The US Federal Maritime Commission (FMC) is approaching the final stage of a proposed overhaul of its regulatory procedures, with a package of changes now under review at the White House. The initiative aims to modernise the agency’s approach to industry consultation and simplify the process for developing and amending regulations.
The proposed rule, known as Rulemaking Procedures, was published for public comment in May. On 21 October, the Notice of Proposed Rulemaking (NPRM) was submitted to the Office of Information and Regulatory Affairs, part of the White House Office of Management and Budget, marking a significant step towards the adoption of a revised regulatory framework.
Although largely administrative, the proposed changes could have important consequences for maritime industry stakeholders, including shipping companies, cargo owners, terminal operators and the organisations representing their interests.
At the heart of the proposal is a relaxation of the FMC’s longstanding restrictions on ex parte communications during informal rulemaking. These exchanges involve direct discussions between industry representatives and agency officials or commissioners about pending regulations, without other interested parties being present or receiving advance notice.
The existing restrictions were intended to safeguard the regulatory process against undue influence. However, they could also limit opportunities for businesses to provide practical feedback while new rules are being developed.
Under the proposed framework, FMC commissioners and agency staff would have greater explicit discretion to engage in informal meetings and discussions with ocean carriers, terminal operators and shipper groups while regulatory measures are under consideration or undergoing revision.
The NPRM also seeks to bring the rules governing informal rulemaking together under a modernised Subpart D of the FMC’s rules of practice and procedure. In addition, it would simplify the process through which private parties petition the commission to introduce, amend or repeal regulations. Administrative requirements would also be reduced, including through the removal of petition filing fees.
For shipping lines and cargo owners, the proposed reforms are intended to create more opportunities to discuss potentially complex regulatory requirements with the commission at an earlier stage, before proposed measures are finalised through the formal notice-and-comment process.
The level of public response to the initiative has been relatively limited compared with other recent FMC actions. Proposals involving ocean carrier billing practices and demurrage and detention charges have attracted thousands of contentious industry comments, whereas the provisions addressing ex parte communications received only a small number of submissions.
Nevertheless, the proposal has raised concerns about unequal access to regulators. One anonymous commenter opposed the changes, arguing that lifting the restrictions could give large shipping companies preferential access to decision-makers at the expense of smaller businesses and consumers.
The commenter stated that removing the ban would provide major shipping corporations with “unfair backdoor access to regulators that small businesses and everyday consumers will never have.” The submission also called for the FMC to remain independent of political control from the White House, arguing that the commission was specifically established to protect importers and exporters from the influence of powerful industry interests.
The FMC has sought to address these concerns within the proposed framework by requiring information from both written and oral ex parte communications to be included in the public rulemaking docket. This requirement is intended to ensure that such exchanges are documented and made accessible as part of the regulatory process, even as the agency considers allowing more direct engagement with industry participants.
