Why Agreements are Monitored
Ocean carriers and MTOs receive immunity under the Shipping Act to cooperate in agreements for the purpose of achieving cost and service efficiencies. To ensure that the behavior of the parties complies with the standards of the Shipping Act, BTA administers the Commission’s monitoring program of agreements.
Agreements with certain authorities (e.g., to set capacity or discuss rates) are required under the Shipping Act to provide BTA data and information on a regular basis.
In general, agreements are monitored to ensure that a reduction in competition caused by the parties does not result in an unreasonable reduction in transportation service or an unreasonable increase in transportation cost. If this occurs, the Commission may take civil action to seek an injunction of the operations of the agreement at any time the agreement is in effect. 46 U.S.C. § 41307.
Types of Agreements Subject to Monitoring
Agreements with authority that pose the greatest competitive concerns are subject to the most stringent reporting requirements. These include agreements between ocean carriers that contain authority to discuss and agree on rates or the supply of vessel capacity in the market, i.e., capacity rationalization authority. The most well-known of these agreements are the global shipping alliances.
Given the alliances’ broad scope and potential market power, the agency has assigned extensive reporting requirements to monitor their competitive impact on freight rates and service levels in the transpacific and transatlantic trades.
Agreements between MTOs can also be subject to reporting requirements, particularly if they have the authority to set terminal rates and/or cooperate on operations and joint contracting.
In addition, the Commission has the authority to prescribe specific reporting requirements on any agreement filed under the Shipping Act. Such cases usually involve agreements with unique authority that the Commission deems necessary to monitor, such as chassis pools, traffic mitigation programs, and material/data exchange platforms.
Data and Information
An agreement’s authorities define the data and information to be collected. Ocean carrier agreements with rate or capacity authority may provide periodic reports on each party’s revenues, cargo volume, vessel capacity, and any service changes. For the alliances, the carriers report additional operational data, including advance notices of blank (canceled) sailings and information on delayed sailings and skipped ports.
MTO agreements with rate and/or operational authority submit information on terminal ownership, throughput volumes, and truck turn times, among others. In addition to monitoring data, many agreements submit minutes of the parties’ meetings held under the agreement. 46 C.F.R. § 535.704.
How the Commission uses Monitoring Data and Information
Agreements are primarily monitored to ensure that the actions of the parties do not unreasonably impact transportation services and costs. The reporting requirements are designed to assess how agreements are affecting competition in the U.S. liner shipping trades. Key data metrics provide indications of how cooperation under agreements impact competition.
BTA staff conduct analyses to track trends and market conditions in the international liner shipping industry. Further, the review of meeting minutes provides insight on the agreement’s activities and whether actions of the parties pose any violation of the Shipping Act. BTA prepares reports and presentations of the agreements to the Commission to keep them informed and provides recommendations on potential Commission actions based on its analyses.