The Federal Maritime Commission (FMC) issued an Advance Notice of Proposed Rulemaking (ANPRM), seeking comments from the trade (public) whether they should require common carriers and marine terminal operators to include certain minimum information with regards to demurrage and detention billings.
The Commission initiated the ANPRM on Demurrage and Detention Billing Requirements (Docket No. 22-04) last month to gauge if a new rule governing demurrage and detention billing practices would benefit the trade and should apply to marine terminal operators and non-vessel-operating common carriers in addition to vessel-operating common carriers.
The ANPRM was issued in response to information developed by Commissioner Rebecca F. Dye as part of her work leading Fact Finding 29. In July 2021, she identified issuing an ANPRM on these topics as one of the Interim Recommendations provided to the Commission on how the agency can address complaints and issues related to demurrage and detention.
The FMC gave the public time till the 17th of March 2022 to submit comments, but the deadline has now been extended by an additional 30-days. Interested parties now have until April 16, 2022, to file comments with the Commission.
The full details on the submission are available here on the FMC Website. For your convenience, below are the questions posed by the FMC for comments.
- Should the Commission include both VOCCs and NVOCCs in a proposed regulation on demurrage and detention billing?
- Should the Commission include MTOs in a proposed demurrage billing regulation?
- Should a proposed demurrage billing regulation distinguish between the demurrage MTOs charge to shippers and the demurrage MTOs charge to VOCCs? That is, should the Commission regulate the format in which MTOs bill VOCCs?
- What percentage of demurrage and detention bills contain inaccurate information, and which information is most often disputed?
- How much does the type of information included on or with demurrage and detention billings vary among common carriers, among marine terminal operators, and between VOCCs and NVOCCs?
- What type of information should be required on billings? Should the Commission require certain essential information included on invoices such as:
- Bill of lading number
- Container number
- Billing date
- Payment due date
- Start/end of free time
- Start/end of demurrage/detention/per diem clock
- Demurrage/detention/per diem rate schedule
- Location of the notice of the charge (i.e.., tariff, service contract number and section or MTO schedule)
- For import shipments:
- Vessel arrival date
- Container availability date
- For export shipments:
- Earliest return date, including identifying any modifications to the earliest return date
- Any intervening clock-stopping events, for example:
- Unavailability of container
- Unavailability of pickup or return locations
- Unavailability of appointments (where applicable)
- Restrictions on chassis accepted
- Force majeure-related events
- Please note if any portion of the charge is a pass-through of charges levied by the MTO or Port.
- What information or timeframes should be required for VOCC and NVOCC demurrage and detention bills? Should the Commission require different types of information or timeframes?
- Do common carriers invoice multiple parties for demurrage and/or detention charges? If multiple parties are invoiced for charges, should the billing party be required to identify all such parties receiving an invoice for the charges at issue?
- Should the billing party be required to identify the basis of why the invoiced party is the proper party in interest and therefore liable for the charges? (i.e., as shipper, consignee, beneficial cargo owner, motor carrier or an agent, or as a party acting on behalf of another party pursuant to the common carrier’s merchant clause in its bill of lading.
- Should the Commission, for purposes of clarity and visibility of charges, require MTOs to bill demurrage directly to shippers (rather than billing VOCCs who then bill shippers for demurrage)? In that scenario, MTOs would bill shippers directly for demurrage, and carriers would continue to bill detention to shippers.
- How long from the point of accrual of a demurrage or detention charge does it typically take to receive a demurrage or detention invoice or billing?
- Should the Commission require demurrage and detention invoices to be issued within 60 days of date when the detention/demurrage/per diem stops accruing?
- Should the Commission require specific information be included on the invoice regarding how to dispute a charge? If so, what information should be required? For example, should the Commission require invoices to include contact information for disputing charges, identify circumstances for when a charge may be waived, or identify the billing parties’ evidentiary requirements sufficient to support a waiver of the charges?
- How long from the point of dismissal of a charge does it typically take to receive a refund? Should the Commission require that refunds of demurrage or detention bills be issued within a certain time period and what should that timeframe be?
- How would a regulation on demurrage and detention billing requirements impact, conflict with, or preempt any other applicable laws, regulations, or arrangements (such as the UIIA)?
- Please provide any other views or data you believe would help inform the Commission’s decision whether to pursue a proposed regulation on demurrage and detention billing information and practices
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