DND Federal Register NPRM

Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / Proposed Rules
disseminating information to transit
fleets, and enforcement (including
auditing reported information, and site
visits to confirm vehicle equipment).25
As such, we find that CARB has
adequate personnel and funding for the
ICT regulation.
6. EPA’s Regulation Evaluation
Conclusion
Based on the above discussion, we
believe these regulations are consistent
with the relevant CAA requirements,
policies and guidance.
C. The EPA’s Recommendations To
Further Improve the Rules
Several of the defined terms in the
ICT regulation reference definitions set
forth in paragraphs of other CCR
sections that have been renumbered
since the ICT regulation was adopted.
The cross-references should be updated
when CARB next considers
amendments to the ICT regulation. The
specific defined terms with the outdated
CCR references include: (1) the term
‘‘compressed natural gas (CNG),’’ which
should be updated to cite 17 CCR
95481(a)(30) rather than 17 CCR
95481(a)(27); (2) the term ‘‘renewable
hydrocarbon diesel,’’ which should be
updated to cite 17 CCR 95481(a)(130)
rather than 17 CCR 95481(a)(123); and
(3) the term ‘‘biomethane,’’ which
should be updated to cite 17 CCR
95481(a)(22) rather than 17 CCR
95481(a)(20).

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D. Public Comment and Proposed
Action
As authorized in section 110(k)(3) of
the Act, the EPA proposes to fully
approve the submitted ICT regulation
because it fulfills all relevant
requirements. We will accept comments
from the public on this proposal until
November 14, 2022. If we take final
action to approve the submitted ICT
regulation, our final action will
incorporate the associated rules into the
federally enforceable SIP.
III. Incorporation by Reference
In this rule, the EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, the EPA is
proposing to incorporate by reference
the California rules listed in tables 1 and
2 and discussed in Section I of this
preamble. The EPA has made, and will
continue to make, these materials
available through https://
www.regulations.gov and at the EPA
Region IX Office (please contact the
25 CARB’s

ICT Staff Report, page VIII–28.

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person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely proposes to approve state
law as meeting Federal requirements
and does not impose additional
requirements beyond those imposed by
state law. For that reason, this proposed
action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where the EPA or
an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the proposed rule does
not have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).

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The Innovative Clean Transit
regulation furthers state environmental
justice goals by transitioning to clean
transportation modes in low-income
and disadvantaged communities. There
is no information in the record
inconsistent with the stated goals of
E.O. 12898 of achieving environmental
justice for people of color, low-income
populations, and indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 3, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022–21910 Filed 10–13–22; 8:45 am]
BILLING CODE 6560–50–P

FEDERAL MARITIME COMMISSION
46 CFR Part 541
[Docket No. FMC–2022–0066]
RIN 3072–AC90

Demurrage and Detention Billing
Requirements
Federal Maritime Commission.
Notice of proposed rulemaking.

AGENCY:
ACTION:

The Federal Maritime
Commission (Commission) is seeking
public comment on a proposed rule that
requires common carriers and marine
terminal operators to include specific
minimum information on demurrage
and detention invoices and outlines
certain billing practices relevant to
appropriate timeframes for issuing
invoices, disputing charges with the
billing party, and resolving such
disputes. The proposed rule addresses
considerations identified in the Ocean
Shipping Reform Act of 2022. The
proposed rule would adopt minimum
information that common carriers must
include in a demurrage or detention
invoice; add to this list additional
information that must be included in or
with a demurrage or detention invoice;
further define prohibited practices by
clarifying which parties may be
appropriately billed for demurrage or
detention charges; and establish billing
practices that billing parties must follow
when invoicing for demurrage or
detention charges.
DATES: Submit comments on or before
December 13, 2022.
SUMMARY:

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Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / Proposed Rules

You may submit comments
by using the Federal eRulemaking Portal
at www.regulations.gov, under Docket
No. FMC–2022–0066, Demurrage and
Detention Billing Requirements. Please
refer to the ‘‘Public Participation’’
heading under the SUPPLEMENTARY
INFORMATION section of this notice for
detailed instructions on how to submit
comments, including instructions on
how to request confidential treatment
and additional information on the
rulemaking process.
FOR FURTHER INFORMATION CONTACT:
William Cody, Secretary; Phone: (202)
523–5908; Email: [email protected].
SUPPLEMENTARY INFORMATION:
ADDRESSES:

Table of Contents
I. Introduction and Background
II. Summary of Comments
III. Ocean Shipping Reform Act of 2022
IV. Discussion of Proposed Rule
A. General Provisions
1. Purpose of Rule
2. Scope and Applicability
3. Definitions
4. Properly Issued Invoices
B. Required Billing Information
1. Identifying Information
2. Timing Information
3. Rate Information
4. Dispute Information
5. Certifications
C. Billing Practices
1. 30-Day Timeframe To Issue Demurrage
or Detention Invoices
2. Timeframes for Disputing Charges and
Resolving Disputes
V. Public Participation
VI. Rulemaking Analyses

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I. Introduction and Background
As rising cargo volumes have
increasingly put pressure on common
carrier, port and terminal performance,
demurrage and detention charges have
for a variety of reasons substantially
increased. For example, over a two-year
period between 2020 and 2022, nine of
the largest carriers serving the U.S. liner
trades individually charged a total of
approximately $8.9 billion in demurrage
and detention charges and collected
roughly $6.9 billion.1 On July 28, 2021,
Commissioner Rebecca F. Dye, the Fact
Finding Officer for Fact Finding
Investigation No. 29, International
Ocean Transportation Supply Chain
Engagement (Fact Finding No. 29),
recommended, among other things, that
the Commission ‘‘[i]ssue an [Advance
Notice of Proposed Rulemaking
(ANPRM)] seeking industry input on
whether the Commission should require
1 Fed. Mar. Comm’n, Detention and Demurrage
(accessed on September 8, 2022), https://
www.fmc.gov/detention-and-demurrage/
#:∼:text=In%20dollar%20terms%2C%20the
%20nine,over%20the%20two%2Dyear%20period.

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common carriers 2 and marine terminal
operators (MTOs) to include certain
minimum information on or with
demurrage and detention billings and
adhere to certain practices regarding the
timing of demurrage and detention
billings.’’ 3 The Fact Finding Officer
expressed concern about certain
demurrage and detention billing
practices and a need to ensure that it is
clear to shippers ‘‘what is being billed
by whom’’ so that they can understand
the charges.4 The Commission approved
this Fact Finding 29 recommendation
on September 15, 2021.5
On February 15, 2022, the
Commission issued an ANPRM to
request industry views on potential
demurrage and detention billing
requirements.6 Specifically, the
Commission requested comments on
whether a proposed regulation on
demurrage and detention billing
practices should apply to non-vesseloperating common carriers (NVOCCs) as
well as vessel-operating common
carriers (VOCCs), and whether the
regulations should differ based on
whether the billing party is a NVOCC or
a VOCC.7 The Commission also
requested comments on whether
proposed regulations on demurrage and
detention billings should apply to
MTOs.8
In addition to requesting comments
regarding the applicability of demurrage
and detention billing requirements to
parties such as NVOCCs and MTOs, the
Commission also requested comments
on what information should be required
in demurrage and detention invoices.9
In addition to information necessary to
identify the shipment (bill of lading
number, container number, etc.), the
Commission asked whether bills should
include information on how the billing
party calculated demurrage and
detention charges.10 For example, the
2 There are two types of common carriers—vesseloperating common carriers, also called ocean
common carriers, and non-vessel-operating
common carriers. 46 U.S.C. 40102(7), (17), (18).
3 See Fact Finding Investigation No. 29, Interim
Recommendations at 6 (July 28, 2021) (Fact Finding
29 Interim Recommendations), available at: https://
www2.fmc.gov/ReadingRoom/docs/FFno29/
FF29%20Interim%20Recommendations.pdf/.
4 Fact Finding 29 Interim Recommendations at 7.
5 Fed. Mar. Comm’n, Press Release, FMC to Issue
Guidance on Complaint Proceedings and Seek
Comments on Demurrage and Detention Billings
(Sept. 15, 2021), https://www.fmc.gov/fmc-to-issueguidance-on-complaint-proceedings-and-seekcomments-ondemurrage-and-detention-billings/.
6 Advance Notice of Proposed Rulemaking on
Demurrage and Detention Billing Requirements, 87
FR 8506 (Feb. 15, 2022). See Docket No. 22–04,
Demurrage and Detention Billing Requirements.
7 87 FR at 8507, 8508–8509 (Questions 1 and 7).
8 87 FR at 8507, 8509 (Questions 2 and 3).
9 87 FR at 8508.
10 87 FR at 8508.

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Commission requested comments on
whether it should require the billing
party to include the following
information: identifying clear and
concise container availability dates in
addition to vessel arrival dates for
import shipments; and, for export
shipments, the earliest return dates (and
any modifications to those dates) as well
as the availability of return locations
and appointments, where applicable.11
The Commission also requested
comments on whether the bills should
include information on any events (e.g.,
container unavailability, lack of return
locations, appointments, or other forcemajeure reasons) that would justify
stopping the clock on charges.12
In the ANPRM, the Commission
stated that it was considering whether it
should require common carriers and
MTOs to adhere to certain practices
regarding the timing of demurrage and
detention billings. The Commission
sought comments on whether the
Commission should require billing
parties to issue demurrage or detention
invoices within 60 days after the
charges stopped accruing.13 The
Commission stated that the Uniform
Intermodal Interchange Agreement
(UIIA) 14 on which the industry relies
currently requires that invoices be
issued within 60 days and asked
whether the 60-day timeframe was
effective in addressing concerns raised
by billing parties, or whether a longer or
shorter time period would be more
appropriate.15 In addition, the
Commission requested comments on
whether it should regulate the
timeframe for refunds and, if so, what
would be an appropriate timeframe.16
II. Summary of Comments
A. General Summary
The Commission received 82
comments in response to the ANPRM
from 81 commenters.17 The commenters
represent the following interest groups:
11 87

FR at 8509 (Question 6).
FR at 8509 (Question 6).
13 87 FR at 8508, 8509 (Question 12).
14 The UIIA is a standard industry contract that
provides rules for the interchange of equipment
between motor carriers and equipment providers,
such as VOCCs. Participation is voluntary.
15 87 FR at 8508.
16 87 FR at 8508, 8509 (Question 14).
17 The Commission received two comments from
the Los Angeles Customs Brokers and Freight
Forwarders Association (LACBFFA) filed on April
15, 2022 and April 22, 2022. The comments filed
on April 22, 2022, incorporated a new section, ‘‘5.
Multiple Parties and Invoiced Party Identity,’’ into
the comments that LACBFFA filed on April 15,
2022. Compare Comments of the Los Angeles
Customs Brokers and Freight Forwarders
Association (Doc. No. 57) at 3 with Comments of the
Los Angeles Customs Brokers and Freight
Forwarders Association (Doc. No. 83) at 3–4.
12 87

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Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / Proposed Rules
VOCCs; MTOs; NVOCCs, freight
forwarders, and customs brokers; motor
carriers; and beneficial cargo owners
(BCOs). The Commission also received
comments from five entities with
unknown affiliations, and three other
commenters that did not fit into the
above categories.18 Comments from
these eight entities were consistent with
other commenter categories and are
captured in the discussions below. All
comments are identified below and are
available on the docket at https://
www.regulations.gov by their document
number (Doc. No.). They are also
available in the Commission’s Reading
Room, at: https://www2.fmc.gov/
readingroom/proceeding/22-04/.

