All Episodes

June 7, 2024 53 mins

Topic of the Week (6/7/24):

We talk a lot ABOUT the Federal Maritime Commission, so today we are talking TO the Federal Maritime Commission - well, one fifth of it anyway. Today we welcome FMC Commissioner Carl Bentzel to the show!

The Maritime Professorᵀᴹ presents By Land and By Sea - an attorney breaking down the week in supply chain

with Lauren Beagen (Founder of The Maritime Professorᵀᴹ and Squall Strategiesᵀᴹ)

Let's dive in... [discussion links]

D&D Final Rule - 46 CFR Part 541:
https://lnkd.in/gPgEMk-2

FMC Report "U.S. Container Port Congestion & Related International Supply Chain Issues: Causes, Consequences & Challenges" (July 2015):
https://www.fmc.gov/wp-content/uploads/2018/09/PortForumReport_FINALwebAll.pdf

MTDI Website:
https://www.fmc.gov/fmc-maritime-transportation-data-initiative/

MTDI engagement site:
https://www.regulations.gov/docket/FMC-2023-0016/document

Request for Information #2 (due June 14):
https://www.regulations.gov/document/FMC-2023-0016-0047


-------------------------------
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Transcript

Episode Transcript

Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:26):
no-transcript.
Can't walk to the beat.
When you see me coming, makesome room.

Speaker 2 (00:34):
Oh, everywhere I go, I'm in the spotlight.

Speaker 1 (00:38):
This is a good life.

Speaker 2 (00:43):
Oh, I'm living bold.

Speaker 1 (00:44):
This is what it looks like On the pitch and out of
the world.
We talk a lot about thehappenings at the Federal
Maritime Commission, so todaylet's talk to the Federal
Maritime Commission, or at leastone-fifth of it.

(01:07):
Right Today, we welcome FMCCommissioner Carl Bensel to the
show.
So stick around, you're notgoing to want to miss this.
Hi welcome to, by Land and bySea, an attorney breaking down
the weekend supply chainpresented by a maritime
professor.
Me, I'm Lauren Began, founder ofthe Maritime Professor and
Squall Strategies, and I'm yourfavorite maritime attorney.
Join me every week as we walkthrough both ocean transport and

(01:30):
surface transport topics in thewild world of supply chain.
As always, the guidance here isgeneral and for educational
purposes only.
It should not be construed tobe legal advice and there is no
attorney-client privilegecreated by this video or this
podcast.
If you need an attorney,contact an attorney.
So, since we have our veryspecial guest on the show today,
we're going to be covering ourtop three stories of the week,

(01:54):
but during our conversation.
So, without further ado, let'sbring in Commissioner Carl
Bensel.
Hi, commissioner.

Speaker 2 (02:01):
Hey, lauren, it's great to see you again.

Speaker 1 (02:04):
Thanks for being on today.
So, by way of introduction,commissioner Carl Bensel was
nominated by President Trump onJune 12th 2019, and confirmed by
the Senate on November 21st2019, being sworn into office
actually on December 9th 2019.
Is such an interesting time tohave started there.

(02:25):
These are five-year terms andCommissioner Carl Bensel's
current term expires on June 30,2024.
But prior to his appointment atthe Federal Maritime Commission
, commissioner Bensel createdand established a consulting
services company, benselStrategies which I think is so
cool where he representedclients on regulatory and
legislative issues within theareas of transportation, energy
and other areas of federalregulatory oversight.
From 2004 to 2014, commissionerBensel served as VP and head of

(02:52):
the Federal Advisory AdvocacyDivision of a full-scale public
relations firm, the DCI Group.
And prior to working in thepublic sector, commissioner
Bensel served the public sectorfor 10 years as a Senate
Professional Committee staffer,including Senior Democratic
Counsel for the Senate Committeeon Commerce, science and
Transportation.
While working in the Senate,commissioner Bensel served as
one of the principals incrafting the Maritime Security
Act of 1996, the Ocean ShippingReform Act of 1998, which, if

(03:17):
our listeners listen closely,that was the first ASRA.
And in 2002, after the attacksof 9-11, commissioner Benslow
worked on the requirementsmandated for maritime security
through the MaritimeTransportation Security Act of
2002.
He also dealt with mattersimpacting economic regulation of
rail and surface industriesbefore the Surface
Transportation Board and avariety of energy-related

(03:39):
regulatory issues.
You earned your Bachelor's ofArts from St Lawrence University
in Canton, new York, your JurisDoctor, your Law degree from
University of Alabama inTuscaloosa, alabama, and your
Master of Laws from theAdmiralty Law Institute at
Tulane University in New Orleans.
Quite the background and agreat collection of subject
matter issues.
So you know I want to talkabout what drove you to get into

(04:05):
maritime and transportation andyou have quite this lengthy
history.
You know, as we know, you'reone of five commissioners at the
Federal Maritime Commission,all political appointees
nominated by the president,confirmed by the Senate.
But how did you get into supplychain and maritime and cargo
movement?
You obviously went to Tulane.
So it seems at some point yourealized you had an affinity for

(04:25):
maritime law.
For our listeners, tulane isrenowned for its maritime law
program.
Did you grow up on the water?
Are you from New Yorkoriginally?

