FMC Provides Guidance on Complaints Process

The Federal Maritime Commission issued three policy statements on December 28, 2021, to provide new guidance to shippers and others on bringing private party complaints at the FMC, addressing barriers identified by the trade community as disincentives to filing actions at the agency.

These policy statements were proposed by Commissioner Rebecca F. Dye in a set of Interim Recommendations she issued in July 2021 and developed from her work on Fact Finding 29. The Commission voted in September 2021, to implement her recommendations that do not require legislative action.

In the first policy statement (Docket No. 21- 13), the Commission reiterates that shippers’ associations and trade associations may file a complaint alleging a prohibited act violation under 46 U.S.C. Chapter 411. This allows these organizations to protect the interests of their members while also providing shippers with a degree of separation and insulation from potential retaliation.

The second statement (Docket No. 21- 14) explains the Commission’s approach on attorney fees and reiterates that a party who brings an unsuccessful complaint is not automatically required to pay the other party’s attorney fees. The Commission will look favorably upon complainants who raise non-frivolous claims in good faith, who litigate zealously but within the rules and for proper purposes, and who comply with Commission Orders.

Finally, in the third statement on retaliation (Docket No. 21-15), the Commission emphasizes that it broadly defines both who can bring a retaliation complaint, as well as the types of shipper activity that is protected under the existing retaliation prohibitions. This policy statement also addresses the proof necessary for certain retaliation complaints.

FMC Seeks Public Comments on FY 2022-2026 Strategic Planning

FMC Press Release Posted January 18, 2022 -- The Federal Maritime Commission (FMC or Commission) invites comments on its Proposed FY 2022-2026 Strategic Goals and Stewardship Objective. Comments on the Commission’s Proposed Strategic Goals and Objective must be submitted on or before January 31, 2022.

Under this proposal, the FMC’s two Strategic Goals have added new objectives and performance measures to better measure new reporting requirements and functions adopted since the previous strategic plan was adopted. These include a comprehensive monitoring program under 46 U.S.C. § 40102(5) (objective 1.2) and license renewals (objective 2.2). The proposal also adds a performance measure for field operations outreach (objective 2.1).

Along with the proposed Strategic Goal changes, the proposal includes a new Stewardship Objective – to advance the FMC’s mission through organizational excellence and efficiency. The proposed sub-objectives track continuity of operations, financial management, information technology optimization (including cybersecurity), and workforce engagement and performance.

The proposed goals and objectives will be included in the FMC’s next Strategic Plan, which guides the FMC’s performance and activities it undertakes to meet its mission. The FMC’s mission is to ensure a competitive and reliable international ocean transportation supply system that supports the U.S. economy and protects the public from unfair and deceptive practices.

The final Strategic Plan incorporating the goals and objectives will replace the current FY 2018-2022 Strategic Plan.

Those interested in commenting on the Proposed FY 2022-2026 Strategic Goals and Stewardship Objective may do so by submitting as an attachment to an email (attachments should be in Microsoft Word or PDF) or in paper form. When submitting comments either in paper or by email, include in the subject line: “Comments on FMC Proposed FY 2022-2026 Strategic Goals and Stewardship Objective”. Address all comments to:

Office of the Managing Director Federal Maritime Commission 800 North Capitol Street, NW. Room 1078 Washington, DC 20573-0001 Email: OMD@fmc.gov

House Passes Ocean Shipping Reform Act of 2021

The FMC may soon have more teeth in addressing urgent maritime issues as the Ocean Shipping Reform Act of 2021, H.R. 4996, has been passed by the United States House of Representatives.

The House voted 364-60 on December 8, 2021. The bill revises provisions related to ocean shipping policies and is designed to support the growth and development of U.S. exports and promote reciprocal trade in the common carriage of goods by water in the foreign commerce of the United States.

The full-text of the bill can be found here.

Representatives John Garamendi (D-CA) and Dusty Johnson (R-SD) introduced the bipartisan bill in August 2021.

The bill has many provisions that would enhance the FMC’s ability to address two main complaints of U.S. shippers throughout the pandemic, (1) ocean carriers’ detention and demurrage practices and (2) difficulty finding transport for exports. Under the bill, the FMC can initiate investigations, gather data, and even require data exchanges between ocean carriers and shippers.

Moreover, the bill prohibits ocean common carriers and marine terminal operators from retaliating or discriminating against shippers because such shippers have patronized another carrier, or filed a complaint. The FMC is directed to establish rules prohibiting ocean common carriers and marine terminal operators from adopting and applying unjust and unreasonable demurrage and detention fees.

Before the bill becomes law, it will have to pass the Senate and get President Joe Biden's signature. The bill is currently pending review in the Senate’s Committee on Commerce, Science, and Transportation.