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B. VOCCs
The Commission received comments
from an individual VOCC and from two
trade organizations that represent most
of the largest VOCCs operating in U.S.foreign ocean trade (collectively VOCC
commenters).19 In general, VOCC
commenters cautioned the Commission
against pursuing regulation in this area.
There was an overall concern that such
a regulation could overreach and
ultimately create more harm than good.
For example, WSC warned the
Commission to ‘‘focus on preventing
what is unreasonable as opposed to
seeking to re-make the waterfront in the
image that it believes is most
desirable.’’ 20
VOCC commenters noted the existing
commercial relationships and how
solutions to issues and innovation best
develop through these natural
relationships without outside parties,
such as the Commission.21 The
existence of commercial relationships
meant issues could be resolved in
contractual relations and that
regulations were generally unnecessary.
18 Comments of Ellen Baicher-Armstrong (Doc.
No 39); Comments of RPM Warehouse and
Transportation (Doc. No 32); Comments of J. Peter
Hinge (Doc. No. 9); Comments of Ocean Logistics
(Doc. No. 27); Comments of Naomi Hime (Doc. No.
18); Comments of the International Warehouse
Logistics Association (Doc. No. 81); Comments of
Veconinter USA LLC (Doc. No. 63); Comments of
Weber Distribution LLC (Doc. No. 17).
19 Comments of Crowley Lain America Services,
LLC (Doc. No. 25); Comments of the Ocean Carrier
Equipment Management Association, Inc. (Doc. No.
78); Comments of the World Shipping Council (Doc.
No. 61). Ocean Carrier Equipment Management
Association (OCEMA) and the World Shipping
Council (WSC) represent 22 VOCCs, including:
APL, CMA–CGM, COSCO, Evergreen, Hamburg
Sud, Hapag Lloyd, HMM, Maersk, MSC, ONE, Wan
Hai, and Zim.
20 Doc. No. 61 at 2.
21 See e.g., Doc. No. 61 at 2 (‘‘To the extent
disagreements do arise, all parties are best served
if those disagreements can be resolved promptly
and amicably by the parties involved without the
need for an outside adjudicator such as the FMC or
an arbitrator.’’).

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VOCC commenters expressed concern
about the Commission creating an
environment where the Commission
would create an unbalanced negotiation
sphere.22
VOCC commenters asserted that the
existence of commercial relationships
lends itself to innovation. These
commenters expressed concern that
regulation in this area could stifle
innovation. For example, WSC stated,
‘‘a fixed form and process for invoices
could stifle digital innovation to include
initiatives to do business electronically,
including automated invoices, use of
block chain technology, and more
broadly efforts to digitize the supply
chain.’’ 23
Finally, VOCC commenters also
stressed that implementation of these
changes may prove difficult. These
commenters noted that they have
developed their own billing systems and
because these systems must exchange
information, any required changes
would be significantly difficult.24
OCEMA noted that it is important for
‘‘the FMC to first consider technological
feasibility, the scope and required time
for systems development work that
would be required to support any new
requirements, and whether the proposed
change would burden the ability to
resolve items as part of a pre-pay
process rather than a post-pay
transaction.’’ 25

the Commission may already consider
billing in evaluating demurrage and
detention practices and so additional
regulation was unnecessary.28
Commenters claimed that current
Commission regulations adequately
protect the industry.
MTO commenters also noted the
unique aspects of individual terminals.
MTO commenters expressed concern
about applying a ‘‘one size fits all’’
approach and cautioned the
Commission about the unintended
consequences and technological
difficulties of pursuing this type of
regulation.29 For example, the National
Association of Waterfront Employees
(NAWE) expressed concern that
establishing billing requirements ‘‘will
inevitably disrupt existing commercial
relationships and could impact the
competitiveness of MTOs that continue
to face competition from neighboring
foreign ports.’’ 30 Other MTO
commenters shared this view and
asserted that compliance with any
changes would create administrative
burdens that could worsen current
supply chain issues.31 MTO
commenters argued the costs of any new
regulation would outweigh any benefits
and cited technological limitations,
international competition, and security
concerns as reasons why the
Commission should limit any regulation
it decides to adopt.32

C. MTOs

D. NVOCCs, Freight Forwarders, and
Customs Brokers
The Commission received comments
from ten NVOCCs, freight forwarders,
and customs brokers, and five trade
organizations that represent such
entities (collectively ocean
transportation intermediary (OTI)

The Commission received comments
from an MTO and from three MTO trade
organizations (collectively MTO
commenters).26 Like VOCC commenters,
MTO commenters generally argued
against any new regulation, particularly
if such regulation would apply to
MTOs.27 One commenter observed that
22 See e.g., Doc. No. 78 at 2 (‘‘the FMC should not
seek to right every perceived wrong or to balance
every unfavorable commercial term in a contract by
placing its thumb on the scales to balance the
results of legitimate commercial negotiations.’’).
23 Doc. No. 61 at 3.
24 See e.g., Doc. No. 61 at 3 (‘‘Every carrier and
every MTO has its own systems, and to the extent
that those systems must exchange information (as
would be the case for many of the data elements/
scenarios described in question 6 below), the
complexity is multiplied by the required
interactions between systems. Many of the billing
systems involved are global systems, adding
complexity to any required changes.’’).
25 Doc. No. 78 at 1–2.
26 Comments of the American Association of Port
Authorities (Doc. No. 52); Comments of Maher
Terminals LLC (Doc. No. 49); Comments of National
Association of Waterfront Employers (Doc. No. 26);
Comments of the Port of NY/NJ Sustainable
Services Agreement (Doc. No. 68).
27 See e.g., Doc. No. 49 at 2. (‘‘Maher believes that
the Shipping Act of 1984, as amended . . . , and
the Commission’s regulations thereunder,
particularly 46 U.S.C. 41102(c) and 46 CFR 545.4

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and 545.5, provide a sufficient and flexible legal
framework for determining the reasonableness of
MTO demurrage billing practices.’’)
28 Doc. No. 26 at 2 (noted that the Interpretive
Rule expressly recognizes the multitude of varying
factors that influence the reasonableness of
demurrage and detention charges. See 46 CFR
545.5(f) (‘‘Nothing in this rule precludes the
Commission from considering factors, arguments,
and evidence in addition to those specifically listed
in this rule.’’)).
29 See e.g., Doc. No. 26 at 2.
30 Doc. No. 26 at 2.
31 See e.g., Doc. No. 52 at 6–7 (‘‘Additional
information may be attainable, but would demand
ports engage in costly, administrative data
collection. These efforts would significantly
undermine streamlined operations at ports and
terminals and in turn, generate substantial
congestion and backlogs.’’).
32 See e.g., Doc. No. 52 at 10 (If ports are required
to include extensive and detailed information on
every billing, there is a national security risk that
the aggregated data can be exploited by bad actors
or competitors. Further, information regarding ports
and terminal pricing, dwell times, and maritime
practices risks the disclosure of business-sensitive
proprietary information.).

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commenters).33 OTI commenters
supported the Commission pursuing
this regulation, but NVOCC commenters
did not uniformly support applying any
adopted regulation to NVOCCs.34 Most
NVOCCs argued that the regulation
should not apply to NVOCCs because
NVOCCs do not determine demurrage or
detention rates.35 Two NVOCCs
indicated that the demurrage and
detention billing requirements should
apply to NVOCCs, but did not provide
further explanation. However, one of
these commenters stated that any new
requirements that would apply to
NVOCCs should differ from those that
would apply to VOCCs because
NVOCCs serve as an intermediary
between the VOCCs and shippers.36 In
contrast, freight forwarders and customs
brokers indicated that any proposed
demurrage and detention billing
requirements should apply to VOCCs
and NVOCCs equally as they both
charge demurrage and detention fees.37
OTI commenters generally agreed on
other questions posed in the ANPRM.
For example, OTI commenters
responded that the proposed regulations
should apply to MTOs because they
issue demurrage and detention
charges.38 In addition, these
commenters supported requiring billing
33 Comments of Combined Freight International
KAM (Doc. No. 16); Comments of Lance Sales, Inc.
(Doc. No. 20); Comments of A Custom Brokerage,
Inc. (Doc. No. 70); Comments of the International
Association of Movers (Doc. No. 74); Comments of
J & K Fresh LLC (Doc. No. 29); Comments of the
Los Angeles Customs Brokers and Freight
Forwarders Association (Doc. No 83); Comments of
Mode Transportation, LLC (Doc. No. 13); Comments
of the National Customs Brokers & Forwarders
Association of America, Inc. (Doc. No. 62);
Comments of the New York New Jersey Foreign
Freight Forwarders and Brokers Association, Inc.
(Doc. No. 76); Comments of the Pacific Coast
Council of Customs Brokers and Freight Forwarders
(Doc. No. 82); Comments of Page International (Doc.
No. 19); Comments of Mohawk Global Logistics
Corporation (Doc. No. 69); Comments of Thunder
Bolt Logistics, LLC (Doc. No. 77); Comments of the
Transportation Intermediaries Association (Doc. No.
48); Comments of John S. Connor Global Logistics
(Doc. No. 75).
34 One commenter did not support demurrage and
detention billing requirements regulations to
address the issues, but instead favored an industry
solution. Doc. No. 20 at 1.
35 Doc. No. 16 at 1; Doc. No. 13 at 3; Doc. No.
69 at 3; Doc. No. 70 at 2; Doc. No. 75; Doc. No. 75
at 2; Doc. No. 76 at 2; Doc. No. 77 at 2. See Doc.
No. 62 and Doc. No. 83 (both discuss the
regulations as applying to VOCCs and MTOs as the
billing parties). Some of these commenters stated
that the regulations should apply to NVOCCs if they
‘‘mark up’’ the charge. Doc. No. 13 at 3; Doc. No.
69 at 3; Doc. No. 75 at 2; Doc. No. 76 at 2; Doc.
No. 77 at 2.
36 Doc. No. 19 at 1; Doc. No. 48 at 3.
37 Doc. No. 29 at 1; Doc. No. 74 at 1.
38 Doc. No. 29 at 1; Doc. No. 74 at 1; Doc. No.
16 at 1; Doc. No. 13 at 4; Doc. No. 69 at 1; Doc.
No. 70 at 2; Doc. No. 75 at 1; Doc. No. 62 at 4; Doc.
No. 76 at 2; Doc. No. 19 at 1; Doc. No. 77 at 3; Doc.
No. 48 at 3.

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parties to provide all information
identified in Question 6 of the ANPRM
as well as information on how to
dispute charges to the billing party.39
Some OTI commenters stated that the
Commission should also require billing
parties to certify that the charges
comply with the Shipping Act of 1984,
as amended.40 These commenters were
generally supportive of requiring billing
parties to issue invoices within a
specific timeframe (with most agreeing
that the timeframe should be 30 days or
less) and requiring billing parties to
issue refunds within a specified
timeframe.41
These commenters also stated that if
the billing party invoices multiple
parties, that the invoice should identify
all billed parties and the basis for billing
each. Furthermore, several commenters,
especially customs brokers, asserted that
they should not receive demurrage and
detention invoices. For example, Los
Angeles Customs Brokers and Freight
Forwarders Association (LACBFFA)
observed that shippers often name the
customs broker as the ‘‘notify party’’ for
customs purposes, and, as a result,
custom brokers may receive demurrage
or detention invoices.42 Such
commenters argued that customs
brokers should not receive invoices
because they have no part in the
transportation, negotiation, handling, or
inland transport, and that the
Commission should prohibit common
carriers and MTOs from billing parties
only shown as a notify party on the Bills
of Lading.43
E. BCOs
The Commission received comments
from 26 BCOs and 15 trade
39 Doc. No. 29 at 2–3; Doc. No. 74 at 1; Doc. No.
82 at 1; Doc. No. 16 at 2–3; Doc. No. 13 at 5, 7;
Doc. No. 69 at 5, 7–8; Doc. No. 70 at 3, 5; Doc. No.
75 at 3–4; Doc. No. 83 at 2; Doc. No. 62 at 4; Doc.
No. 76 at 4–5; Doc. No. 19 at 2–3; Doc. No. 77 at
5, 7; Doc. No. 48 at 4–7. Question 6 requested
comments on whether billing parties should be
required to provide the following information on
demurrage and detention invoices: 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); container
availability dates and vessel arrival dates for import
shipments; for export shipments, the earliest return
dates (and any modifications to those dates); any
intervening clock-stopping events, and whether the
charge is a pass-through of charges levied by the
MTO or port. 87 FR at 8509.
40 See Doc. No. 77 at 5; Doc. No. 69 at 5; Doc.
No. 75 at 3.
41 Doc. No. 29 at 3; Doc. No. 19 at 3; Doc. No.
77 at 7; Doc. No. 48 at 6; Doc. No. 82 at 2; Doc.
No. 83 at 2; Doc. No. 62 at 5; Doc. No. 70 at 5; Doc.
No. 69 at 7; Doc. No. 75 at 4; Doc. No. 16 at 3; Doc.
No. 13 at 7.
42 Doc. No. 83 at 3.
43 Doc. No. 83 at 3; Doc. No. 82 at 2–3.

