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August 28 2023

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August 28, 2023 | Journal of Commerce 37 Government including rebuilding sales rela- tionships with foreign buyers and regaining market access for US commodities at globally competi- tive prices. "These costs and the challenge of resolving them compel a compre- hensive reassessment of the ways the ocean common carriers engage with US shippers," ACSA said. The FMC will review the nearly two dozen comments submitted on the proposed rulemaking as it moves toward a final rule; there is no deadline for when the agency must publish the rule. JOC email: The American Cotton Shippers Association (ACSA) — which said in its comments cotton shippers faced nearly $639 million in damages owing to denial of vessel space from 2019 to 2021— asked that the FMC consider, in addition to lost revenue, the longer-term costs of ser vice being refused, represents major ocean carriers, both believe the FMC must navigate allegations of unreasonable refusal to deal on a case-by-case basis using a factors-based approach because, they said, "unreasonable" on its face is too vague and subjective to define despite the FMC's prior attempts. For example, a carrier's decision to forgo exporting agricultural goods during the pandemic to expedite the movement of empty containers back to Asia would be viewed as reason- able by ocean carriers regarding their own business interests. But NAMI said those reasons are not fair from the perspective of the wider US agri- cultural economy. The latest attempt to implement fresh reforms in US shipping law remains in limbo, five months aer the bill was introduced in the House of Representatives. Industry observers say the lack of movement is likely tied to federal regulators still sorting through the fallout of last year's passage of the Ocean Shipping Reform Act of 2022 (OSRA-22). "Implementing further changes to the [US] Shipping Act as the indus- try adapts to OSRA-22 would be confusing, costly and not well received by those on the front line of the supply chain," Robert Murray, president of the National Association of Waterfront Employers (NAWE), told the Journal of Commerce Aug. 11. Reps. John Garamendi (D-Calif.) and Dusty Johnson (R-SD), who helped spearhead the passage of OSRA-22, introduced in March an updated version of the bill that would seek, among other things, to end ocean carrier antitrust immunity and possibly dismantle carrier alliances and other forms of carrier cooperation, while drawing a sharp line on the involvement of China-based entities in US shipping. But the bill, the Ocean Shipping Reform Technical Act of 2023 — or OSRA 2.0 — has been stalled in the House since May 23, when the House Transportation and Infrastructure Committee passed an amended ver- sion of the bill. Murray said the version of OSRA 2.0 passed by the House committee is "a lot better than the original circulated dra." But he believes it's too soon to update the shipping reform that was signed into law in June 2022 and is still being implemented. For example, the US Federal Maritime Commission has yet to finalize rules on detention and demurrage pro- cesses that were due June 15 and will be sorting through a second pro- posed rulemaking in the months ahead as the agency attempts to define what is considered unreasonable refusal by ocean carriers to negotiate vessel capacity for shippers. "Legislating on top of a rulemaking process would have unintended consequences for the supply chain and the waterfront workforce," Murray said. Johnson tried to push part of the OSRA 2.0 legislation through before Congress le for its August recess by hitching it onto the National Defense Authorization Act (NDAA) of 2024. But the House Rules Commit- tee eventually stripped the $886 billion NDAA of all proposed amend- ments that weren't directly tied to national defense, putting OSRA 2.0 in limbo again. The amendment isn't being considered in the Senate's version of the NDAA. Congress reconvenes on Sept. 5. "We will be fighting to get this back into the NDAA when the two versions go to conference," a spokesperson for Johnson's office told the Journal of Commerce. JOC email: Legislative limbo Latest push in House for US shipping reform stalls, for now By Teri Errico Griffis "The regulation should not transform the Shipping Act into a loaded gun pointed at ocean carriers." "Implementing further changes ... would be confusing, costly and not well received."

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