§ 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.* This part establishes the elements and definitions necessary for the Federal Maritime Commission (Commission) to apply 46 U.S.C. 41104(a)(3) with respect to refusals of cargo space accommodations when available for containerized cargo and to apply 46 U.S.C. 41104(a)(10) with respect to refusals of vessel space accommodations provided by an ocean common carrier with respect to containerized cargo. This part applies to complaints brought before the Commission by a private party and enforcement cases brought by the Commission.
( b ) *Definitions.* For the purposes of this section: *Blank sailing* means a sailing skipping one or more specific port(s) while still traversing the rest of the scheduled route or the entire sailing being canceled.
*Cargo space accommodations* means space which has been negotiated for or confirmed aboard the vessel of an ocean common carrier for laden containers being imported to or exported from the United States. Cargo space accommodations includes the services necessary to access and load or unload cargo from a vessel calling at a U.S. port.
*Documented export policy* means a written report produced by an ocean common carrier that details the ocean common carrier's practices and procedures for U.S. outbound services.
*Sweeper vessel* means a vessel exclusively designated to load and move empty containers from a U.S. port for the purpose of transporting them to another designated location.
*Transportation factors* means factors that encompass the vessel operation considerations underlying an ocean common carrier's ability to accommodate laden cargo for import or export, which can include, but are not limited to, vessel safety and stability, weather-related scheduling considerations, and other factors related to vessel operation outside the vessel operator's control and not reasonably foreseeable.
*Unreasonable* means ocean common carrier conduct that unduly restricts the ability of shippers to meaningfully access ocean carriage services from that ocean common carrier.
*Vessel space accommodations* means space available aboard a vessel of an ocean common carrier for laden containers being imported to or exported from the United States. Vessel space accommodations also includes the services necessary to book or access vessel space accommodations.
( c ) *Elements for claims.* The following elements are necessary to establish a successful private party or enforcement claim under 46 U.S.C. 41104(a)(3) with respect to refusals of cargo space accommodations when available: ( 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.* In evaluating the reasonableness of an ocean common carrier's refusal to provide cargo space accommodations, the Commission may consider the following factors: ( 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.* The following are examples of the kinds of conduct that may be considered unreasonable under 46 U.S.C. 41104(a)(3) when linked to a refusal to provide cargo space accommodations: ( 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.* The following elements are necessary to establish a successful private party or enforcement claim under 46 U.S.C. 41104(a)(10) with respect to refusals of vessel space accommodations provided by an ocean common carrier: ( 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.* In evaluating the reasonableness of an ocean common carrier's refusal to deal or negotiate with respect to vessel space accommodations, the Commission may consider the following factors: ( 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.* The following are examples of the kinds of conduct that may be considered unreasonable under 46 U.S.C. 41104(a)(10) when linked to a refusal to deal or negotiate: ( 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.* Ocean common carriers are not precluded from using sweeper vessels previously designated for that purpose to reposition empty containers; however, the designation of a vessel as a sweeper vessel is subject to Commission review to determine whether the designation results in an unreasonable refusal of ocean carriage services.
( j ) [Reserved]
( k ) *Shifting the burden of production.* In accordance with applicable laws, the following standard applies: ( 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.