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organizations that represent these
entities (collectively BCO
commenters).44 BCO commenters
generally agreed on issues raised in the
ANPRM. For example, BCO commenters
responded that the regulations should
apply to VOCCs, NVOCCs, and MTOs
equally. The majority of BCO
commenters stated that if the entity
issued demurrage or detention charges,
then the regulation should apply.45 BCO
commenters cited the need for uniform
requirements to apply to all demurrage
and detention invoices they receive,
regardless of whether the billing party is
44 Comments of the Agriculture Transportation
Coalition (Doc. No. 84); Comments of the American
Association of Exporters and Importers (Doc. No.
65); Comments of the American Chemistry Council
(Doc. No. 54); Comments of the American Coffee
Corporation (Doc. No. 73); Comments of
Association of California Recycling Industries (Doc.
No. 21); Comments of the Auto Care Association
(Doc. No. 79); Comments of Bostock North America
(Doc. No. 30); Comments of BassTech International
(Doc. No. 72); Comments of Calpine Containers, Inc.
(Doc. No. 50); Comments of Jean-Luc Carriere (Doc.
No. 5); Comments of the Consumer Technology
Association (Doc. No. 67); Comments of Lani
Ellingsworth (Doc. No. 11); Comments of Flooring
One Source (Doc. No. 3); Comments of Braun
Export (Doc. No. 14); Comments of The Grape
Company (Doc. No. 42); Comments of LG
Electronics USA, Inc. (Doc. No. 44); Comments of
The Meadows Group, LLC (Doc. No. 22); Comments
of the Meat Import Council of America, North
American Meat Institute, and U.S. Meat Export
Federation (Doc. No. 64); Comments of National
Association of Chemical Distributors (Doc. No. 58);
Comments of National Association of
Manufacturers (Doc. No. 55); Comments of the
National Industrial Transportation League (Doc. No.
60); Comments of National Milk Producers
Federation and U.S. Dairy Export Council (Doc. No.
43); Comments of the National Retail Federation
(Doc. No. 53); Comments of the North American
Home Furnishings Association (Doc. No. 80);
Comments of David Oppenheimer and Company, I,
LLC (Doc. No. 40); Comments of Pacific Trellis Fruit
(Doc. No. 71); Comments of Pinnacle Fresh USA,
LLC (Doc. No. 31); Comments of TBC Corporation
(Doc. No. 6); Comments of Potential Industries, Inc.
(Doc. No. 4); Comments of Sbrocco International,
Inc. (Doc. No. 66); Comments of Sony Electronics
Inc. (Doc. No. 37); Comments of Streamlight, Inc.
(Doc. No. 35); Comments of Suntreat Packing &
Shipping Co. (Doc. No. 38); Comments of The Toy
Association (Doc. No. 41); Comments of Trelleborg
Wheel Systems Americas, Inc. (Doc. No. 34);
Comments of USA Rice (Doc. No. 28); Comments
of Vivion, Inc. (Doc. No. 8); Comments of Westco
Chemicals, Inc. (Doc. No. 36); Comments of Green
Fresh Imports (Doc. No. 85); Comments of United
Furniture Industries, Inc./Lane Home Furnishing
(Doc. No. 86).
45 See e.g., Doc. No. 67 at 2 (‘‘[Consumer
Technology Association] encourages the
Commission to impose the same requirements as to
minimum billing information on VOCCs, NVOCCs,
and MTOs to facilitate industry-wide
transparency.’’); Doc. No. 58 at 2 (‘‘[VOCCs,
NVOCCs, and MTOs] all charge detention and
demurrage fees, and [the National Association of
Chemical Distributors] strongly recommends that
each be included in any proposed detention and
demurrage billing regulation.’’); Doc. No. 55 at 1–
2 (‘‘These requirements should apply to all parties
that may be involved in submitting demurrage and
detention bills to shippers and BCOs, including
VOCCs, NVOCCs, and MTOs.’’).

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a VOCC, NVOCC, or MTO. However,
many of these BCOs preferred not to
receive invoices from MTOs because
they have no contractual relationship
with the MTO.46 Several BCO
commenters expressed the opposite
view and supported a requirement that
MTOs bill the BCO directly to avoid
additional fees from VOCCs when they
pass through such charges.47
BCO commenters generally supported
requiring billing parties to provide all
information identified in Question 6 of
the ANPRM and information on how to
dispute charges to the billing party.
Specifically, BCO commenters cited that
requiring such information would put
the burden to support the charge on the
carrier and would, hopefully, limit the
need to dispute charges.48 They noted
that the most helpful data to address
disputed charges would be information
related to stop-the-clock events, free
time or charges applied when containers
are not available for pickup, or when
BCOs are unable to drop off containers
at a terminal.49 BCO commenters
asserted that having access to the type
of information listed in the ANPRM
would help them verify the charges.50
46 See e.g., Doc. No. 65 at 5 (‘‘Without a
contractual connection between the MTO and the
shipper, [American Association of Exporters and
Importers] members don’t see how this would work,
and forcing shippers to have a contractual
agreement with an MTO is not a good idea.’’); Doc.
No. 54 at 4 (‘‘Without a contractual connection
between the MTO and the shipper, such a
requirement would be unworkable.’’). Some BCO
commenters noted, however, the invoice carriers
send to shippers should identify the demurrage
charges levied by the MTO to the carrier. See e.g.,
Doc. No. 84 at 5; Doc. No. 64 at 6.
47 See e.g., Doc. No. 41 at 4 (its members pay
demurrage to MTOs and detention to the carriers);
Doc. No. 53 at 4 (supported this practice because
it would help avoid VOCCs charging more than
MTOs charge); Doc. No. 28 at 3 (over half of its
survey respondents supported MTOs charging
demurrage directly to shippers).
48 See e.g., Doc. No. 64 at 5 (the minimum
requirements would put ‘‘the burden on the
common carrier to ensure more accurate, timely
billing, which should, in theory, minimize
superfluous charges and improve business
practices.’’); Doc. No. 67 at 2 (minimum billing
requirements ‘‘will promote transparency for all
parties involved in shipping transactions, help
ensure accountability, and deter unfair business
practices[.]’’); Doc. No. 58 at 2 (‘‘A requirements for
all relevant information . . . . would hold billing
parties more accountable. It would prevent the
VOCCs, NVOCCs, and MTOs from charging
erroneous fees that shippers have little or no
opportunities to contest.’’); Doc. No. 43 at 4
(‘‘Shippers need a full set of details about the
containers subject to detention or demurrage
charges to effectively assure they are properly
assessed charges.’’).
49 Commenters report that most disputed charges
include when free time starts and stops; countable
days and whether the ‘‘clock stopping’’ events, such
as there were no appointments, container was
unavailable, terminal equipment, such as chassis,
was unavailable, etc., should reduce the charges.
50 See e.g., Doc. No. 60 at 5 (including clock
stopping events will ‘‘facilitate the carrier to fulfill

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Some BCO commenters stated that the
Commission should also require billing
parties to certify that the charges
comply with the Shipping Act of 1984,
as amended.51 In addition, they also
supported the requirement that if the
billing party invoices more than one
party, then the invoice must identify all
billed parties and the basis for billing
each party.
BCO commenters were generally
supportive of requiring billing parties to
include specific information regarding
how the billed party may dispute a
charge. Specifically, they supported
requiring billing parties to provide
contact information for disputes and
instructions on how to file disputes or
information applicable to the dispute
process, such as when a charge may be
waived or what documentation the
billed party must submit with its
request.52
Many BCO commenters supported
requiring billing parties to issue
demurrage or detention invoices within
60 days of when the charges stop
accruing; many commenters supported a
timeframe of 30 days or less.53 As
discussed below, BCO commenters
supported a shorter timeframe for
issuing demurrage and detention
invoices because it is more likely that
billed parties will have the information
and documents necessary to verify the
charges. They also complained that
demurrage and detention invoices arrive
months after the charges accrued and
that billed parties lacked the
documentation necessary to verify the
charge due to passage of time.
F. Motor Carriers
The Commission received comments
from six motor carriers and four motor
carrier trade organizations (collectively
Motor Carrier commenters).54 For the
their responsibility to bill demurrage and detention
charges to meet the incentivizing principle[.]’’);
Doc. No. 22 at 2–3 (omission of event that should
stop the clock from invoices ‘‘makes it impossible
for shippers to verify whether they are actually
accounted for when the final total is calculated.’’);
Doc. No. 8 at 2 (omission of minimum information
‘‘makes it extremely difficult for shippers to be able
to verify the amount charged are correct.’’). See also
Doc. No. 3 at 2; Doc. No. 44 at 2; Doc. No. 40 at
2; Doc. No. 35 at 2; Doc. No. 34 at 2; Doc. No. 64
at 5; Doc. No. 58 at 2; Doc. No. 55 at 2; Doc. No.
43 at 4.
51 See e.g., Doc. No. 65 at 4; Doc. No. 84 at 4; Doc.
No. 43 at 5.
52 See e.g., Doc. No. 60 at 8; Doc. No. 28 at 3; Doc.
No. 53 at 5; Doc. No. 43 at 5; Doc. No. 64 at 7; Doc.
No. 67 at 6; Doc. No. 84 at 5; Doc. No. 21 at 4; Doc.
No. 54 at 5; Doc. No. 79 at 5.
53 A more detailed discussion of the timeframes
supported by specific commenters is found in
section IV.C.1, which discusses the proposed
timeframe for billing parties to issue demurrage and
detention invoices.
54 Comments of Association of Bi-State Motor
Carriers (Doc. No. 51); Comments of Harbor

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62345

most part, the Motor Carrier
commenters expressed similar views as
the BCO commenters. For example, the
Motor Carrier commenters generally
supported applying the demurrage and
detention billing requirements to
VOCCs, NVOCCs, and MTOs; requiring
billing parties to provide all information
listed in the ANPRM; requiring billing
parties to identify all billed parties and
the basis for each billed party; and
requiring billing parties to issue
invoices within a specific timeframe.
In addition, the Motor Carrier
commenters expressed concern that
billing parties frequently invoiced motor
carriers, who have no contractual
relationship with the billing parties. For
example, the Association of Bi-State
Motor Carriers (Bi-State) argued that
‘‘motor carriers are not privy to the
specifics of the contractual agreements
between the shipper and billing parties,
and should not be dragged into billing
disputes.’’ 55 However, Bi-State noted
that billing parties sometimes
threatened to prevent motor carriers
from picking up or dropping off
containers due to disputes with one of
the motor carrier’s customers.56 As a
result, Motor Carrier commenters
alleged that they must cover the
disputed charges in order to serve their
other customers.57 Accordingly, the
Motor Carrier commenters encouraged
the Commission to adopt an approach
that would require the billing party to
bill the customers (BCOs or shippers)
directly, as they are the parties who
have a contractual relationship with the
billing parties.58 As a result they said,
motor carriers would no longer be
responsible to pay such charges or risk
business relationships with their other
customers if one customer disputes
those charges.
III. Ocean Shipping Reform Act of 2022
After the Commission issued the
ANPRM and received comments, on
June 16, 2022, the President signed the
Trucking Association (Doc. No. 33); Comments of
MTI, Inc. (Doc. No. 46); Comments of Golden State
Logistics (Doc. No. 59); Comments of IMC
Companies (Doc. No. 7); Comments of Intermodal
Association of North America (Doc. No. 24);
Comments of Intermodal Motor Carriers Conference
(Doc. No. 47); Comments of William H. Kopke Jr.
Inc. (Doc. No. 56); Comments of Marine Container
Services LLC (Doc. No. 45); Comments of 1634, A
Florida LLC (Doc. No. 15).
55 Doc. No. 51 at 2.
56 Doc. No. 51 at 2.
57 Doc. No. 51 at 2; Doc. No. 47 at 2, 3.
58 See e.g., Doc. No. 51 at 1 (VOCCs should bill
shippers directly); Doc. No. 47 at 2 (supported
MTOs billing shippers directly because motor
carriers ‘‘are not aware of separate contractual
arrangements.’’); Doc. No. 33 at 8 (their members
indicated that demurrage and detention should be
billed directly to contracting party).

