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FMC Proposes Way to Deal With Unreasonable Refusal

The Federal Maritime Commission (FMC) has issued a Supplemental Notice of Proposed Rulemaking (SNPRM) outlining its approach to implementing regulations that prohibit common carriers from unreasonably denying available cargo space to shippers.

This SNPRM is a continuation of the rulemaking process mandated by the Ocean Shipping Reform Act of 2022 (PL 117-146). In September 2022, the Commission released a Notice of Proposed Rulemaking (NPRM) titled "Definition of Unreasonable Refusal to Deal or Negotiate with Respect to Vessel Space" (Docket No. FMC-2023-0010).

To address the concerns raised during the public comment period for the NPRM, the Commission announced in January its decision to pursue an SNPRM, allowing for an additional public comment period instead of proceeding with a Final Rule.

The SNPRM introduces significant changes compared to the previous NPRM issued last year. These changes include:

  1. Adding specific language to establish the criteria for a claim regarding refusal of cargo space accommodations.

  2. Revising the definition of transportation factors to focus on considerations related to vessel operations.

  3. Expanding the definition of the term "unreasonable" to provide a general definition and a non-exhaustive list of scenarios that constitute unreasonable conduct.

  4. Clarifying that vessel space services are encompassed within the definition of vessel space accommodations.

  5. Proposing a mandatory requirement for export policy documentation as an alternative to the previously suggested voluntary export strategy.

  6. Removing the voluntary certification provision.

The public will have a 45-day period to submit comments in response to the proposals presented in the SNPRM. Detailed instructions on how to provide comments to the Commission will be included within the SNPRM document.

The Federal Maritime Commission encourages stakeholders and the public to actively engage in this rulemaking process, as their input is vital to shaping fair and effective regulations in the maritime industry.

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