Speaker 2 (04:33):
You know what?
I'm from Buffalo, new York, soI could lay claim to Lake Erie
three or four miles away, and Iwent to school at St Lawrence,
as you said.
So I've been close to the GreatLakes and the internal
waterways but never the coastlike you until really being down

(04:54):
in New Orleans.
But it was my first year in lawschool that they sort of went
through the different areas oflaw and they said you know,
maritime law is about aninternational body of law
regulating trade.
There's a national security andenvironmental considerations.

(05:14):
And after listening to peopletalk about taxes and labor, laws
and torts.
I said I think I want to be amaritime lawyer, and so I ended
up at Tulane, and the subjectmatter, as you know, is truly
enjoyable and something that Ithink all of the practitioners
in transportation enjoy, at thevery least talking about it, if
they're not sufferingfrustration as a result of

(05:35):
what's going on.
So that's my angle in maritimelaw.

Speaker 1 (05:40):
How great, how interesting that University of
Alabama had a maritime exposure,because not often in has a
focus on commercial maritimelaws specifically, I think,

(06:08):
hamburg, germany and England.

Speaker 2 (06:12):
But I was advised that that was the place to go if
I really wanted to get into theindustry and in fact it did
really help me springboard acareer first in Congress as an
advisor and then in the privatesector, now as a commissioner at
the FMC.

Speaker 1 (06:30):
Yeah, that's right, and actually I would like to
throw in Roger Williams.
University in Rhode Island isbecoming more renowned for
maritime law and law for supplychain issues.

Speaker 2 (06:42):
Well, when I started, you know, there was the State
Maritime Academies and the KingsPoint US Merchant Marine
Academy, but there reallyweren't supply chain programs
and degrees.
And so it's in my timeframeI've seen multiple universities
establish programs in supplychain, and I think it's because

(07:03):
it's a recognition of howimportant that supply chain is
to our economic productivity.
So things have changed since Istarted.

Speaker 1 (07:13):
That's right, and it's just a fascinating area of
law, right?
I mean, if you have to talkabout mundane legal issues, you
might as well throw in water andboats and all sorts of fun
stuff.

Speaker 2 (07:21):
That's right.
A bridge being taken out by aship does capture the attention
of the public a little bit morethan a slip and fall on icy
sidewalks.

Speaker 1 (07:32):
It does.
It does, yeah, and what aterrible thing.
But what a I mean just afascinating series of events
that came from the Key Bridge,elysian, because the fact that
and I don't want to veer too farinto this but the fact that
they were able to go from theharbor pilots on the vessel to

(07:53):
the surface transportation sideright.
So this podcast talks a lotabout the silos that happened
between maritime transportationand surface transportation.
It was, I mean, 90 seconds, Ithink, between the loss of power
to stopping bridge traffic.
I mean that's such a testamentto people kind of paying
attention and having preparationfor the maritime side of things

(08:13):
.

Speaker 2 (08:14):
You know, I visited almost every US port and the
coexistence of the businessentities that are involved in
transportation, whilefrustrating because it is
complex and difficult andincredibly challenging, they
work together really well andevery single movement of cargo

(08:34):
is going to virtually touchhundreds of people while en
route and people that affectthat and a number of federal
agencies from NOAA that'sproviding weather advice and
navigational advice on how toget in and out with the weather
to the Coast Guard's marinesafety requirements to the

(08:58):
industry themselves.
Frankly, the industry cametogether to get that channel
clear in a remarkable period oftime.
The US Jones Act fleet ofdredgers and marine construction
companies did a remarkable jobin responding Navy, cb engineers

(09:22):
and NOAA Corps of Engineers andCoast Guard, led by Coast Guard
as the task leader.
So it really was a good newsstory.
But that's all throughout theUnited States.
Every port community is acommunity and they do try to
work together.
Sometimes it becomes a littledysfunctional when we have

(09:44):
checkpoints.

Speaker 1 (09:45):
That's right.
But oftentimes there's harborsafety committees that are kind
of the group stakeholders forthat port and what a great show
of, like you're saying,community for that area.
But also there was a little bitof FMC involvement not
regulatory, not necessarilyemployee related, but our former

(10:06):
FMC Commissioner, bill Doyle,now the CEO of Dredging
Contractors of America, like yousaid, the dredger community was
such a pivotal piece in gettingthat channel reopened.
So FMC is everywhere, right.

Speaker 2 (10:18):
Yeah, well, our chairman and Commissioner Vekic
went down there.
We have an internal dashboardapprising us of the situation.
We advised people that ourstandards were still applicable
and we didn't want a situationwhere to restrictions that

(10:39):
really harm the shippingcommunity.
But I really think that itwould show the industry's
fortitude, their togetherness,the ability to work together,
and that's just what you have tohave if it's something like
maritime transportation andsupply chain.

Speaker 1 (10:56):
Yep, that's right, that's so important.
Well, so let's get back to alittle bit of kind of what drove
you into maritime issues,obviously.
So you found some interest init and you found your way over
to Tulane.
But then you had some prettyinteresting positions over in
Congress, right?
So you had both four years overthe House Committee on Merchant
Marine and Fisheries Committee,which, as I understand that
committee has since morphed intosomething else, but then you

(11:20):
also worked on the Senate sideas well, and so what a great
exposure to both sides of Houseand Senate and the Senate
Committee on Commerce, scienceand Transportation, which
obviously is still in existence.
So talk to me a little bitabout that.
How did you find your way?
Did you want to be in DC?
Did you kind of accidentally goto DC?

