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OSRA 2022 implementation concerns highlighted in US mid-term elections

Photo: Unsplash View of US Capitol building
The Ocean Shipping Reform Act 2022 (OSRA 2022) has resurfaced in the US mid-term elections with concerns over its implementation.

The “mid-term” elections are happening as this article is published; President Biden’s term continues for another two years, but control of the US Congress, the legislative branch of the government is up for grabs. Depending on how the results turn out, the Congress could turn to “red” (Republican), instead of its present “blue” (Democratic) patina.

In the contentious arena of US politics, managing of the supply has been one of a few issues of widespread agreement. So it was that the Ocean Shipping Reform Act of 2022, which grew out of legislation introduced in 2021 as queues of ships were waiting outside West Coast ports, gained further traction as vessels were shifting to East Coast anchorages. It was signed into law in mid-June, 2022.

The bill’s sponsors were Representative Dusty Johnson (Republican from South Dakota) and John Garamendi (Democrat from California). Both represent districts heavily dependent on agricultural production; not coincidentally, agricultural interests were major supporters of the OSRA bills.

Politics did re-surface, in the days prior to 2022’s Election Day, as the US was being overwhelmed with all manner of political messaging. Even though Johnson and Garamendi, the sponsors of the OSRA 2021 and 2022 legislation, are likely to win re-election, they voiced concerns about OSRA 2022 implementation in a letter to the Federal Maritime Commission (FMC) tasked with carrying out the mandates in the OSRA 2022.  

Their early-November letter, penned on the eve of a possible mid-term shift in the Congress, follows the FMC’s solicitation of formal comments on its proposed wording- offered in a Notice of Proposed Rulemaking (NPRM). The letter-writing tactic is unusual; the official submission period for comments had closed in late October- two weeks prior to the Nov 4th letter.

In the letter sent to the FMC, which proposed specific new regulatory language, stemming from OSRA 2022’s dictates, the two Representatives, joined by a cadre of other California Congressmen, voiced concern about wording that detailed how “unreasonable conduct” by carriers would be defined.

In its NPRM, the FMC had stated that: “The common carrier prohibitions in 46 U.S.C. 41104 [the relevant legislation] do not distinguish between US exports or imports. If adopted, this proposed rule would apply to both.” The Commission also tried set a tone of seeking to look at each complaint that it received, on a case-by-case basis, rather than offering a blanket prescriptive approach; this seemed to irk multiple cargo interests who had submitted comments to the NPRM.

One specific concern voiced in the Johnson Garamendi letter is the availability of empty containers- which, during the height of 2021’s supply chain “crisis”, were allegedly whisked back to Asian ports, so that carriers could then take advantage of the historically high rates for moving boxes inbound to the US West Coast. In doing so, exporters of US agricultural products, and others- such as recycled materials, were then deprived of capacity that had been readily available in prior years, if carriers had indeed reduced availability of boxes for US exporters.  

In the letter, the Representatives reprise the late 2021 - early 2022 events, including the cancellation of certain port calls, which directly impacted California shippers, and go on to stress the importance of exports. The note that: “ocean carriers must provide reasonable opportunities for American exporters to get their goods to foreign markets. For American agricultural and other major exporters access to valuable foreign markets is hard won…When finalized, this Congressionally directed rule-making [OSRA 2022] must ensure reciprocity in trans-oceanic trade between other countries and the United States.”

With a markedly different “supply chain” environment than in late 2021 - early 2022, and maybe a different Congressional environment on 1 January 2023, when the soon to be elected Congress begins its session the FMC’s implementation of OSRA 2022 will likely continue to be a source of political noise.

Resources reader: FMC Docket search, includes comments on NPRM (Docket 22-24).    

Letter to the FMC can be found here: