FMC Issues Supplemental Notice of Proposed Rulemaking on Unreasonable Refusal to Deal

A Supplemental Notice of Proposed Rulemaking (SNPRM) issued today by the Federal Maritime
Commission proposes how the FMC would implement the prohibition on common carriers unreasonably refusing available cargo space to shippers.

The SNPRM that will be published in the Federal Register is a continuation of a rulemaking process mandated by the Ocean Shipping Reform Act of 2022 (PL 117-146). The Commission published a Notice of Proposed Rulemaking (NPRM) in September 2022, entitled Definition of Unreasonable Refusal to Deal or Negotiate with Respect to Vessel Space (Docket No. FMC-2023-0010). In order to fully address issues raised during the public comment period for the NPRM, the Commission announced in January that it would pursue an SNPRM with an additional public comment period, instead of moving forward with a Final Rule.

The SNPRM contains key changes from the NPRM issued last year, including:

• Adding language to establish the elements for a refusal of cargo space accommodations claim.
• Revising the definition of transportation factors to focus on vessel operation considerations.
• Revising the definition of the term “unreasonable” to include a general definition and a non-exhaustive list of unreasonable conduct scenarios.
• Clarifying that vessel space services are included in the definition of vessel space accommodations.
• Proposing a mandatory export policy documentation requirement as an alternative to the previously proposed voluntary export strategy.
• Removing the voluntary certification provision.

Upon publication in the Federal Register, the public will have 45 days to provide comments in response to the proposals put forth in the SNPRM. Instructions on how to submit comments to the Commission are included in the SNPRM.