Speaker 2 (11:38):
You know it really wasn't a great period of time
for the maritime community theearly 90s.
It was the recession and as amaritime attorney you sort of
practice in one area that has acoastal environment, so you
couldn't target one state per seand I ended up going to the

(11:58):
District of Columbia becausethere were so many different
maritime agencies andopportunities for business at a
time.
In fact, I think I was going infor my third interview with the
then chairman of the FederalMaritime Commission, Senator
Bill Hathaway, who used to bechairman here and, somewhat

(12:19):
frustrated, I went in to see mycongressman and he turned out to
be the chairman of the HouseCommittee on Merchant Marine and
Fisheries, and this was rightin the aftermath of the Exxon
Valdez, and I was actually hiredto do international shipping
issues as a council, and so thefirst hearing I ever did was a
FMC authorization hearing in1990.

(12:41):
So that's how I started inCongress.
It was a crazy career that gaveyou almost every opportunity to
learn about chipping issuesthat you could ever do.
I was there during 9-1-1 andremember airplanes bearing down
on our office buildings.
I was exposed to anthrax.

(13:03):
In the course of my career I wasexposed to shootings and
attacks in the US Capitol andthroughout it all, I was the
primary staffer on the Senateside and a little bit on the
House side dealing with maritimeissues.
So I would deal with the CoastGuard and the industry

(13:24):
throughout my career and itreally was an incredible
learning experience, becauseeveryone basically comes into
Congress and makes their pitchabout policy issues.
So I've had opportunities totravel, participate in
international events and learn alot about maritime policies
through that experience.

(13:45):
So really it really was a great, great career.
I worked with three greatsenators Senator Hollings from
South Carolina, senator JohnBreaux from Louisiana and
Senator Dan Inouye from Hawaii.
So I was either visiting theirports in Charleston, new Orleans

(14:06):
or Honolulu, and so I was knownas the best traveler on the
committee based on mydestination.

Speaker 1 (14:16):
Oh, that's great and what great exposure.
I mean you know the variety ofthose ports and you know the
commodities coming through thereand what a great it's.
Such a DC is such a wonderfulcity to kind of cut your teeth
in, right, because you reallyget exposed to so many really
high level issues I mean, right,half of Congress is probably
run by 20 somethings and thenalso the politicals and the

(14:38):
members.
But it's just such afascinating world to to learn
because you get thrown into, asyou're saying, international
issues that at kind of a you'restill learning stage of your
career.
So what a what a fascinatingexperience that must have been.

Speaker 2 (14:54):
You know it was I mean, I've been, I was forced to
as the primary attorney dealingwith these issues, with a lot
of high profile issues.
I remember when Sealandshipping lines was sold foreign
and the American president lines, the Ocean Shipping Reform Act.
I actually worked on theelimination of the ICC and the

(15:16):
creation of the SurfaceTransportation Board.
I did railroad and trucking aswell, 9-1-1.
I was actually at the WorldTrade Center on August 28th
talking to the Port Authority ofNew York, new Jersey, about
legislation that we'd introducedon security that they were
opposed to.
And I was in my office whenthere was an attack, an airplane

(15:41):
attack, next to the aviationcouncil, who told me we were
going to be attacked by hijackedairplanes.
So I had so many experiencesthere that tempered who I am and
why I like this.
And now I'm back involved intothe nitty gritty issues of

(16:02):
maritime policies that we wouldconsider at the FMC.
So I've sort of come fullcircle from where I started.

Speaker 1 (16:12):
Wow, yeah, certainly, if you can't talk about
whatever you can't talk about,but the plane that hit the
Pentagon.
There are some reports outthere that said that might have
actually been destined for otherlocations in DC, perhaps even
the Capitol.

Speaker 2 (16:28):
Or the.

Speaker 1 (16:29):
Pennsylvania plane might have been.

Speaker 2 (16:30):
So the Pennsylvania plane was the one that they
thought was either going to beheaded towards the White House
or the Capitol.
Now, if you know the terrain inWashington DC, the White House
is protected by the WashingtonMonument and is very low sitting
.
The Capitol sits up on a hillwhere there's seemingly a runway

(16:50):
through a domed building.
So the consensus for thesecurity personnel was that it
was probably aiming towards theCapitol, and I remember you know
everything about that day.

Speaker 1 (17:06):
Yeah, and to be told it was on the way.
I mean that must have been ayeah.

Speaker 2 (17:09):
Okay, what do we do?
Yeah, no, my wife worked forthe chairman of the Senate
Appropriations Committee, so herroom looked right out over the
Washington Monument, right downthe mall, and we lost all cell

(17:29):
phone service immediately afterthat and basically they just
told us to run for our lives.
And then after that, I hadspent about a year and a half
working on security legislation,which became the ISPS
International Code, so I wasable to go over to IMO and see
legislation that was introducedin the United States and passed

(17:52):
in the United States become aninternational treaty.