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Ocean Shipping Reform Act of 2022
(OSRA 2022) into law.59 In OSRA 2022,
Congress amended various statutory
provisions contained in Part A of
Subtitle IV of Title 46, U.S. Code.
Specifically, OSRA 2022 prohibits
common carriers from issuing an
invoice for demurrage or detention
charges unless the invoice includes
specific information to show that the
charges comply with part 545 of title 46,
Code of Federal Regulations and
applicable provisions and regulations.60
OSRA 2022 then lists the minimum
information that common carriers must
include in a demurrage or detention
invoice:
(A) date that container is made
available.
(B) the port of discharge.
(C) the container number or numbers.
(D) for exported shipments, the
earliest return date.
(E) the allowed free time in days.
(F) the start date of free time.
(G) the end date of free time.
(H) the applicable detention or
demurrage rule on which the daily rate
is based.
(I) the applicable rate or rates per the
applicable rule.
(J) the total amount due.
(K) the email, telephone number, or
other appropriate contact information
for questions or requests for mitigation
of fees.
(L) a statement that the charges are
consistent with any of Federal Maritime
Commission rules with respect to
detention and demurrage.
(M) a statement that the common
carrier’s performance did not cause or
contribute to the underlying invoiced
charges.61
Failure to include the required
information on a demurrage or
detention invoice eliminates any
obligation of the billed party to pay the
applicable charge.62 In addition, OSRA
2022 also authorizes the Commission to
revise the minimum information that
common carriers must include on
demurrage or detention invoices in
future rulemakings. The Commission
addresses this minimum information in
this proposed rule.63
OSRA 2022 requires the Commission
to initiate a rulemaking further defining
prohibited practices by common
carriers, marine terminal operators,
59 Public

Law 117–146, 136 Stat. 1272 (2022).
Law 117–146 at Sec. 7(a)(1), 136 Stat. at
1274 (codified at 46 U.S.C. 41104(a)(15)).
61 Public Law 117–146 at Sec. 7(a)(2), 136 Stat. at
1275 (codified at 46 U.S.C. 41104(d)(2)).
62 Public Law 117–146 at Sec. 7(a)(2), 136 Stat. at
1275 (codified at 46 U.S.C. 41104(f)).
63 Public Law 117–146 at Sec. 7(a)(2), 136 Stat. at
1275 (codified at 46 U.S.C. 41104(d)(2)).
60 Public

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shippers, and OTIs regarding the
assessment of demurrage or detention
charges.64 OSRA 2022 also provides that
such rulemaking must ‘‘only seek to
further clarify reasonable rules and
practices related to the assessment of
detention and demurrage charges to
address the issues identified in the final
rule published on May 18, 2020,
entitled ‘Interpretive Rule on Demurrage
and Detention Under the Shipping Act’
(or successor rule)[.]’’ 65 Specifically, the
Commission’s rulemaking must clarify
‘‘which parties may be appropriately
billed for any demurrage, detention, or
other similar per container charges.’’ 66
The Commission offers that clarification
in this proposed rule.
IV. Discussion of Proposed Rule
A. General Provisions
1. Purpose of Rule
This proposed rule would (1) adopt
minimum information that common
carriers must include in a demurrage or
detention invoice that is listed in 46
U.S.C. 41104(d)(2); (2) add to this list
additional information that must be
included in or with a demurrage or
detention invoice; (3) further define
prohibited practices by clarifying which
parties may be appropriately billed for
demurrage or detention charges; and (4)
establish billing practices that billing
parties must follow when invoicing for
demurrage or detention charges.
2. Scope and Applicability
This subpart sets forth regulations
governing any invoice issued by an
ocean common carrier, MTO, or NVOCC
to a billed party or their designated
agent for the collection of demurrage or
detention charges. This regulation does
not govern the billing relationships
among and between ocean common
carriers and MTOs.
As a preliminary matter, the
Commission sought comment on to
whom this rule should apply.
Specifically, the Commission asked
whether NVOCCs and MTOs should be
bound by the requirements of the rule.
The majority of commenters supported
applying the rule to both NVOCCs and
MTOs. The Commission has determined
that the proposed rule would apply to
MTOs and NVOCCs, as well as VOCCs,
but will not regulate the billing
arrangements between VOCCs and
MTOs for the reasons discussed below.
64 Public Law 117–146 at Sec. 7(b)(1), 136 Stat. at
1275.
65 Public Law 117–146 at Sec. 7(b)(2), 136 Stat. at
1275 (emphasis added).
66 Public Law 117–146 at Sec. 7(b)(2), 136 Stat. at
1275.

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a. Inclusion of NVOCCs
Fact Finding No. 29 recommended
that the Commission regulate the
demurrage and detention billings and
billing practices of both common
carriers and MTOs.67 In its opening
question to the ANPRM’s list of
requested information, the Commission
asked if both NVOCCs and VOCCs
should be included in the regulation.68
Most commenters supported applying
the regulations to NVOCCs. Generally,
these commenters noted the importance
of consistency across the industry and
the need for everyone to adhere to
uniform standards.69 As described by
the WSC, ‘‘[t]he need for predictable
and clear billing does not change on the
basis of whether the billing entity does
or does not operate ships—the
distinction between VOCCs and
NVOCCs. The customer benefits of
transparent and timely billing apply
equally in both instances[.]’’ 70
Few commenters opposed applying
any proposed billing requirements to
NVOCCs. The most common objection
was that NVOCCs do not control any
physical assets (i.e., equipment or land)
to be subject to the rule and that usually
NVOCCs treat demurrage and detention
charges as a pass-through cost.71 One
commenter noted that because a NVOCC
has to pay a VOCC or MTO for these
types of charges, an NVOCC has no
reason to hold back sending an invoice
to a BCO because that will leave the
NVOCC with outstanding charges to the
carrier.72
Although most NVOCCs are only
passing through charges to BCOs, that
does not change the fact that some
NVOCCs invoice BCOs for demurrage
and detention.73 BCOs employing an
67 Fact

Finding No. 29 Interim Report at 6.
FR at 8509.
69 See e.g., Doc. No. 29 at 1 (stressed that ‘‘there
must be uniformity (One rule for demurrage and
detention billing, no matter who bills it.)’’); Doc.
No. 60 at 3 (‘‘[BCOs] are entitled to receive timely,
accurate and explanatory billing from their
contracted carrier whether the carriage is contracted
pursuant to a bill of lading issued by an NVOCC
or by a VOCC.’’).
70 Doc. No. 61 at 4.
71 See e.g., Doc. No. 69 at 3 (‘‘NVOCCs do not
generally file [demurrage and detention] schedules
in their tariffs and do not generate [demurrage and
detention] charges on their own. Instead, [these]
charges originate with VOCCs and MTOs, and are
merely passed through by NVOCCs as facilitators of
the transaction.’’).
72 Doc. No. 13 at 4 (‘‘there is no logic in the
NVOCC unreasonably delaying billing or notifying
the customer. The NVOCC is the party who is being
billed by the carrier/terminal and will have the
outstanding payables due to the carrier, so clearly,
there is no general logic that encourages them to
delay billing to their end customer.’’).
73 NVOCCs may also issue invoices that charge
demurrage or detention based on their own tariff
rules or negotiated rates. In addition, NVOCCs may
68 87

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Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / Proposed Rules
NVOCC generally do not interact with
VOCCs and, as a result, the demurrage
or detention invoice BCOs receive from
an NVOCC may be their only notice
about the origin and breakout of these
charges. Additionally, because of its
contractual relationship with the BCO,
an NVOCC is often the only party in this
transaction able to inform BCOs as to
the nature of these charges.
Furthermore, there is a greater need for
transparency when the NVOCCs markup
demurrage or detention charges assessed
by VOCCs or MTOs or when NVOCCs
charge demurrage or detention based on
their own tariff rules or negotiated
agreements.
Ultimately, this regulation is an
outgrowth of the work done in Fact
Finding No. 29. As noted in the Final
Report, ‘‘[t]hroughout the Fact Finding,
industry members reported confusion
about the information contained in
invoices.’’ 74 As discussed below, the
intent of this rulemaking is to ensure
that the person receiving the bill
understands the charges regardless of
whether the billing party is a VOCC,
NVOCC, or an MTO.75
b. Inclusion of MTOs

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MTOs often do not have direct
contractual relationships with shippers.
Instead, MTOs usually have contractual
relationships with VOCCs, such as
through terminal services agreements.76
However, an MTO may separately assess
demurrage as an implied contract in a
court of law, provided that demurrage
rates are published as part of the MTO’s
rate schedule.77
Commenters overwhelmingly argued
that the proposed rule should apply to
MTOs. Again, while the most common
practice is for the MTO to invoice the
VOCC and the VOCC to send a
combined invoice to the shipper, several
commenters also noted that in some
cases MTOs bill shippers directly.78
MTOs were generally opposed to the
proposed regulations, citing that
traditionally they do not invoice
also mark-up the demurrage or detention charge
assessed by a VOCC or MTO.
74 Fact Finding Investigation 29: Final Report at
51 (May 31, 2022) (Fact Finding 29 Final Report),
available at: https://www.fmc.gov/wp-content/
uploads/2022/06/FactFinding29FinalReport.pdf.
75 See Fact Finding 29 Interim Recommendations
at 6 (recommending a rulemaking on demurrage
and detention billing requirements so that the
person receiving the bill understands ‘‘what is
being billed and by whom.’’).
76 See 46 CFR 535.309.
77 46 U.S.C. 40501(f); 46 CFR 525.2.
78 See e.g., Doc. No. 61 at 4 (‘‘MTOs can and do
bill for demurrage, and there are multiple business
models at ports around the country under which
carriers bill on behalf of MTOs and vice versa.’’)

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shippers directly, but instead work with
VOCCs.79
The Commission’s primary concern
with this proposed regulation is to
ensure billed parties understand the
demurrage or detention invoices they
receive. Although, at least under the
traditional process, it appears that
MTOs rarely interact with anyone other
than the VOCC, in those cases where an
MTO invoices a shipper, the MTO
should be subject to the same
regulations that apply to VOCCs and
NVOCCs.
c. MTO and VOCC Relationships
This proposed regulation does not
govern the billing relationships among
and between VOCCs and MTOs. As
noted earlier, the purpose of the
proposed rule is to identify the
minimum information billing parties
must include on demurrage and
detention invoices, and to improve the
invoices’ clarity. Although the Fact
Finding No. 29 Final Report noted that
shippers reported confusion about
information contained in demurrage and
detention invoices, the Fact-Finding
Officer did not receive similar concerns
from VOCCs about invoices they were
receiving from MTOs.80
The ANPRM specifically asked
whether the proposed regulation should
apply to the format in which MTOs bill
VOCCs.81 Most OTI, BCO, and Motor
Carrier commenters answered this
question by discussing invoices they
receive from carriers and the need to
have charges originating from an MTO
and charges originating from a VOCC
distinguished.82 This fact suggests that
the primary concern that needs to be
addressed in this proposed regulation is
not the billing interactions between
MTOs and VOCCs, but rather
transparency and clarity on invoices
issued to OTIs, shippers, and motor
carriers.
Further, many MTOs and MTO trade
organizations also argued that
regulations in this realm were not
warranted. For example, the NAWE
explained, ‘‘[t]he unique commercial
relationships negotiated between
79 See

e.g., Doc. No. 49 at 2; Doc. No. 26 at 3.
Finding 29 Final Report at 51. See e.g.,
Coalition for Fair Port Practices Petition for
Rulemaking, FMC Docket No. P4–16, (Dec. 7, 2016);
Fact Finding Investigation No. 28: Final Report,
(Sep. 4, 2018), available at: https://www2.fmc.gov/
readingroom/docs/FF%20No.%2028/FF28_int_
rpt2.pdf/.
81 87 FR at 8509.
82 See e.g., Doc. No. 37 at 2 (noted that ‘‘charges
should be properly distinguished and identified so
that by reviewing a bill the invoiced party can
determine which charges are being passed along by
VOCCs and which charges are being billed directly
to the invoiced party in the first instance.’’).
80 Fact

