Even After OSRA Passage, FMC Still Needs Cases Filed for Effective Enforcement

The Ocean Shipping Reform Act (OSRA) will take time to implement, and the Federal Maritime Commission still needs companies to bring cases so it can effectively regulate ocean traffic, FMC Chairman Daniel Maffei said Sept. 19 during a panel discussion at the National Customs Brokers & Forwarders Association of America annual Government Affairs Conference.

Though OSRA is "the most significant piece of shipping legislation in 25 years," it is not a panacea for the industry, Maffei said. Ocean shipping is still a market-based system and he sees OSRA as empowering the FMC to be a better “referee."

"Rulemaking by itself, only does so much," Maffei said. The FMC needs enforcement successes to set a precedent and signal that it is both willing and able to stand up for the little guys, he said. The FMC still relies on individual members of the trade and logistics community in order to deliver meaningful enforcement, he said. Even though the enforcement branch is being "beefed up" following OSRA, the FMC is "still a small agency," he said. "Even when enforcement staffing is fully expanded, the FMC can't be everywhere."

Complaints can be made anonymously and the FMC enforcement branch will use that information to take action where it can, but real progress will be from cases brought on the record, he said. Maffei acknowledged that small companies still fear retaliation from big carriers if they bring cases publicly, but he noted that OSRA has a new anti-retaliatory provision that he hopes will encourage more businesses to file on-the-record complaints and cases. "I'm never going to tell you what you should do. That's not my job. But, I am going to fight for you to retain your right to bring a case," he said.

Maffei said he was "amazed by how big a change in behavior" he saw after a recent penalty against a major carrier. Maffei was optimistic that many of the abuses could be addressed quickly by only a few successful cases. “We don’t need to catch everybody” to effect a significant change of behavior across the industry, he said.