Speaker 1 (17:55):
Yeah, oh, that's cool .
That's cool to kind of have itcome full circle.
I had a friend who um lived inArlington at the time and and um
was a police officer and so hewas over by the, the, the
Pentagon, and um, somebody gavehim a piece of what he he he's
pretty sure it was a piece ofthe plane.
Um, he's thank you very much,and he turns around and was like
what am I supposed to do withthis?

(18:15):
Yeah, it was a certainly a wildtime, but that well, that's
that's nice, that it was able tokind of come full circle and
you were able to implement somechange there.
But, yeah, no, so well, allright, well, let's, let's take
it to a lighter topic then.
So let's bring it back aroundto the Federal Maritime
Commission.
So, fast forward a little bit.

(18:36):
So you've been doing all thiswork in the House and the Senate
and working on the committeesand traveling internationally
and to Hawaii, I mean todomestic, one of the best
domestic locations in the US.
How did that align with the FMC?
You had said prior to gettingonto the committees, you were
talking to the chairman at thetime of the FMC.

(18:56):
But becoming a commissioner isa much different thing than,
obviously, being a staffer.
So what did that look like?
How did the 2019 nomination andeverything happen?

Speaker 2 (19:09):
So, you know, I actually got off after both of
my senators retired.
One remained and became thechairman, but I'd sort of run my
course.
I was tired of some of thechaos that frankly exists when
you work on Capitol Hill, and Itook a job of a large consulting
firm where I routinely workedon policies for both grassroots

(19:37):
and federal policies, as aprimary advisor in certain areas
, and so I was still workingwith the industry.
I represented, for instance,the National Association of
Waterfront Employers and theOwner Operator Independent
Drivers Association.
So I was still working in thecontext of legislating policy

(19:57):
issues, but on the other side ofthe equation, where I would go
in and I was hired to be intothe nitty gritty details of
legislation.
And so I did that for a periodof time.
And then I decided to go out onmy own and set up my own shop

(20:17):
and work together in a smallerboutique.
And after about 10 years of thatI was approached by friends who
were connected to the WhiteHouse who said this is sort of a
perfect opportunity for you toconsider whether you'd go back
to the government.
And at that point I wanted alittle sense of camaraderie, I

(20:41):
wanted to work together withfolks.
I wanted to make decisionsindependently, as opposed to
trying to effectuate and alterdecisions on policies, and so I
started the process of beingnominated that takes much more
than you'd ever think.

(21:01):
You have to go through theprocess of consideration by the
Senate and background checks andall sorts of things that take a
long time, and so I wasformally sworn in on December
7th in 2019.
I was formally sworn in onDecember 7th in 2019.
And two months later, two orthree months later, we had I

(21:22):
thought well, maybe I can playgolf on Fridays in this job and
get away a little bit.
And we had the the events ofthe pandemic, which really
stretched and affected everybodyin the United States, as we
suffered extreme congestion inthe maritime environment and

(21:44):
challenges getting you knowproduct into the United States.

Speaker 1 (21:49):
Yeah, that's right.
You know such an interestingtime 2019, being that you got to
see kind of pre-COVID FMC andthen you obviously now get to
experience during COVID andpost-COVID.
So you know the FMC has beenquite integral to some of the
key changes in the industry,particularly as the result of
some of the 2020-2021 COVIDcongestion years.

(22:09):
But I mean, you know thisshouldn't come as a surprise to
anyone who's been following theFMC.
The FMC kind of reviewed someof these contention points in a
2015 report, right.
So it was the US container portcongestion and related
international supply chainissues, causes, consequences and
challenges, where many of thosechallenges from 2021 were kind

(22:29):
of identified right in 2015.
Now, oftentimes people ask,well, why didn't the FMC act at
the time, right?
I always like to say I feellike the FMC prefers to take a
guardrail approach rather thanreally dive right into the weeds
and make specific requirements.
Because when guardrails areneeded, the FMC steps in and

(22:51):
that's what we've been seeing.
But when it gets to the nittygritty, the detail, specific
problems, it seems, at least inrecent memory, that the FMC kind
of prefers to take that caselaw approach.
And so, speaking of the newguardrails of the industry and
some of the things coming fromFMC 2020, 2021.
Covid congestion is the FMC'sfinal rule on detention and

(23:11):
demurrage billing practices.
It just became effective lastweek, right?
So what a key, pivotal momentfor the FMC and for the industry
as a whole.
Let's make sure everybody's onthe same page, right?
We often talk about that onthis podcast, but this new rule
46 CFR, part 541, definesbilling practices for detention
demurrage with the main purposeof simplifying and identifying,

(23:34):
as the FMC so kind of perfectlyput, what is being billed by
whom, and so the key takeawaysreally are clarity, timeliness,
that 30 calendar day requirement, dispute resolution filing and
attempted resolution for disputefilings, and that direct
contractual relationship beingone of the most interesting and

(23:55):
probably impactful pieces to thenew regulation.
So, now that the new rule hasbeen released and is effective,
are there any specific areas ofthat D&D final rule that you're
particularly happy with?
Are there any areas that youmight have wanted a deeper dive
or more specificity?
Or, you know, I like to say itused to be that you could kind

(24:16):
of write a number on a barnapkin and slide it across and
be like 2,000, that's your D&Dand they're like well, what Well
?
Like what time period, whatcontainer, what date, what year,
and now there's clarity to that.
So obviously huge strides madehere.
But is there anything elseright?
I mean between this and OSRA 22, there's a lot of clarity
provided to the industry.

