Compliance has established a prima facie case that the three elements listed above have been met.

As the phrase “vessel space accommodations” has never been defined in legislation, or interpreted by the Commission, the NPRM proposes to define this term.

As the circumstances of each shipment are unique, the Commission acknowledges it is impossible to regulate for every possible scenario, and accordingly, cases alleging a violation will be factually driven and considered on a case-by-case basis.

The Commission consulted with the U.S. Coast Guard on this NPRM as required by the law.This NPRM is the latest initiative taken by the FMC to implement OSRA, signed into law by President Joseph R. Biden on June 16, 2022. Commission progress in meeting the requirements established by the law can be found on the dedicated “OSRA Implementation” landing page established on the Commission’s website.