PART 542—COMMON CARRIER PROHIBITIONS Authority: 5 U.S.C. 553; and 46 U.S.C. 40104, 46105, 40307, 40501-40503, 40901-40904, 41101-41106. Source: 89 FR 59671, July 23, 2024, unless otherwise noted. § 542.1 Definition of unreasonable refusal of cargo space accommodations when available and unreasonable refusal to deal or negotiate with respect to vessel space provided by an ocean common carrier. (a) Purpose. (b) Definitions. Blank sailing Cargo space accommodations Documented export policy Sweeper vessel Transportation factors Unreasonable Vessel space accommodations (c) Elements for claims. (1) The respondent must be an ocean common carrier as defined in 46 U.S.C. 40102; (2) The respondent refuses or refused cargo space accommodations when available; and (3) The ocean common carrier's conduct is unreasonable. (d) Non-binding considerations when evaluating unreasonable conduct. (1) Whether the ocean common carrier followed a documented export policy that enables the timely and efficient movement of export cargo; (2) Whether the ocean common carrier made a good faith effort to mitigate the impact of a refusal; (3) Whether the refusal was based on legitimate transportation factors; and (4) Any other relevant factors or conduct. (e) Non-binding examples of unreasonable conduct. (1) Blank sailings or schedule changes with no advance notice or with insufficient advance notice; (2) Vessel capacity limitations not justified by legitimate transportation factors; (3) Failing to alert or notify shippers with confirmed bookings of any other changes to the sailing that will affect when their cargo arrives at its destination port; (4) Scheduling insufficient time for cargo tendering or vessel loading so that cargo is constructively refused; (5) Providing inaccurate or unreliable vessel information; or (6) The de facto, absolute, or systematic exclusion of exports in providing cargo space accommodations. (f) Elements for claims. (1) The respondent must be an ocean common carrier as defined in 46 U.S.C. 40102; (2) The respondent refuses or refused to deal or negotiate with respect to vessel space accommodations; and (3) The ocean common carrier's conduct is unreasonable. (g) Non-binding considerations when evaluating unreasonable conduct. (1) Whether the ocean common carrier followed a documented export policy that enables the timely and efficient movement of export cargo; (2) Whether the ocean common carrier engaged in good faith negotiations; (3) Whether the refusal was based on legitimate transportation factors; and (4) Any other relevant factors or conduct. (h) Non-Binding examples of unreasonable conduct. (1) Quoting rates that are so far above current market rates they cannot be considered a good faith offer or an attempt at engaging in good faith negotiations; or (2) The de facto, absolute, or systematic exclusion of exports in providing vessel space accommodations. (i) Use of sweeper vessels. (j) Documented export policy. (1) Each ocean common carrier must submit a documented export policy to the Commission once per calendar year and include, in a manner prescribed by the Commission, pricing strategies, services offered, strategies for equipment provision, and descriptions of markets served. Updates may be submitted more than once per year if the ocean common carrier chooses to do so. Other topics a documented export policy should also address, if applicable, include: (i) The effect of blank sailings or other schedule disruptions on the ocean common carrier's ability to accept shipments; (ii) The ocean common carrier's rules and practices for the designation and use of sweeper vessels; and (iii) The alternative remedies or assistance the ocean common carrier would make available to a shipper to whom it refused vessel space accommodations. (2) A documented export policy required to be filed by this part must be submitted to: Federal Maritime Commission, [email protected]. (3) The documented export policies filed in accordance with this section shall not be circulated outside of the Federal Maritime Commission. These documents, and the information contained therein, shall not be publicly disclosable, in whole or in part, including in response to requests under the Freedom of Information Act. The information may, however, be disclosed to the extent that it is relevant to an administrative or judicial action or proceeding; or to either House of Congress, or a duly authorized committee or subcommittee of Congress. (k) Shifting the burden of production. (1) The initial burden of production to establish a prima facie case of a violation of this part is with the complainant or the Commission's Bureau of Enforcement, Investigations, and Compliance. (2) Once a complainant sets forth a prima facie case of a violation, the burden shifts to the ocean common carrier to justify that its actions were reasonable. (3) The ultimate burden of persuading the Commission always remains with the complainant or the Commission's Bureau of Enforcement, Investigations, and Compliance. [89 FR 59671-59672, July 23, 2024, as amended at 90 FR 26223, June 20, 2025] § 542.2-542.98 [Reserved] § 542.99 OMB control number assigned pursuant to the Paperwork Reduction Act. The Commission has received Office of Management and Budget approval for the collection of information in § 542.1(j) of this part pursuant to the Paperwork Reduction Act of 1995, as amended. The valid control number for this collection is 3072-0076. [90 FR 30, Jan. 2, 2025]