Statement of Chairman Daniel B. Maffei on the Denial of the PMSA/WSC Petition for Review
Today, the Federal Maritime Commission issued an order – approved unanimously by the five Commissioners – rejecting the petition by the Pacific Merchant Shipping Association (PMSA) and the World Shipping Council (WSC) objecting to the Environmental Assessment and Finding of No Significant Impact in the Commission’s Notice of Proposed Rulemaking on Detention and Demurrage Billing Requirements. The groups submitting this petition also separately submitted substantive comments to the proposed rule itself, and the rejection of this petition in no way means that those views will be ignored as we proceed through the rulemaking process. Our goal is to craft a final rule that avoids unintended negative consequences, and sincerely-offered comments from stakeholders are extremely valuable to that end.
However, I feel I must call it out when I see an attempt to subvert the regulatory process by filing a petition. The PMSA/WSC petition claims to be promoting the public good, but actually seeks to misapply the National Environmental Policy Act (NEPA) to thwart the FMC’s efforts to implement the will of the Congress and the President of the United States. It opens a path to derail an FMC rulemaking that meets a requirement established in the Ocean Shipping Reform Act of 2022 (OSRA), which passed with overwhelming bipartisan support. The law specifically emphasized the importance of billing the appropriate parties to transactions, and the FMC is currently considering a proposed rule concerned with improving the fairness of detention and demurrage billing.
The filing of this petition (even after its rejection today) could lay the groundwork for the carriers to obstruct the proposed rule in Federal court by arguing for a full NEPA Environmental Impact Assessment – a process that often takes multiple years – before the rule can go into effect. It would certainly not be the first time that an industry utilized legal proceedings to find administrative avenues to undermine needed regulatory changes. To imply, as the petition does, that challenging the Commission’s Environmental Assessment is “the best way to address impacts on the quality of the human environment in lower income and minority communities surrounding seaport areas” fails the eye-roll test.
I see such dilatory tactics as wholly inconsistent with the individual statements of cooperation with the FMC’s broad efforts to implement OSRA that I have received from many members of the WSC board.
Commissioner Daniel B. Maffei is a Commissioner with the U.S. Federal Maritime Commission. The thoughts and comments expressed here are his own and do not necessarily represent the position of the Commission.