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VOCCs and MTOs have not been the
source of demurrage complaints.’’ 83
Other commenters cited the close
commercial relationship shared by
MTOs and VOCCs, which, they argued,
made additional regulation
unnecessary.84
The Commission received a few
comments from VOCCs who favored
extending regulations to cover the
invoicing from MTOs to VOCCs. These
comments were generally about
maintaining accurate information
throughout the process.85 VOCC
commenters stressed the importance of
applying consistent information
requirements at each stage in the supply
chain.86
Notwithstanding the comments from
OCEMA and WSC, the Commission has
not received comments responding to
the ANPRM or elsewhere that expressed
concerns about the relationships or
interactions between VOCCs and MTOs
that warrant regulating the format used
by MTOs to bill VOCCs. The
Commission notes the strong
commercial relationships between
MTOs and VOCCs and is confident that
these current contractual relationships
will continue to ensure that the proper
information is shared and that the party
who ultimately receives the invoice is
receiving accurate information. Thus,
the Commission concludes that at this
time it is not necessary to impose
minimum billing information
requirements for MTO invoices issued
to VOCCs.
83 Doc. No. 26 at 3. See Doc. No. 60 at 3 (‘‘the
assessment of the terms and charges by [MTOs] on
[VOCCs] has not so far been a part of the scope of
Fact Finding Investigation 28’’); Doc. No. 49 at 3
(‘‘Maher has not received any feedback from its
carrier customers and other Terminal users that its
free time and demurrage policies and practices are
unclear or confusing, or that further regulations are
necessary to improve clarity with respect to such
policies and practices.’’).
84 Doc. No. 49 at 3 (‘‘The Commission should not
adopt a demurrage billing regulation that includes
MTOs, let alone one that regulates the format in
which MTOs charge demurrage to VOCCs. To the
extent that Maher charges demurrage directly to its
VOCC customers, as opposed to other Terminal
users, those arrangements are set forth in privately
negotiated, arms-length terminal service
agreements, which are subject to tailored governing
law and dispute resolution provisions.’’).
85 Doc. No. 61 at 4 (‘‘It would be impractical if
charges originating with MTOs, but potentially
collected by common carriers, were not subject to
the same minimum standards regarding included
information. To the extent that a charge may be
handled by multiple parties—whether on an agency
basis or as a pass-through—it is critical that the
relevant information be available to all parties in
the chain.’’).
86 See e.g., Doc. No. 78 at 3 (‘‘OCEMA has no
position on this issue at this time. However,
OCEMA stresses the importance of consistency and
transparency throughout the supply chain with
respect to any information requirements imposed
on VOCCs.’’).

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3. Definitions
a. Demurrage or Detention
For purposes of this proposed rule,
the Commission defines the terms
‘‘demurrage or detention’’ broadly to
include any charge assessed by common
carriers and marine terminal operators
related to the use of marine terminal
space or shipping containers. This
proposed definition is the same as the
scope used in 46 CFR 545.5(b). The goal
is to encompass all charges having the
purpose or effect of demurrage or
detention regardless of the labels given
to those charges. Under this definition,
for instance, a charge assessed by a
common carrier for the use of containers
outside a marine terminal would fall
within the scope of this rule regardless
of whether the charge was called
‘‘detention’’ or ‘‘per diem.’’ Similarly, a
charge assessed because a container is
taking up terminal space would fall
within the scope of this rule even if the
billing party called the charge
something other than ‘‘demurrage.’’ Like
the scope denoted in 46 CFR 545.5, the
proposed rule specifically limits these
definitions to ‘‘shipping containers’’ and
excludes charges related to other
equipment, such as chassis, because
depending on the context, ‘‘per diem’’
can refer to containers, chassis, or both.
As previously expressed during the
Commission’s interpretive rulemaking
at 46 CFR 545.5, the Commission
supports defining demurrage and
detention charges based on what asset is
the source of the charge (land or
container) as opposed to the location of
a container (inside or outside a
terminal).87 In that prior rulemaking, the
Commission discouraged use of terms
such as ‘‘storage’’ and ‘‘per diem’’ as
synonyms for demurrage and detention
because these terms add additional
complexity. The Commission reiterates
those statements here and notes that,
despite how it may be used in the
industry, to ensure clarity the
Commission generally favors using the
term ‘‘per diem’’ to refer to the use of
chassis.

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b. Demurrage or Detention Invoice
The Commission proposes to broadly
defining the term ‘‘demurrage or
detention invoice’’ as meaning any
statement, printed, written, or accessible
online, that documents an assessment of
demurrage or detention charges. By
proposing a broad definition, the
Commission intends the definition to
include the existing variety of methods
87 Interpretive Rule on Demurrage and Detention
Under the Shipping Act Final Rule, 85 FR 29638,
29666 (May 18, 2020) (codified at 46 CFR 545.5).

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employed by common carriers and
MTOs to invoice shippers, and to leave
room for improvement of existing
systems or adopting of any new,
innovative invoicing methods.
The Commission received a few
comments asking it to institute
requirements on how invoices are
displayed or presented to shippers.88
Although there are a variety of existing
methods to display and deliver this
information, the Commission does not
perceive a problem necessitating a
regulatory solution at this time. The
Commission intends the proposed
definition to encompass the many
existing and potential future methods
that a bill might be presented and does
not indicate a preference or
requirement.
c. Billed Party
The Commission is proposing to
define ‘‘billed party’’ as meaning the
person receiving the demurrage or
detention invoice and who is
responsible for the payment of any
incurred demurrage or detention charge.
In the Commission’s view, this
proposed definition would best capture
the intended scope of this term and
eliminate any potential ambiguity as to
its coverage.
d. Billing Party
This proposed rule would define the
term ‘‘billing party’’ as meaning the
VOCC, NVOCC, or MTO who issues a
demurrage or detention invoice. The
Commission acknowledges that,
currently, in most circumstances the
billing party will be a VOCC. For
purposes of this proposed rule, this term
is defined broadly to incorporate the
occasions when an MTO or an NVOCC
may issue a demurrage or detention
invoice.
e. Billing Dispute
The term ‘‘billing dispute’’ would
mean any disagreement with respect to
the validity of the charges, or the
method of their invoicing raised by the
billed party or their agent to the billing
party. This proposed definition, and
more generally, this proposed rule, does
not indicate a preference or requirement
for the format in which a dispute may
be raised. Instead, the Commission
proposes a broad definition that
incorporates all types of disputes raised
88 See e.g., Doc. No. 62 at 4–5 (‘‘One way to make
invoices more accessible is to provide recipients
with a digital copy of the invoice (for example,
through an electronic portal or online source) rather
than solely by hardcopy.’’); Doc. No. 81 at 2
(‘‘Invoices should be readily available (i.e. online)
so NVOCCs can provide statements to their
customers.’’).

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by a billed party upon receiving a
demurrage or detention invoice.
4. Properly Issued Invoices
OSRA 2022 directs the Commission to
initiate a rulemaking that seeks to
‘‘further clarify reasonable rules and
practices related to the assessment of
detention and demurrage charges[.]’’ 89
Specifically, OSRA 2022 instructs the
Commission to address ‘‘which parties
may be appropriately billed for any
demurrage, detention, or other similar
per container charge.’’ 90 Under the
proposed rule, a properly issued invoice
is an invoice that is only issued to the
person that has contracted with the
billing party for the carriage of goods or
space to store cargo, and is therefore the
person responsible for the payment of
any incurred demurrage or detention
charge. This is often the shipper of
record. The proposed rule would
prohibit billing parties from issuing
demurrage and detention invoices to
persons other than the person for whose
account the billing party provided ocean
transportation or storage.
As a result of anecdotal reports
indicating that billing parties sometimes
sent invoices to multiple parties for the
same shipments, the Commission asked
whether this practice occurred
regularly.91 Many commenters
described a current, wide-spread
practice where the billing party sends
the invoice to multiple parties, most of
whom are not the recipient of the
service giving rise to the invoiced
charge.92 The current system, in which
parties who did not negotiate contract
terms with the billing party are
nonetheless bound by them, creates
additional confusion and hardship and
exacerbates problems in the supply
chain. For example, one commenter
noted that this practice often results in
disputes among the parties.93 Other
commenters noted that invoicing
multiple parties results in duplicative
payments, which further complicates
resolving invoice disputes.94
Although the Commission did not
specifically request comments on
prohibiting billing parties from
89 OSRA

2022, Section 7(b)(2).
2022, Section 7(b)(2).
91 87 FR at 8508–8509.
92 See e.g., Doc. No. 44 at 3; Doc. No. 37 at 2; Doc.
No. 19 at 2; Doc. No. 15 at 3; Doc. No. 13 at 5–6;
Doc. No. 8 at 3; Doc. No. 47 at 6; Doc. No. 48 at
5.
93 Doc. No. 53 at 4.
94 Doc. No. 28 at 2 (‘‘According to most survey
respondents, common carriers invoice multiple
parties for demurrage and/or detention charges
sometimes resulting in duplicative payments’’);
Doc. No. 13 at 6 (‘‘We also see invoices being sent
on the same container to multiple parties, and at
times, it is paid more than once[.]’’).
90 OSRA

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invoicing anyone except the party who
contracted for the service (usually the
shipper), the Commission received
many comments urging it to adopt such
regulations.95 Commenters expressed
frustration at the practice of billing
demurrage and detention charges to
parties who have not agreed to the
charges or are not otherwise liable.96
Other commenters suggested that
common carriers bill third parties to
shield customer relationships.97
Commenters who supported such a
regulation generally agreed with the
concept that only the parties to the
contract (usually the shipper and
common carrier), have insight into the
contractual agreements between the
shipper and common carrier.98 Because
third parties lack direct involvement
and information, most would not be
privy to the demurrage and detention
terms negotiated by the parties to the
original contractual agreement, and
therefore are at a disadvantage if pulled
into a dispute over such charges. One
specific instance where not being a
party to the contract is a disadvantage
is in determining free time. As one
commenter explained:
‘‘Motor carriers are not a party to
contracts and may not be aware of
contractual allowances for free time. Yet
motor carriers receive these invoices
and are then responsible for working
with ocean carriers and shippers to
determine which contract the shipment
was under and whether it allowed for
additional free time beyond what has
been billed.’’ 99
Other commenters also described the
difficulty of verifying the accuracy of
charges when they were not party to the
agreements that determine the allotted
free time.100
95 See e.g., Doc. No. 82 at 4; Doc. No. 56 at 3; Doc.
No. 33 at 3; Doc. No. 51 at 1.
96 See e.g., Doc. No. 84 at 5 (‘‘The carrier may not
invoice a party merely because the carrier has
expanded the list of parties which it includes as a
merchant in its B/L’’).
97 See Doc. No. 82 at 4 (‘‘The carriers are billing
the party of least resistance. It appears the first and
easiest choice under the ‘‘Merchant Clause’’ is to
bill the US customs broker on import shipments as
there would be minimal effort on the carrier’s part
(since the carrier’s shipper may be based overseas),
and the carrier prefers to avoid imposing detention/
demurrage on a current or future customer BCO.
Instead, the carrier lawyers pursue a small US
customs broker with whom the carrier has not had,
and likely will never have, any commercial
relationship.’’).
98 Doc. No. 51 at 1 (‘‘Members feel strongly that
the VOCC should bill the customers directly, as
they are the parties who formed the agreement. This
would remove the drayage carrier from the
equation, reduce confusion, and keep the business
relationships clear.’’).
99 Doc. No. 47 at 2.
100 See Doc. No. 33 at 3 (‘‘If a motor carrier is
paying demurrage, it is impossible to know if the

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The Commission understands the
concerns with invoices being sent to
those individuals without a contractual
relationship and acknowledges that this
practice exacerbates dispute resolution
and efficient movement of cargo. As was
pointed out in the Final Report of the
Supply Chain Innovation Team
Initiative, the ‘‘United States
international supply chain is a complex,
dynamic ecosystem’’ and the ‘‘lack of
direct customer relationships between
actors in this system (such as shippers
and terminals) impedes cooperative
problem-solving, exacerbates
disruptions . . . and makes recovering
from disruptions more difficult[.]’’ 101
This is exactly the case here where
motor carriers, custom brokers, and
others who do not have customer
relationships with common carriers are
being asked to resolve disputes.
Many commenters also acknowledged
the value of commercial relationships
within the system. For example, many
commenters opposed requiring MTOs to
bill shippers directly because of a lack
of direct commercial relationship.102
Other commenters cited the value of the
existing relationships between MTOs
and VOCCs and the benefit it brings to
the supply chain. For example, the
National Industrial Transportation
League noted, ‘‘[t]he commercial
relationship between [VOCCs] and their
MTO partners should be valued for its
ability to bring benefit to the ocean
delivery system and, by extension, to
the shipping public in a way that the
transactional relationship between
[BCOs] and [MTOs] cannot.’’ 103 Parties
involved in a continuous commercial
relationship have made an investment
in that relationship and are highly
motivated to timely and effectively
billing is accurate since the motor carrier is not
party to the contractual arrangements and agreed
upon free time. On detention and per diem, since
Motor Carriers are in possession of the containers
under the interchange, they are constantly
surveying the restrictions that exist for return of the
container. However, motor carriers are still not
party to the contract and subsequent free time
agreements and therefore must work with shippers
to determine which contract the shipment was
under and if there was additional free time
available from what was billed. This is another
reason why only billing between contracting parties
should be allowed. Motor carriers are not party to
these contracts and therefore should not be
billed.’’).
101 Supply Chain Innovation Initiative: Final
Report at 3 (Dec. 5, 2017), available at: https://
www.fmc.gov/assets/1/Page/SCITFinalReportreduced.pdf.
102 See e.g., Doc. No. 52 at 8 (‘‘Ports and MTOs
do not bill directly to shippers or cargo owners;
their strongest relationship lies with ocean carriers,
whom they enter into contracts and interface with
daily.’’); Doc. No. 54 at 4 (‘‘Without a contractual
connection between the MTO and the shipper, such
a requirement would be unworkable.’’).
103 Doc. No. 60 at 6. See Doc. No. 72 at 6.

