Under the new requirements of the U.S. Cargopping Reform Act of 2022 (OSRA2022), a maritime common carrier may not unreasonably refuse to trade or negotiate for shipping space. The notice of proposed rulemaking Outlines what constitutes a violation and the criteria that FMC will consider when assessing reasonableness. Most notably, the burden of proof is also shifted from the shipper to the maritime common carrier, commonly known as the "reversal of the burden of proof". The proposed rules would apply to imports and exports from the United States.
The proposed Rulemaking notice is a new initiative by the FMC to implement OSRA, requiring the FMC to make multiple rulemaking and to publish the rule within six months of the distribution of the OSRA. The FMC is seeking public comment on the proposed rulemaking Notice of "Unreasonable Refusal of Booking by Maritime Common Carrier," and interested parties are required to submit comments within 30 days of the date of publication. Due to the short regulatory time frame, it is not expected that the deadline will be extended, so interested parties should submit comments before the deadline.
Constituent elements and definitions
The notice of proposed rulemaking sets out the elements of prima facie evidence:
1. The respondent is a common carrier by sea;
2. The respondent refuses to trade or negotiate for shipping space;
3. Rejection is unreasonable.
Because the term "shipping space" has never been defined by U.S. justice and never interpreted by the FMC, the notice of proposed rulemaking recommends that the term be defined.
As the transport requirements of each shipment are unique, FMC acknowledges that it is not possible to regulate for every possible situation, and therefore, the cases of alleged violations will be tried on a case-by-case basis.
At the same time, as required by U.S. law, FMC consulted the U.S. Coast Guard on the proposed rulemaking notification.
