President Biden signed a wide ranging executive order promoting competition in the American economy that will affect everything from airline luggage fees to non-compete clauses. The order sets the stage for departments and agencies to begin drafting and implementing new rules and regulations in the months ahead. Rail and maritime are two such industries where executive order changes are expected to have a major impact.

For the Surface Transportation Board, the order encourages the Board to:

Issue a rule that makes reciprocal switching accessible to captive shippers. This is a clear request for the Board to focus on issuing a final rule in EP 711.

Consider rulemakings that would promote competitive access, including by addressing bottleneck rates and interchange commitments. There is not much detail on this in the order, but a clear focus is limiting bottleneck protections (i.e., allowing shippers to select where carriers interchange their traffic).

When reviewing a railroad sale or merger, consider whether the carriers fulfill their obligations to allow Amtrak to use their facilities. This could have significant implications for the proposed CN-KCS merger. Amtrak has specifically voiced concerns about CN’s proposed divestiture of the KCS line between Baton Rouge and New Orleans. According to Amtrak, the plan—which would provide CN trackage rights on the line—would increase operational complexity and deprive Amtrak of capacity on the line. It’s not clear whether this issue is significant enough to threaten the merger, but it may put pressure on CN to consider alternatives to divesting the Baton Rouge Line.

For the Federal Maritime Commission, it encourages the Commission to take additional actions to curtail unjust and unreasonable detention and demurrage practices, including by:

Vigorously enforcing the Shipping Act prohibition on unjust and unreasonable demurrage and detention practices in accordance with the FMC’s recent interpretive rule on demurrage and detention.

Requesting recommendations from the National Shipper Advisory Committee for improving detention and demurrage practices and enforcement against unjust and unreasonable practices.

Adopting additional rules to improve detention and demurrage practices and strengthen enforcement of related Shipping Act prohibitions.

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