Speaker 2 (24:38):
Yeah, no, it was apparent during the pandemic.
I mean, I contend, despite whatthe Fed does not recognize
conclusively is the connectionbetween supply and demand and
overseas supply chains and ourshipping industry and the

(25:01):
challenges that we have and oureconomy and inflation was
probably not the result of 300to 500 percent price increases
in shipping, but really thedelay in getting product through
the supply chain, where a shipthat was ordinarily carrying a
container from Shanghai toChicago in 35 days was taking

(25:24):
105 days, and that loss ofproduct and what it meant to
everybody.
I don't think still that peoplehave a good grasp of how
connected the supply chain isand how many components have to
be delivered in sequence to geta landed product, and that is a

(25:45):
challenge that we have as anation and we still don't
realize that.
And so the charges that we hadduring that timeframe we're
still calculating them, but Ithink we're at 12 billion during
the pandemic at the lastbriefing, that staff gave so a
huge amount.
And so we started down thispath as a result of some of the

(26:10):
investigations that had beendone previously Commissioner
Dye's fact, spac findings fromHanjin and even back to the
recession of 2007 and 2008.
And even before that.
There's been periods of time,but what I think has changed is

(26:33):
the size and the magnitude ofthe scope of our supply chain is
now to the point that we'recompletely reliant on
just-in-time services and asupply chain that's connected.
So we started and you said youknow, usually we look at
precedent and do these things.
We started considering the needfor standards for performance

(26:56):
and the billing of detention anddemurrage, first with guidance,
again suggested by CommissionerDye, and then refining that
guidance on what was the properway to apply the law, with steps
to say you have to do thesethings as you tender your

(27:17):
invoices for detention anddemurrage.
And then, finally, we had ASRA,which provided the final
guidance on how to implement,which are now the result of the
rule itself.
That's in effect, and I thoughtit was really important to get
that rule out to get somestability.

(27:40):
I do have some concerns as wego forward, how we're going to
reconcile certain portions ofthe rule resolved one way or

(28:03):
another, be it a refinement toregulation, be it case law,
precedent, cases that arebrought to us or some sort of
interpretation.
So I don't know.
But one of the primarychallenges I think we're going
to have is in the case of freetime in demerged charges.
So you get a little period oftime before demerge penalties to
pick up your cargo.

(28:23):
Carriers usually implementtheir demerge through a service
contract confidentially filed atthe FMC or on their tariff, and
terminals now are increasinglyassessing demerge as well.
Demerge is intended to be acharge to ensure that cargo is

(28:49):
moved fluidly.
It is discharged from theterminal quickly, rapidly after
a period of time.
So in my view it is terminalfunction because of their
control of the storage facilityitself, and they implement that
through their tariffs.
Their schedule that's on file,also as regulated by the FMC as

(29:14):
an implied contract.
So you essentially could havetwo different sources of
information for the same charge,and so we'll have to figure out
how that they could worktogether to reconcile it.
They may, they may not, I don'tknow.
So we're going to have someissues that we need to resolve,
because you basically have twoassessments that could be

(29:36):
different and they have to beaccurate, and so the question is
what is accurate in thatcontext?
The other issue I thinkoutstanding that needs some
clarity is the issue we did not,as you referenced, ino, that
they are are willing to and wantto discharge obligations to do

(30:23):
everything related to thatactivity.
But again, this is a situationwhere carriers and terminals
don't have the same information,so we could have issues arise
in that area.
So those are two areas I'mlooking at, because the facts
may generate different resultsin the implementation of an

(30:45):
accurate invoice in that case.
So we'll see.
Maybe the industry will gettogether and resolve it through
their own.
But but I think we'll we'llface some challenges on that and
that's not unusual, frankly,most regulatory issues it's
amazing how much they do impactpeople.

(31:07):
No one really understands untilit starts to impact folks.
But you just sort of sometimeshave to walk your way through
those issues.

Speaker 1 (31:18):
Yeah, and it was such a sweeping change, right.
I mean, like I said, it wentfrom this bar napkin to now
being, you know, veryprescriptive, which was which
was unique and I'd almost saypeculiar, that Congress went so
specific with the 13 invoicerequirements and then now the
FMC makes more sense, right,usually the agency has that
specificity with the, with thekind of 20 of 20 invoice

(31:38):
requirements and, right, that'scontainer number, that's you
know, very general stuff.
But still, usually that's notnecessarily found in the
congressional mandate and it'skind of deferred to the agency.
But, as you know, thesesweeping new rules, regulations
I appreciate the restraint itfeels like that the FMC also
exhibited here that you know,there wasn't a specific

(32:00):
definition of D&D listed.
There was kind of generalprinciples of what D&D is and
that seemed to kind of morph asit was going from the ANPRM, the
Advanced Notice of ProposedRulemaking, to then that Notice
of Proposed Rulemaking to thenthe final rule, kind of
specifically defining D&D, withalso kind of the thought of,

(32:21):
well, the incentive principle isstill at play, that's still
applicable law based on theinterpretive rule of May 18,
2020.
So there was still some hooks,but it wasn't necessarily
brought together in this rule.
But I guess, my point being Ido appreciate the restraint that
I saw on this final rule, inthat, look, we're making a lot
of changes here and the kind oftrend that I see of the FMC

(32:44):
saying we'd rather stay in theguardrails.
Let's see how this does in thewild and the case law can figure
it out.
And if we get too many, youknow, my impression is, if we
get too many cases alongsomething, then maybe then we
can revisit it and we can kindof create and provide clarity.
But otherwise there's going tobe so many scenarios and
hypotheticals that we just don'twant to dive down those rabbit

(33:05):
holes in the sweeping reg.