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resolve problems as they arise in order
to maintain a mutually beneficial,
ongoing relationship.
The Commission believes that
prohibiting billing parties from issuing
demurrage and detention invoices to
persons with whom they do not have a
genuine commercial relationship will
similarly benefit the supply chain. If the
billed party has firsthand knowledge of
the terms of its service contract with a
common carrier, then they are in a
better position to ensure that both they
and the carrier are abiding by those
terms. When demurrage or detention
invoice disputes do arise, the billed
party is in a better position than third
parties such as truckers and customs
brokers to analyze the accuracy of the
charge. Further, when the billed party
disputes a charge, they have an existing
commercial relationship with the billing
party and are in a better position to
resolve the dispute.
Practically, the proposed rule would
prohibit billing parties from invoicing
motor carriers or customs brokers. If
adopted, the proposed rule would not
prevent motor carriers from paying on
behalf of the billed party. Although a
motor carrier could pay on behalf of a
billed party, the motor carrier would not
be liable for these charges and could not
be penalized for nonpayment of charges.
Although this arrangement is different
from many of the billing systems
currently employed, it would not be
unprecedented. During Fact Finding
Investigation No. 28, the Commission
sought information on how contractual
relationships, policies, and practices
regarding demurrage and detention in
the United States differ from those in
other maritime nations. The
Commission received information that,
in other nations, VOCCs collect
demurrage and detention charges (often
combined), directly from shippers rather
than motor carriers.104
Under the proposed rule, only the
person who contracted with the
common carrier for the carriage or
storage of goods may be issued an
invoice. The Commission is aware that
there are a variety of shipping
arrangements that allocate risks,
obligations, and costs between the
shipper and the consignee named on the
bill of lading. Considering these
arrangements, the Commission is
specifically seeking comment on
whether it would be appropriate to also
include the consignee named on the bill
of lading as another person who may
104 Fact Finding Investigation No. 28 Final Report
at 3, Fed. Mar. Comm’n (Sep. 4, 2018), available at:
https://www2.fmc.gov/readingroom/docs/
FF%20No.%2028/FF28_int_rpt2.pdf/.

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receive a demurrage or detention
invoice. Including the consignee named
on the bill of lading as an appropriately
billed party for demurrage or detention
charges in the Commission’s proposed
rule would memorialize an existing
industry practice and allow the common
carrier to bill either the person who
contracted for the shipment of the cargo
or consignee named on the bill of
lading.
In sum, the proposed rule should
simplify the current system and ensure
that only the person with the most
knowledge about the shipment and who
is in the best position to understand and
dispute the charge receives a demurrage
or detention invoice. The Commission
views the practice of sending an invoice
to multiple parties involved in the
shipping transaction rather than sending
an invoice for demurrage or detention
charges to only the person that has
contracted with the billing party for the
carriage or storage of goods as
untenable. Therefore, the proposed rule
would prohibit such a practice and
require that only the person that has
contracted with the billing party for the
carriage or storage of goods receive an
invoice for incurred demurrage or
detention charges.

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B. Required Billing Information
In the ANPRM, the Commission
requested comment on the minimum
information that should be required on
billings.105 Specifically, the ANPRM
requested comment on whether it
should require demurrage and detention
invoices to include information
necessary to identify the shipment (bill
of lading number, container number,
etc.); information on how the chargers
were calculated (container availability
date, vessel arrival dates for import
shipments and earliest return date for
export shipments, etc.); and information
on events that justify stopping the clock
on charges (e.g., container
unavailability, lack of return locations,
lack of appointments, other force
majeure reasons).106 An overwhelming
number of commenters supported the
Commission requiring all of the
information listed under Question 6 of
the ANPRM. However, a small number
of commenters opposed such a
requirement. For example, NAWE,
American Association of Port
Authorities, and Port of NY/NJ
Sustainable Services Agreement
commented that some information listed
in the ANPRM may be extremely
burdensome or impossible to
105 87
106 87

FR at 8508–8509.
FR at 8508. See Question 6, 87 FR at 8509.

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provide.107 In addition, Maher believed
that marine terminals should provide
basic information on demurrage charges
but did not support requiring one-sizefits-all billing information.108
OSRA 2022 requires common carriers
to include the following information on
demurrage and detention invoices: the
date that the container is made
available; the port of discharge; the
container number or numbers; for
exported shipments, the earliest return
date; the allowed free time in days; the
start date of free time; the end date of
free time; the applicable detention or
demurrage rule on which the daily rate
is based; the applicable rate or rates per
the applicable rule; the total amount
due; the email, telephone number, or
other appropriate contact information
for questions or requests for mitigation
of fees; a statement that the charges are
consistent with any of Federal Maritime
Commission rules with respect to
detention and demurrage; and a
statement that the common carrier’s
performance did not cause or contribute
to the underlying invoiced charges.109
The proposed rule would require
common carriers and MTOs to include
all the information required in 46 U.S.C.
41104(d)(2), listed above on demurrage
or detention invoices. The proposed
rule also would require billing parties to
include minimum information in
addition to the information listed in 46
U.S.C. 41104(d)(2) to include specific
identifying, timing, rate, and dispute
resolution information, discussed in
detail below. The Commission requests
comments on whether it should require
billing parties to include all the
proposed information in demurrage and
detention invoices. If the commenter
opposes any of the proposed
requirements, they should identify the
information and the obstacles or burden
to including such information on
demurrage or detention invoices. If the
commenter supports the proposed
required information, they should
explain how the specific information
will assist them in verifying the
accuracy of the charge or ascertaining
how the charge was calculated.
1. Identifying Information
Under the proposed rule, the invoice
must contain sufficient information to
enable the billed party to identify the
container(s) to which the charges apply,
including: the bill of lading number(s);
the container number(s); for imports, the
107 Doc. No. 26 at 5; Doc. No. 52 at 7; Doc. No.
68 at 1.
108 Doc. No. 49 at 3.
109 Public Law 117–146 at Sec. 7(a)(2), 136 Stat.
at 1275 (codified at 46 U.S.C. 41104(d)(2)).

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port(s) of discharge; and the basis for
why the invoiced party is the proper
party of interest and thus liable for the
charge. OSRA 2022 requires that
invoices include the port of discharge
and the container number.110 The
proposed rule clarifies that billing
parties must only include ports of
discharge for import shipments because
providing the port of discharge on a
demurrage or detention invoice would
be less useful in the context of export
shipments. The proposed rule would
also require billing parties to include
the bill of lading number and the basis
for why the billed party was invoiced.
Commenters expressed support for
requiring billing parties to include the
container number, bill of lading
number, and basis for why the billed
party is the proper party in interest. The
ANPRM did not request comments on
whether the invoice should include the
port of discharge for import shipments.
a. Bill of Lading Number
The Commission received many
comments in favor of including the bill
of lading number as required
information. Several commenters noted
that without the bill of lading number
it would be difficult to determine which
shipment is being charged and to verify
the accuracy of the charge.111 However,
the Commission received one comment
that opposed such a requirement.
OCEMA stated that the bill of lading
number is not provided to billed parties
that are not party to the transportation
contract because disclosure may present
a risk of violating legal or contractual
non-disclosure requirements.112 In
response to this comment, the
Commission notes that bill of lading
numbers are available through publicly
accessible import and export data
systems, such as PIERS. In addition, the
proposed rule would prohibit the billing
party from issuing demurrage or
detention invoices to a person other
than the person for whose account the
billing party provided ocean
transportation or space to store goods.
Further, commenters observed that
demurrage and detention invoices
already include bill of lading
numbers.113 Because the bill of lading
number provides valuable identifying
information to the billed party, the
Commission proposes requiring this
information on demurrage and
detention invoices.
110 46

U.S.C. 41104(d)(2)(B) and (C).
e.g., Doc. No. 22 at 2.
112 Doc. No. 78 at 4.
113 Doc. No. 52 at 7; Doc. No. 49 at 4.
111 See

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b. Basis for Why Party Was Invoiced
The Commission received numerous
comments asserting that billing parties
issue invoices to multiple parties for the
same charges and this sometimes results
in duplicative payments.114 Many
commenters supported requiring billing
parties to include the basis for why a
party has been invoiced and is thus
liable for the charge. Requiring billing
parties to identify the basis for why
billed parties are liable for the charge
would enable billed parties to confirm
that they are correctly billed the
invoiced charges. The proposed rule is
consistent with proposed § 541.4 that
would prohibit billing parties from
issuing demurrage and detention
invoices to persons other than the
person for whose account the billing
party provided ocean transportation or
space to store goods. Because the
invoice would identify the basis for why
the billed party is liable for the charge,
they would be able to confirm that the
billing party could issue an invoice to
them under proposed § 541.4.

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2. Timing Information
The invoice must contain sufficient
information to enable the billed party to
identify the relevant time for which the
charges apply and the applicable due
date for the invoiced charges, including:
the billing date; the billing due date; the
allowed free time in days; the start date
of free time; the end date of free time;
for imports, the container availability
date; for exports, the earliest return date;
and the specific date(s) for which
demurrage or detention were charged.
OSRA 2022 requires that invoices
include the date the container is made
available; for exported shipments, the
earliest return date; the allowed free
time in days; the start date of free time;
and the end date of free time.115 The
proposed rule clarifies that the billing
parties must only provide container
availability date for import shipments.
The proposed rule would also require
billing parties to specify the dates for
which demurrage and/or detention
charges accrued, the billing date, and
the billing due date.
a. Dates Demurrage or Detention
Charges Accrued
The Commission received numerous
comments in response to the ANPRM
that indicated that invoices should
reflect any ‘‘clock-stopping’’ events that
would prevent the return of equipment,
such as container unavailability or lack
114 See e.g., Doc. No. 13 at 5–6; Doc. No. 15 at
3; Doc. No. 18 at 2; Doc. No. 19 at 2; Doc. No. 37
at 2; Doc. No. 28 at 2.
115 46 U.S.C. 41104(d)(2)(A), (E)–(G).

