Two Hundred Thousand Dollars a Voyage

The Federal Maritime Commission on Thursday 15 October proposed a fee of $200,000 on every voyage a Spanish-flagged ship makes into an American port, and limits on five categories of Spanish goods, among them olive oil, ceramic tiles and perfume. The notice of proposed rulemaking, published in the Federal Register at 91 FR 65515, closes an investigation the Commission opened in December 2024 into Spain’s refusal to let certain ships dock. Comments are due by 14 December.

The ships in question carry cargo for the United States government. They are enrolled in the Maritime Security Program, under which the Maritime Administration keeps American-flagged commercial vessels available to serve as military auxiliaries in a national emergency. The Commission’s record says Spain refused port access to three of them in November 2024 on the grounds that they were carrying cargo bound for or coming from Israel.

The defence the statute does not allow

Spain answered the Commission’s first notice, in December 2024, with four arguments: the Commission cannot compel a sovereign to take part, it has no jurisdiction over Spain, the proper channel is the Secretary of State, and Spain is bound by Spanish, European Union and international law to stop defence and dual-use goods transiting its ports and applies that rule without discrimination.

The Commission accepts the first point and turns the others aside on the wording of the statute. Section 42101 of Title 46 directs it to meet conditions unfavourable to shipping that “arise out of or result from laws or regulations of a foreign country.” From that phrase the notice concludes that “Chapter 421 presupposes that Spain’s actions are consistent with its laws and regulations.” Lawfulness at home is not a defence, because the statute is written for lawful acts. The question the Commission says it is asking is whether the conditions are unfavourable to American shipping, not whether Spain was entitled to create them.

On diplomacy, the notice concedes that a negotiated settlement may end the matter and that “Spain is uniquely positioned to make that occur.” It says the Commission can rescind any final remedy once that happens, but “does not intend to delay the proposed remedies based on a hypothetical solution.”

The same reasoning disposes of most of the public file. The December 2024 notice drew more than 8,000 comments, many of them, the Commission says, arguing about Israel, arms and human rights, which it treats as outside the scope of an inquiry into “the reliability and efficiency of the U.S. ocean shipping supply chain.” A second notice, in December 2025, drew one comment, which asked the National Oceanic and Atmospheric Administration to approve a fishery disaster declaration.

What the record shows

The public evidence is vessel tracking. According to the notice, the Maersk Seletar and the Maersk Denver signalled Algeciras as their destination in early November 2024, changed course mid-Atlantic and docked at Tangier in Morocco instead; a third ship, the Maersk Hartford, rerouted the same way later that month. Before November 2024, the American-flagged fleet of Maersk Line Limited, all of it enrolled in the programme, made an average of 7.25 calls a month at Spanish ports. The Commission counts six visits across 2026. Its calls at Tangier now average 4.17 a month.

The rest of the evidence is not public. The notice says the Commission ordered information supplied under oath and received material from other agencies, and that the statute bars disclosing either. It also records that it considered, and rejected, an alternative explanation that Spain never offered: that the European Union’s emissions trading system, which took effect around the same time, made Spanish calls less attractive. The parent company’s other ships still call at Algeciras, the Commission notes, while the American-flagged ones do not.

The remedies

The fee has a precedent. In 1997 the Commission imposed $100,000 per voyage on vessels operated by Japanese carriers in a dispute over harbour services, a remedy the notice credits with producing “a bilateral resolution.” It describes $200,000 as “the approximate adjustment for inflation between 1997 and 2026.” It also acknowledges that “there are relatively few Spanish-flagged vessels that call at U.S. ports,” and that the fee “alone will not fully meet or adjust the unfavorable conditions.”

The weight sits on the import limits, a trade power that Chapters 421 and 423 of Title 46 delegate to the Commission by statute. The proposed rule lists five chapters of the Harmonized Tariff Schedule. By the Commission’s 2025 figures, imports from Spain were $1.15 billion in oils and fats, $836.9 million of it olive oil; nearly $940 million in perfumery and cosmetics; $634.7 million in ceramics, $523.7 million of it tiles; $270.6 million in articles of stone; and $138.8 million in sugar and confectionery. Together that is about $3.1 billion, this publication’s arithmetic from the notice’s figures. The only two six-digit categories of Spanish imports to exceed $1 billion between 2023 and 2025, packaged medicines and power converters, are left out, the notice says, because of their link to Americans’ health and to “an ongoing transformer shortage.” The Commission says it may in the end limit all of the listed chapters, some of them or narrower categories.

Enforcement runs through the Department of Homeland Security. Under the draft text, the Commission may ask the Secretary to refuse clearance to a Spanish ship that does not pay, and to deny entry to or detain any vessel, under any flag, that carries the listed goods. A further paragraph provides that if Spain retaliates against American carriers or shippers, the fee “shall be increased” and more chapters of goods added.

The second statute and the hearing

The investigation began under Chapter 421, which concerns conditions in American foreign trade. The notice adds a second ground: section 41108(d), which covers a foreign government that impairs American-flagged ships’ access to trade between foreign ports, here cargo between Spain and third countries. That section allows remedies only after notice and an opportunity for a hearing, and the Commission says it has not yet offered one. The notice is the offer. Spain may request a hearing by contacting the Commission’s secretary.

The Commission also says it did not have to ask for comment at all. Its analysis states that notice-and-comment procedures “are not required” because the rule falls within the Administrative Procedure Act’s exception for foreign affairs functions, which also exempts it from interagency review under Executive Order 12866, and that it is “voluntarily electing” to take comments. The notice is signed by the Commission’s secretary, David Eng, and does not record how the commissioners voted. This publication found no public response from the Spanish government to Thursday’s notice by the time of publication.

The document asking the public for its views refers to itself, in that same paragraph, as “this final rule.”