Speaker 2 (33:08):
You know it's a challenge to get consensus and
sometimes it's easier to dumbthings down a little bit and
then see how they'll work out.
In this case there will berefinements that have to occur.
I favor a bright line test ongetting a definition of what is

(33:28):
detention into merge.
Personally, I believe you knowthe nature of billing is very
tricky in the maritimeenvironment.
Everybody calls somethingslightly different.
I have sometimes I have peoplecall detention per diem and I'm
like no, per diem is the chargeon chassis on a daily basis and

(33:49):
detention is what you pay whenyou don't get your chassis back
to return it.
And earliest receiving date,earliest return date
discrepancies in these thingsand that's one of the reasons I
believe we need to do somethingon maritime transportation data
to harmonize these definitions.
So everyone's working off thesame page of what the rules

(34:12):
should be.
I have faith that if you canget a little clarity in these
things, it's going to resolve somuch of the uncertainty in
operations and performance andcreate a better working
environment.
I mean, I sense right now justsome great frustration arising

(34:33):
from the pandemic, from the BCOand shipper user community and
the carrier and the terminalcommunities and the carrier and
the terminal communities, and soI think avoiding those
situations in the future will behelpful for all parties.
You know it's a tighteningmarket.
There's less.
I started there was 27 carriersinternationally providing

(34:56):
global services.
Now there's nine or 10.

Speaker 1 (35:01):
Yeah, it certainly has changed through the years,
but that's a great transition.
Let's talk about the datadiscussion, right, you've done
some great work in this areawith the Maritime Transportation
Data Initiative and I want tostop and take a minute to
commend you, above anything else, for bringing this conversation
to the masses, right, just theexistence of the MTDI discussion
and the conversations that thishas initiated in the industry,

(35:24):
in my view, makes the MTDIalready a huge success.
I mean, you've worked throughthe stakeholder engagements,
you've really started a wave ofdiscussions and I'm not even
trying to be overly boastfulhere, but I mean this is such
great movement that's beencreated through just the
starting of let's talk aboutmaritime transportation data,
let's talk about how it'sdisseminated, let's talk about

(35:46):
how it's moved, but just thatstarting of that conversation
and the stakeholder engagementsand the wave of discussions that
I really don't think would havebeen otherwise as focused or as
purposeful, so yeah, so let'stalk about kind of the impetus
there, right?
So why did you and you know inpart Chairman Dan Maffei at the
time feel like this initiativewas important and really needed

(36:09):
to be undertaken?

Speaker 2 (36:10):
Really it's the result of the pandemic.
I think I visited almost, youknow, 10 or 15 ports during that
timeframe.
It was clear after talking tofolks that there wasn't, at the
very least, good informationbeing disseminated.
In fact, it was faultyinformation related to the

(36:34):
services that would be provided.
And, you know, ships were notshowing up on time and if they
were canceling or blankingsailings, they weren't providing
notice to people.
Cargo was piling up at ports,policies were not clear on when
cargo could be picked up andtaken from a terminal, because

(36:56):
there was no harmonization ofthe standards of information.
And so it was really clear tome and it was really clear that
this was an economic issue thathad macro impact.
And I say I was in Salt LakeCity meeting with shippers and I
was talking to home builders.
They said they planned to build205,000 residential units in

(37:19):
the Salt Lake City but only beenable to complete 140,000,
excuse me, 205,000 residentialunits in the Salt Lake City, but
only been able to complete140,000 of those units during
2021, because they weren'tgetting the components and the
fixtures and the product thatthey needed in the sequence they
needed to complete.
I thought that's one third andif you translate that across the

(37:39):
economy you get inflation, andso to me, the confluence of
these two issues where you werenot getting information about
shipments clearly meant to methat there was no ability to
adjust.
It was like watching a trainwreck.
You sit there and watch carafter car pile up, car after car

(38:00):
pile up, and so so, soefficiency dictates that we have
a schedule that is accurate.
Is a genius Einstein.

(38:33):
I was talking to some of thecompanies that are engaged in
trying to provide maritimeassessments and information, and
these companies were telling meEEC and some of the companies
that provide services in thisarea that are sea-based in
Rotterdam that 60% of theemployment was used to
independently verify theveracity of information that

(38:55):
they were trying to check.
I said it's almost the oppositeof technology.
So we're not harnessingtechnology, we're harnessing
people to actually updatetechnology so you can get some
level of information.
So it was clear that we neededstandards of information that
would allow real-timeinformation on schedules of

(39:17):
services, on the whereabouts ofservice vessel services, etas
and harmonization to allow theprocess at terminals to be the
same everywhere.
So not getting into the issueson cargo itself, but setting a
template that could allowtechnology to occur uh to occur.