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of return locations or appointment
times.116 OCEMA, however, opposed
such a requirement and stated that this
type of information is not always known
at the time of invoicing and would
therefore pose a risk of delaying the
payment process and disrupt the flow of
cargo.117 Further, OCEMA asserted that
information such as container and
appointment availability are sourced
from third party systems and therefore
the timing and feasibility of providing
this information is unknown.118 WSC
noted that carriers do not have visibility
to such ‘‘clock-stopping’’ events and
that shippers or motor carriers are more
aware of challenges to container pick-up
and drop-off.119 Maher also commented
that it does not provide ‘‘clock-stopping
events’’ on their invoices because of the
cost and administrative burden to
providing such information.120
Instead of requiring billing parties to
identify specific ‘‘clock-stopping’’
events on demurrage and detention
invoices, the proposed rule would
require the billing party to identify the
specific dates on which they charged
demurrage or detention. The proposed
rule permits billing parties to take into
account any intervening events that
affected the charges, if known, and
enables billed parties to confirm or
dispute the validity of charges on
specific dates. The proposed rule
incorporates the intent of OSRA 2022 to
shift the burden to billing parties to
justify the demurrage or detention
charges while allowing billing parties to
correct invoices when the intervening
events are not initially known to them.
b. Billing Date and Payment Due Date
The proposed rule would require the
billing party to include the invoice
billing date and payment due date. The
proposed requirement to include the
billing date and the payment due date
will enable the billed party and the
Commission to confirm that the billing
parties are adhering to the proposed
billing practices outlined in proposed
§ 541.7. If the billed party has the billing
date information, they can confirm that
the billed party issued the invoice
within 30 days from when the charge
was last incurred. In addition, providing
the payment due date would notify the
billed party of when they must pay the
invoiced charges.
116 See e.g., Doc. No. 13 at 5; Doc. No. 14 at 2;
Doc. No. 15 at 2; Doc. No. 16 at 2; Doc. No. 17 at
2; Doc. No. 18 at 2; Doc. No. 19 at 2; Doc. No. 21
at 3; Doc. No. 29 at 2; Doc. No. 30 at 1; Doc. No.
44 at 2; Doc. No. 83 at 2.
117 Doc. No. 78 at 5.
118 Doc. No. 78 at 5.
119 Doc. No. 61 at 7.
120 Doc. No. 49 at 4.

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3. Rate Information
The invoice must contain sufficient
information to enable the billed party to
identify the amount due and readily
ascertain how that amount was
calculated, including: the total amount
due; the applicable detention or
demurrage rule (i.e., the tariff name and
rule number or applicable service
contract number and section) on which
the daily rate is based; and the specific
rate or rates per the applicable tariff rule
or service contract. The proposed rule
incorporates the rate information
requirements contained in OSRA
2022.121 It also clarifies that when
billing parties provide the applicable
detention or demurrage rule on which
the daily rate is based, the billing party
should provide sufficient detail so that
the billed party is able to locate the
specific rate that should apply and
confirm that the invoice includes the
correct rate. Under the proposed rule,
demurrage and detention invoices
would include information necessary to
ascertain the rate that the billing party
applied, grounds for applying that rate,
dates for which the billing party charged
the rate, and the total amount due. This
enhanced transparency will enable
billed parties to efficiently confirm the
charges and decide whether to dispute
the invoiced charges.
A commenter expressed concern that
providing the applicable detention or
demurrage rule on which the daily rate
is based could ‘‘undermine service
contract confidentiality.’’ 122 However,
because the proposed rule would
prohibit billing parties from issuing a
demurrage or detention invoice to a
person other than the person for whose
account the billing party provided ocean
transportation or space to store goods,
the billed party is already privy to the
confidential contract or negotiated
terms, including the specific agreed
upon rate.
4. Dispute Information
Under the proposed rule, the invoice
must contain sufficient information to
enable the billed party to readily
identify a contact to whom they may
direct questions or concerns related to
the invoice and understand the process
to request fee mitigation, refund, or
waiver. The proposed rule would
require the invoice to include: an email,
telephone number, or other appropriate
contact information for questions or
request for fee mitigation, refund, or
waiver; an URL address of a publiclyaccessible portion of the billing party’s
website that provides a detailed
121 46

U.S.C. 41104(d)(2)(H)–(J).
No. 61 at 5.

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description of information or
documentation that the billed party
must provide to successfully request fee
mitigation, refund, or waiver; and
defined timeframes that comply with
the billing practices in this part, during
which the billed party must request fee
mitigation, refunds, or waivers and
within which the billing party will
resolve such requests. OSRA 2022
requires that the invoice include contact
information for questions or requests for
mitigation of fees.123 The proposed rule
would also require that the invoice
include the URL address where billed
parties can obtain a detailed description
of the information or documentation
that must be provided with a request for
fee mitigation, refunds, or waivers. In
addition, the proposed rule would
require that the invoice provide defined
timeframes by which the billed party
must request fee mitigation, refunds, or
waivers, and the timeframe by which
the billing party would resolve such
requests.
a. Website Address That Describes
Information Required for Dispute
Resolution
The proposed regulation would
require the invoice to provide the URL
address of a publicly-accessible portion
of the billing party’s website that
describes the information that the billed
party must provide to successfully
request fee mitigation, refund, or
waiver. Commenters indicated that
shippers lack awareness regarding what
information they should include when
they request fee mitigation, refunds, or
waivers.124 Knowing what information
or documentation must be filed with
requests for fee mitigation, refunds, and
waivers, will improve efficiency within
the dispute process. Parties will not
need to exchange communications that
inform billed parties what information
to include with their requests, notify
billed parties that they did not file all
the required information, or supplement
pending requests with additional
information. In addition, awareness of
what information must be provided
with any request for fee mitigation,
refund, or waiver, will enable billed
parties to collect the necessary
information and decrease the number of
requests denied on technicalities.
The Commission acknowledges that a
billing party should require the same
information to be submitted with
requests for fee mitigation, refund, or
waiver, regardless of which billed party
123 46

U.S.C. 41104(d)(2)(K).
e.g., Doc. No. 8 at 3; Doc. No. 13 at 7; Doc.
No. 41 at 4; Doc. No. 43 at 5; Doc. No. 53 at 5; Doc.
No. 65 at 5; Doc. No. 61 at 10; Doc. No. 63 at 4;
Doc. No. 64 at 7; Doc. No. 67 at 6.
124 See

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is making the request. Thus, it is not
necessary to include a detailed
description of information or documents
that the billed party must provide to
successfully request a fee mitigation,
refund, or waiver on each individual
demurrage or detention invoice.
However, it is important that billed
parties can easily locate this
information. To ensure that billed
parties are able to find this vital
information, the proposed rule would
require the invoice to include the URL
address for a publicly-accessible portion
of the billing party’s website that
describes the required information. The
Commission encourages billing parties
to provide a URL address that is specific
(i.e., providing the billing party’s
homepage when there is no clear
indication where this information can
be found would be insufficient).
b. Defined Timeframes
The proposed rule would also require
the invoice to include specific
timeframes within which the billed
party must submit a fee mitigation,
refund, or waiver request and for when
the billing party will resolve such
requests. This proposed rule would
require the timeframes to comply with
the proposed billing practices in
§§ 541.7 and 541.8. As a result,
demurrage or detention invoices would
notify the billed party of these key
timeframes and required billing
practices and the billed party would not
need to be familiar with the
Commission’s regulations to know these
key dates.
5. Certifications
Under the proposed rule, the invoice
must contain a statement from the
billing party that the demurrage or
detention charge is consistent with any
of the Commission’s rules related to
demurrage and detention, including the
proposed rule and 46 CFR 545.5.125 In
addition, the proposed rule would
require the invoice to include a
statement from the billing party that
their performance did not cause or
contribute to the underlying invoiced
charges. OSRA 2022 requires billing
parties to include both statements on
demurrage and detention invoices.126
The proposed rule would incorporate
these required statements. In addition,
the proposed rule clarifies that the
Commission’s rules related to
demurrage and detention include the
proposed rule and the interpretive rule
on demurrage and detention at 46 CFR
545.5. Although the ANPRM did not
125 46
126 46

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request comments on whether billing
parties include such statements on
demurrage and detention invoices,
several commenters supported requiring
such statements or similar
statements.127
C. Billing Practices
1. 30-Day Timeframe To Issue
Demurrage or Detention Invoices
In the ANPRM, the Commission noted
concerns from stakeholders regarding
the lack of clearly defined timeframes
for the issuance of demurrage or
detention invoices.128 In Docket No. 19–
05, several commenters asserted that
billing parties should issue demurrage
or detention invoices within specific
timeframes.129 When issuing the
Interpretive Rule in May 2020, the
Commission determined not to take
action regarding deadlines for
demurrage or detention invoices but
stated that it reserved the right to
address the issue at a later date.130
In the ANPRM, the Commission
stated that it continued to receive
reports of delays in receiving demurrage
or detention invoices and the
difficulties in validating the accuracy of
the charges contained in invoices
received months after the occurrence of
the charges.131 The Commission
requested comments on whether it
should require billing parties issue
demurrage or detention invoices within
60 days of the occurrence of the charge,
noting that this approach would align
with the UIIA.132 Specifically, the
Commission stated that it was interested
in whether the UIIA timeframe is
effective and whether a longer or shorter
deadline would be appropriate.133
Many commenters responded to the
question of whether the Commission
should require that billing parties issue
demurrage or detention invoices within
60 days of when the charge stops
accruing. Four commenters opposed
requiring billing parties issue a
demurrage or detention invoice within a
specified timeframe.134 Two
commenters, WSC and OCEMA,
asserted that the Commission should
127 See e.g., Doc. No. 75 at 3; Doc. No. 43 at 5;
Doc. No. 77 at 5; Doc. No. 69 at 5; Doc. No. 84 at
4.
128 87 FR at 8508.
129 85 FR at 29662.
130 85 FR at 29662.
131 87 FR at 8508.
132 87 FR at 8508.
133 87 FR at 8508.
134 Doc. No. 61 at 9–10; Doc. No. 26 at 7; Doc.
No. 68 at 1 (incorporates NAWE Comments); Doc.
No. 78 at 6–7. WSC and OCEMA are associations
that represent ocean common carriers. See Doc. No.
78 at 1. NAWE and PONYNJSSA are associations
that represent marine terminal operators. Doc. No.
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not regulate when billing parties issue
demurrage or detention invoices
because these timeframes should be set
by contractual terms or commercial
negotiations.135 If, however, the
Commission decides to require billing
parties to issue demurrage or detention
invoices within a specific timeframe,
WSC and OCEMA stated the timeframe
should be no shorter than 60 days.136 In
addition, both WSC and OCEMA noted
that any such timeframe for issuing
demurrage or detention invoices should
allow for nuanced application of the
deadline.137 For example, both parties
raised questions regarding how the
deadline would apply to third-parties
that pass through demurrage and
detention charges.138
NAWE asserted that it is unnecessary
for the Commission to regulate
timeframes for billing parties, especially
MTOs, to issue demurrage or detention
invoices.139 Specifically, NAWE
observed that most MTOs use electronic
data interchanges and electronic
payment methods and are able to
‘‘invoice’’ demurrage or detention
charges immediately after these charges
stop accruing.140 Because there are no
delays for such MTOs in issuing
demurrage or detention invoices, NAWE
commented that there is no need for
such regulations with regard to
MTOs.141
The remaining commenters supported
mandating a deadline within which a
billing party must issue a demurrage or
detention invoice. These include
comments submitted by a customs
broker; 10 motor carriers and motor
carrier organizations; 142 14 OTI and OTI
organizations; 143 31 BCOs and BCO
trade organizations; 144 and five with
unknown affiliations.145
These commenters cited several
reasons in support of an invoice
135 Doc.

No. 61 at 9–10; Doc. No. 78 at 6–7.
No. 61 at 10; Doc. No. 78 at 7.
137 Doc. No. 61 at 10; Doc. No. 78 at 7.
138 Doc. No. 61 at 10; Doc. No. 78 at 7.
139 Doc. No. 26 at 7.
140 Doc. No. 26 at 7.
141 Doc. No. 26 at 7.
142 See Doc. No. 51; Doc. No. 56; Doc. No. 46;
Doc. No. 56; Doc. No. 7; Doc. No. 15; Doc. No. 24;
Doc. No. 33; Doc. No. 47; Doc. No. 17.
143 See Doc. No. 13; Doc. No. 75; Doc. No. 70;
Doc. No. 82; Doc. No. 69; Doc. No. 83; Doc. No. 60;
Doc. No. 62; Doc. No. 19; Doc. No. 77; Doc. No. 48;
Doc. No. 76; Doc. No. 63, Doc. No. 81.
144 See Doc. No. 79; Doc. No. 3; Doc. No. 67; Doc.
No. 6; Doc. No. 14; Doc. No. 8; Doc. No. 30; Doc.
No. 38; Doc. No. 34; Doc. No. 22; Doc. No. 40; Doc.
No. 42; Doc. No. 66; Doc. No. 37; Doc. No. 72; Doc.
No. 71; Doc. No. 44; Doc. No. 21; Doc. No. 28; Doc.
No. 41; Doc. No. 43; Doc. No. 64; Doc. No. 33; Doc.
No. 53; Doc. No. 54; Doc. No. 65; Doc. No. 55; Doc.
No. 58; Doc. No. 73; Doc. No. 35; Doc. No. 84.
145 See Doc. No. 9; Doc. No. 18; Doc. No. 27; Doc.;
Doc. No. 32.

