b'10American Journal ofTransportation ajot.comOSRA 22 rulemaking seen as not protecting ag exporters interestsAgricultureshipperscomplainproposed FMC reg allows carriers too much leeway.By Peter Buxbaum, AJOTOver the last three years,refusal to deal or negotiate. U.S.agriculturalexportersAnoceancommoncar-havecomplainedthattheirrierscategoricalexclusion cargowasntbeingloadedofU.S.exportsfromits at seaports, as ocean carriersbackhaultripswouldcreate prioritizedtherepositioningarebuttablepresumptionof ofemptycontainersto Asiaunreasonablenessunderthe toaccommodateasurgeinNPRM.Toovercomethe high-payingimports.Fed- presumption,carriersmay eralMaritimeCommissionprovideacertificationbya (FMC) documents show thatU.S.-basedcomplianceoffi-the average rate of a 20-footcerthatexplainstheocean drycontainermovingfromcommoncarriersdecision ShanghaitotheU.S.Westandspecificcriteriausedto Coastreached$8,130in(RULEMAKINGcontin-January 2022, while the rateued on page 11)for the backhaul was $1,220. The import/export ratio in the Asia-to-U.S.tradedropped from39%in2019to29% in2021,apatternthatcon-tinued into 2022. As a result, according to the Agriculture TransportationCoalition (AgTC), 22% of U.S. agricul-tural exports in 2021 were not delivered.osra 22anda gs HIppersThe Ocean Shipping Reform Actof2022(OSRA22), which was signed into law on June 16, was meant to remedy thissituationonbehalfof agricultural exporters. OSRA 22 prohibited vessel-operating ocean carriers from discrimi-nating against U.S. exporters andunreasonablyrefusing cargo space accommodations. ThebillrequiredtheFMC to write the rules that would define unreasonableness.InSeptember,theFMC issued those draft regulations, elicitinghowlsofprotests fromagriculturalexport-ers, and a far different reac-tion, although not an overly enthusiastic one, from ocean carriers. Under the new pro-posedrulemaking(NPRM), an unreasonable refusal to deal or negotiate with respect to vessel space is to be dealt with on a case-by-case basis. Among the factors to be con-sideredincludewhetherthe carrierhadadocumented exportstrategydesignedto promotetheefficiencyof cargo movement; whether the carrier engaged in good faith negotiationsandmadefair and consistent business deci-sions;andwhetherlegiti-matetransportationfactors in the refusal came into play, suchasthecharacterofthe cargo, schedules, and the ade-quacyoffacilities.Neither the status of the shipper nor commercialconvenience alone, the NPRM said, is to beconsideredareasonable basis for a common carriers'