(39:40):
So what, dan?
Uh, chairman Maffei and Italked uh gosh, I can't even
remember the date but uh, uh,but uh.
A while back and we uh, heconcluded uh that, that, uh,
that I should go ahead and start, uh the process which became
the maritime transportation datainitiative, which uh culminated

(40:01):
in weekly meetings with allsegments of the industry
carriers, terminals, bcos,integrators, longshoremen,
railroad employees, trucking, asmany as we could get.
We had 83 participants, mostlyfrom the IT segment of the

(40:21):
industries, to discuss theinformation that they had, the
information that they'd like tohave, differences in export and
import and the format and thecontent of that information.
And we asked the same questionsto all of them and we did a
summit where we invited all ofthem back again and I issued a

(40:44):
report with recommendationswhich are currently pending
right now supply chain andharmonize requirements at
terminals so that the sameterminology would be imposed on

(41:05):
all of the movements through theterminals.
So we're still in process.
We issued a request forinformation and a second set of
requests for information andwe're digesting those comments
right now.
The first set were generallyabout the need for and the

(41:29):
challenges of relying, withcomments about some of the
recommendations.
It's available at wwwfmcgov andthere's a section on the

(41:55):
maritime transportation datathat will allow you to get a
copy of weeks left on RFI 2, andthat is trying to get at the
specific recommendations alittle bit earlier.
For instance, I recommendestablishing a five-day earliest
receiving date for export cargoso that each port, each berth,

(42:19):
would report five days out allof the vessels that would be
taking export cargo from thatberth to give notice, and that
would be predicated on receivinginformation from the ocean
carrier about when they weregoing to be arriving and that
information would be updated soit would be real-time estimated
arrivals.
So that's the recommendation.

(42:41):
The recommendation is theyshould have five days of
delivery provision.
So I want to hear from thepublic about that.
I want to hear we require wedon't look at cargo per se, but
we set standards for how cargowould be described at the
terminal.
So, for instance, availablewould be that the ocean carrier

(43:03):
had cleared cargo, cleared thecargo, so there was no legal
impediments.
The terminal had cleared thecargo and it was physically
capable of being moved, meaningyou could pick up the cargo if
you arrived there.
So I want to hear from thepublic whether or not these are
the right standards, and so Iurge your listeners to go

(43:23):
forward with some comments.

Speaker 1 (43:27):
Sorry.
So this request for information, this RFI number two, right.
So these questions, like you'resaying, are drilling down a
little further.
They're seeking the clarity onthe vessel schedules and how
changes are communicated, thecommunications around changes to
a container pickup and drop off, like you're saying,
impediments to containertransfers, right, is the
equipment, is the chassisavailable?

(43:48):
And then you also have an openquestion of any other data
points that are not clearlydefined or missing.
So that's due.
Those comments are due June14th, so one week from the
airing of this podcast.
So you know, you got such greatfeedback on the RFI-1, the
Request for Information-1, thathopefully the industry really
sees these opportunities forcomments as the open

(44:10):
conversation from the federalagency asking for, you know,
feedback, right, this is yousaying we would like to hear
from the industry, we want toregulate with you or we want to
be part of the conversation withyou here, and so that's what
this RFI really is doing.
But you know, I want to pull itback a little bit here because
so often the MTDI initiative anda similar program, flow, are

(44:38):
kind of confused, right, and soI want to talk a little bit
about that, right.
So let's drill it down.
So Flow from their website isthe Freight Logistics
Optimization Works.
It's a public-privatepartnership among industry and
government to build aforward-looking integrated view
of supply chain conditions inthe US and it collects purchase
order information from importersin addition to logistics,

(45:01):
supply, demand and throughputdata from participants and it's
housed under the US Departmentof Transportation where they
then take that data, anonymizeit regional segments and
aggregates the data and then theparticipants of flow receive
flow data that provides broad,daily view of the current
conditions of the overalllogistics network.
So that's, I mean, very like wereceive the data, we translate

(45:24):
it and then we push it back out,which that's different than the
MTDI, right?
The MTDI is much more of alarger idea in that it's not
trying to get into the specificdata collection, right?
Instead, the MTDI is reallyfocusing on those three
initiatives of what it was firststarted on, which was the

(45:45):
cataloging, the status quo ofmaritime data elements, metrics,
transmissions and access,identifying key gaps in data
definitions and classifications,and then developing
recommendations for common datastandards and access policies
and protocols.
So I mean, ultimately, right,you're not collecting any data,
but can you kind of helpilluminate some of the
differences between flow andMTDI and you know why they

(46:08):
shouldn't be confused as thesame initiative.