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deadline. For example, several
commenters asserted that having a
deadline will provide billed parties with
predictability and transparency
regarding when they will receive their
invoices.146 In the ANPRM, the
Commission requested information on
how long it typically takes to receive a
demurrage or detention invoice.147
Responses to this question vary greatly.
For example, some commenters stated
that billed parties receive demurrage or
detention invoices within several days
after the charges stop accruing.148 Other
commenters claimed that it may take
between 2–4 weeks to receive
demurrage or detention invoices.149
Most commenters however, stated that
the time varies greatly and could range
from 30 days to 24 months.150 For
example, the Meadows Group reported
that it received demurrage and
detention invoices an average of 120
days after the charge accrued, but that
it also received invoices 24 months after
the fact.151 In addition, National
Association of Manufacturers (NAM)
stated that its members report a wide
range of invoice delivery times, from as
short as 30 days to as long as nearly 24
months.152 In addition, commenters
noted that the time it takes for a billing
party to issue a demurrage or detention
invoice varies on the charges assessed.
For example, one commenter stated that
billing parties invoice import demurrage
before releasing containers, but that
billing parties may take as long as 30
days to invoice export demurrage
charges and 60 days to invoice import
and export detention charges.153
In addition to providing transparency
and predictability for when billing
parties must issue demurrage or
detention invoices, commenters noted
146 Doc. No. 67 at 5; Doc. No. 24 at 4; Doc. No.
83 at 3; Doc. No. 62 at 5; Doc. No. 8 at 2–3.
147 87 FR at 8509.
148 Doc. No. 19 at 3; Doc. No. 37 at 3; Doc. No.
26 at 4; Doc. No. 49 at 5.
149 Doc. No. 18 at 3; Doc. No. 25 at 2; Doc. No.
32 at 3; Doc. No. 44 at 4; Doc No. 14 at 3.
150 Doc. No. 17 at 3 (3–6 months); Doc. No. 22 at
3 (120-day average, but have received invoices 24
months after); Doc. No. 33 at 9 (average is 30–60
days, but sometimes up to six months); Doc. No. 28
at 3 (average of 30–60 days but sometimes up to six
months); Doc. No. 48 at 6 (members received
invoices 180 days after a transaction took place);
Doc. No. 54 at 4 (takes up to 6 months to receive
an invoice); Doc. No. 55 at 2 (up to 24 months); Doc.
No. 53 at 5 (averages 60–90 days, but as long as 8
months); Doc. No. 67 at 2, 5 (typically receive
billings within 30 days, but sometimes 60 days or
more); Doc. No. 3 at 3 (averaging 6–12 months). See
Doc. No. 27 at 3; Doc. No. 46 at 2; Doc. No. 41 at
4.
151 Doc. No. 22 at 3
152 Doc. No. 55 at 2.
153 Doc. No. 9 at 3; see Doc. No. 39 at 2; Doc. No.
56 at 2; Doc. No. 67 at 3; Doc. No. 60 at 8; Doc.
No. 65 at 5; Doc. No. 64 at 6.

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that an invoicing deadline will ensure
that billed parties will have the
information readily available to verify
the accuracy of the charges.154
Similarly, many commenters claimed
that timely billing will reduce costly
and time-consuming research to verify
charges, particularly when received
months after the fact.155 NAM explains
that shippers and BCOs regularly
receive costly bills months after the fact
and that responding to such bills require
diverting staff hours and attention away
from cargo delivery and efficient
logistics operations.156 Furthermore,
NAM asserted that instituting an invoice
deadline will ‘‘ensure that shippers and
BCOs will be able to accurately
maintain shipping information and
records to validate any demurrage or
detention bills[.]’’ 157
Most commenters agreed that billing
parties should issue demurrage or
detention invoices within a specific
timeframe but disagreed on what that
timeframe should be. Three commenters
did not indicate a specific deadline in
their comments but stressed the need for
a timeliness standard.158 Among the
remaining commenters, 23 commenters
supported a 60-day timeframe; 159 25
commenters supported a 30-day
timeframe; 160 and 11 commenters
favored shorter timeframes ranging from
five to twenty-one days.161
154 Doc. No. 67 at 5; Doc. No. 58 at 3; Doc. No.
22 at 3; Doc. No. 84 at 4–5; Doc. No. 28 at 3.
155 Doc. No. 13 at 7; Doc. No. 3 at 2; Doc. No. 54
at 5; Doc. No. 58 at 3; Doc. No. 55 at 2; Doc. No.
53 at 5; Doc. No. 65 at 4; Doc. No. 79 at 4.
156 Doc. No. 55 at 2.
157 Doc. No. 55 at 2.
158 Doc. No. 51 at 2; Doc. No. 34 at 2; Doc. No.
35 at 2.
159 Doc. No. 76 at 7; Doc. No. 65 at 5; Doc. No.
54 at 4; Doc. No. 39 at 2; Doc. No. 46 at 2; Doc.
No. 32 at 2; Doc. No. 33 at 9; Doc. No. 9 at 3; Doc.
No. 24 at 4; Doc. No. 81 at 4; Doc. No. 44 at 4; Doc.
No. 58 at 3; Doc. No. 55 at 2; Doc. No. 43 at 5; Doc.
No. 56 at 2; Doc. No. 53 at 5; Doc. No. 22 at 3; Doc.
No. 37 at 3; Doc. No. 48 at 6; Doc. No. 28 at 3; Doc.
No. 63 at 4; Doc. No. 8 at 3; Doc. No. 17 at 4.
160 Doc. No. 3 at 2–3; Doc. No. 6 at 2; Doc. No.
7 at 4; Doc. No. 13 at 7; Doc. No. 14 at 4; Doc. No.
15 at 3; Doc. No. 29 at 3; Doc. No. 30 at 2; Doc.
No. 40 at 3; Doc. No. 42 at 1 (citing Doc. No. 29);
Doc. No. 47 at 3; Doc. No. 67 at 3; Doc. No. 66 at
1 (citing Doc. No. 29); Doc. No. 83 at 5; Doc. No.
60 at 8; Doc. No. 62 at 5; Doc. No. 64 at 6; Doc.
No. 67 at 4–5; Doc. No. 72 at 7; Doc. No. 71 at 1
(citing Doc. No. 29); Doc. No. 75 at 3, 4; Doc. No.
70 at 5; Doc. No. 84 at 5; Doc. No. 82 at 2. Many
of these commenters supported shorter timeframes
as well. See Doc. No. 70 (supported 7 days); Doc.
No. 60 at 8 (supported 5–15 days); Doc. No. 72 at
7 (supported 5–15 days); Doc. No. 64 at 6
(supported 14 days); Doc. No. 75 at 4 (supported 15
days); Doc. No. 82 at 2 (supported 21 days).
161 Doc. No. 27 at 3 (5–10 days); Doc. No. 38 at
4 (10 days); Doc. No. 73 at 3–4 (10 days); Doc. No.
41 at 4 (10 days); Doc. No. 18 at 3 (10 days); Doc.
No. 79 at 4 (10–14 days); Doc. No. 56 at 2–3 (14
days); Doc. No. 69 at 5, 7 (14 days); Doc. No. 77

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Two commenters who supported the
60-day timeframe stated that this
timeframe is reasonable and aligns with
the UIIA timeframe.162 For example,
Intermodal Association of North
America (IANA) asserted that the 60-day
timeframe provided in the UIIA
represents an industry standard because
this requirement has been in effect for
over 25 years.163 Additionally, IANA
opined that adopting the 60-day
timeframe ‘‘will reinforce, rather than
disrupt, long-standing industry
practices.’’ 164 However, many
commenters who supported the 60-day
timeframe also urged the Commission to
consider shorter timeframes.165
Many commenters also supported an
invoice deadline shorter than 60 days
for a variety of reasons. For example,
commenters asserted that 60 days is too
long and that, with billing parties using
automated systems, 30 days is more
than adequate time for billing parties to
issue demurrage or detention
invoices.166 Moreover, commenters
observed that several billing parties
currently issue invoices within 30 days
after the charges stop accruing.167 In
addition, OTI commenters stated that
receiving demurrage and detention
invoices from VOCCs and MTOs in a
timely manner will allow OTIs to bill
their clients within a reasonable
timeframe which will hopefully
facilitate collection of these charges.168
The Commission is proposing to
require billing parties to issue
demurrage or detention invoices to
billed parties within 30 days from the
date charges stop accruing. Although
the proposed 30-day timeframe is
shorter than the 60-day timeframe
contained in the UIIA, commenters
reported that demurrage or detention
invoices generally arrive within the 30day timeframe.169 For example, MTOs
at 7 (14–21 days); Doc. No. 21 at 3–4 (15 days); Doc.
No. 19 at 3 (21 days).
162 Doc. No. 43 at 5; Doc. No. 24 at 3.
163 Doc. No. 24 at 3.
164 Doc. No. 24 at 4.
165 Doc. No. 65 at 5; Doc. No. 54 at 4; Doc. No.
81 at 4; Doc. No. 28 at 3.
166 Doc. No. 29 at 2; Doc. No. 30 at 2; Doc. No.
38 at 4; Doc. No. 67 at 3; Doc. No. 73 at 4; Doc.
No. 40 at 3; Doc. No. 56 at 3. See Doc. No. 60 at
8.
167 See Doc. No. 29 at 2–3 (immediate billing is
an industry standard for the perishable produce
industry). See also Doc. No. 67 at 5; Doc. No. 30
at 2; Doc. No. 40 at 3; Doc. No. 38 at 4. Commenters
report that they receive demurrage or detention
invoices several days to one month after charges
stop accruing. Doc. No. 19 at 3; Doc. No. 37 at 3;
Doc. No. 26 at 4; Doc. No. 49 at 5; Doc. No. 18 at
3; Doc. No. 25 at 2; Doc. No. 32 at 3; Doc. No. 44
at 4; Doc. No. 14 at 3.
168 Doc. No. 32 at 3; Doc. No. 69 at 5; Doc. No.
70 at 3, 5; Doc. No. 76 at 7; Doc. No. 77 at 5.
169 Doc. No. 29 at 2–3; Doc. No. 67 at 5; Doc. No.
30 at 2; Doc. No. 40 at 3; Doc. No. 38 at 4; Doc.

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indicated that, because of customer
portals and electronic payment systems,
invoices are available immediately
when the charges stop accruing.170
Because it appears that billing parties
are capable of issuing demurrage or
detention invoices, on average, within
30 days, applying this timeframe does
not appear to be unreasonable. In
addition, a 30-day deadline, which
provides billing parties sufficient time
to prepare an invoice, will also permit
billed parties to verify the charges more
efficiently. As commenters noted, the
more time that passes between when the
charges stop accruing and when the
billed party receives an invoice, it is
more difficult for the billed party to
verify the charge because it is less likely
that they have the necessary information
or documentation to confirm a charge.
The Commission also proposes to
excuse billed parties from paying
assessed charges contained in invoices
issued after the 30-day timeframe. If a
billing party does not issue a demurrage
or detention invoice within the required
timeframe, then the charge would be
void and the billed party would not be
required to pay. Without such a
provision, there would be no
consequence for not meeting the 30-day
timeframe. In addition, this proposed
rule is consistent with the UIIA and
supported by commenters.171
The 30-day timeframe would apply to
VOCCs, MTOs, and NVOCCs. In the
ANPRM, the Commission requested
comments on whether the Commission
should require different timeframes for
VOCC and NVOCC demurrage and
detention invoices.172 Most commenters
responded that the same timelines
should apply to VOCCs and NVOCCs.173
However, when NVOCCs pass through
demurrage or detention charges assessed
against them to their customers, it may
be difficult for NVOCCs to issue a
demurrage or detention invoice within
the required timeframe if it does not
receive the initial invoice in a timely
manner.174 In addition, OCEMA
suggested that the invoice deadlines
should ‘‘allow nuance in the application
of the deadline for factors that may
No. 19 at 3; Doc. No. 37 at 3; Doc. No. 26 at 4; Doc.
No. 49 at 5; Doc. No. 18 at 3; Doc. No. 25 at 2; Doc.
No. 32 at 3; Doc. No. 44 at 4; Doc. No. 14 at 3.
170 Doc. No. 26 at 7; Doc. No. 49 at 4.
171 UIIA at E.6.c; