In the Ocean Shipping Reform Act of 2022 (OSRA 22) Congress directed the Commission to initiate a rulemaking that, “shall only seek to further clarify reasonable rules and practices related to . . . the final rule published on May 18, 2020, entitled ‘Interpretive Rule on Demurrage and Detention Under the Shipping Act’.” Instead of following that instruction, the Commission proposes to abandon the Interpretive Rule’s fact-specific analysis entirely and replaces it with absolute prohibitions on charging detention or demurrage to broad classes of entities.

WSC agrees with the Commission that allegations of “unreasonable refusal to deal or negotiate” be dealt with on a case-by-case basis and that using a suite of non-exclusive factors is both appropriate and consistent with its past precedent. This is the approach that the Commission has consistently used when adjudicating cases brought under 46 U.S.C. § 41104(a) and its predecessors. It is important to remember in this regard that OSRA 22 did not create the “unreasonable refusal to deal” prohibition. Instead, OSRA 22 merely added language to the section by expressly naming vessel space accommodations as a factual situation to which the prohibition applies. Thus, adherence to past Commission precedent is required absent a reasoned explanation why its prior policies and standards are being changed.

Although WSC agrees with the Commission’s general approach, there are four specific points on which WSC urges the Commission to amend its proposal before publishing a final rule…