Speaker 2 (46:11):
So flow is more of a prototype on how you can share
information.
I think what the MTDI isgetting to is the quality of
data that's being shared.
Pdi is getting to is this isthe quality of data that's being
shared, and so setting astandard on the quality of data
that's shared.
Garbage in is garbage out, so.
So if someone is sharinginformation that doesn't reflect

(46:33):
their schedule per se, forinstance, or real time estimated
arrivals, you can still sharethe information and that has
some value.
But until you get at thequality of information and make
sure it's better, it really.
And so what we're looking at isthe foundational pieces for

(46:53):
providing better information onshipping, which could be, in
turn, used by programs verycomplimentary, in fact, by the
information sharing, thevoluntary information sharing
that's done under flow.
So we're looking really at thequality of information and
establishing standards for that,and really it's real-time

(47:16):
decision-making.
If you break it down to themost basic, you can see a dot on
the map with a ship, but thatdoesn't tell you anything and
you really need to have anoperational person tell you,
based on an estimated arrival,based on communications with the

(47:39):
birthing, when they're going toarrive and where they are in
their journey.
So we are proposing a track andtrace methodology to allow
vessels, vessel services, to betransmitted in real time with

(48:01):
intelligence from the operatorbehind in a coming to a ETA and
then the lexicon itself, youknow, harmonizing these
terminologies.
One of the things we recommendis that all information at
terminals be posted 12 pm theday in advance of the next day

(48:21):
of business, and it seems simple, but it doesn't always happen,
and so you have people showingup at ports, waiting for two
hours and being told that theyhave to have a two-way cargo in
order to come into the terminalthat day, or that they weren't
receiving empties because theydon't have room, and so this

(48:43):
sort of information should beharmonized.
It'll save so much in terms ofefficiency, environmental
protections, on emissions, andso it's really nuts and bolts,
block tackling sort of stuffthat needs to be done in order
to allow some of these otherprograms to be effective.

(49:07):
So if you have an exchange ofdata and the data is still not
real time or is subjective, oryou have to independently check
every time you use the datawhether there's been something
that's been changed on your own,it's not really good data, and
so.
So what the MTDI attempts to dois to remedy the quality of

(49:28):
data that's provided and andharmonize the terminology to to
be imposed, but it does not getinto cargo.
I mean, I talked to ourlongshoremen who thought this
would be used as a situationwhere we get involved in metrics
, and that it does not do that.

(49:48):
It only establishes amethodology for characterizing
cargo while in the terminal andthen the industry's obligation
is to use those terms to pick upand discharge cargo more
efficiently, and we did not wantto get into cargo assessment

(50:08):
per se some of this informationon that if DOT wants to collect
that information on a voluntarybasis.
But at the FMC we holdconfidential information related
to cargo shipments, and so thatwould be the policy going
forward that I would recommend.

Speaker 1 (50:29):
Great.
Well, thank you very much.
I mean, if we can all kind ofget on the same page, at least
right, and if we can all bespeaking the same language,
that's, that's something that'sit has potential to change the
industry.

Speaker 2 (50:39):
It has potential to change the industry.
Yeah, I think so.
So you know we're going to.
We have a couple of more thingsthat I want to get done to
fully vet this.
So I'm glad we're doing yourpodcast today so we can get this
out there.
But I feel like we should havea debate to make sure everybody
is comfortable with what isbeing suggested.

(51:00):
Everybody is comfortable withwhat is being suggested.
I personally feel that we'reprobably going to have to go to
some standards on theinformation side and some
recommendations on how tocoordinate policies and reports
on a voluntary basis as acombined way to get better
information.

Speaker 1 (51:17):
Sure, Well, certainly the RFI is a great way to
engage in that conversation andreminder to all the listeners
that the RFI number two closeson June 14th, so get those in.
It's on regulationsgov, but youcan certainly find the link.
I'll put it in the show noteshere, but you can find the link
through the FMC's MTDI landingpage.

(51:38):
It's on the homepage, it's downat the kind of bottom scroller.
You can see MTDI down there.
But again, we want to thank youfor your time today.
You've been more than generouswith your time talking to me
today and I really appreciatethe conversation.
And again, thank you,commissioner Carl Bensel, for
joining.

Speaker 2 (51:54):
You know it's always a pleasure, Lauren.
I like to talk about thepolicies surrounding what we do
at the FMC and general maritimepolicy issues, so it's good to
have a good questioner asking onissues that she cares about.
So I appreciate it.

Speaker 1 (52:11):
Well, that's true, I am definitely an FMC nerd,
having worked there previouslyand just being an enthusiast
generally.
So thank you again.
Hopefully we'll have you back.
Maybe we'll do a follow-up onMTDI or a follow-up on the D&D
how it's going and what youthink about it but thank you
again for joining us today.

Speaker 2 (52:28):
Always willing to do it.

Speaker 1 (52:31):
So, as always, the guidance here is general, for
educational purposes.
It should not be construed tobe legal advice directly related
to your matter.
If you need an attorney,contact an attorney, but if you
do have specific legal questions, feel free to reach out to me
at my legal company, smallStrategies.
We appreciate the conversationwith Commissioner Carl Bensel
today.
We covered quite a bit, but forthe non-legal questions, for
the e-learning and generalindustry information and

(52:53):
insights, come find me at theMaritime Professor.
If you like these videos, letme know, comment, like and share
.
If you want to listen to theseepisodes on demand, or if you
missed any previous episodes,check out the podcast by Land
and by Sea.
If you prefer to see the videos, they live on my YouTube page
by Land and by Sea presented bythe Maritime Professor, and
while you're at it, check outthe website
themaritimeprofessorcom.
So until next week.

(53:13):
This is Lauren Began, theMaritime Professor, and you've
just listened to by Land and bySea.
See you next time.
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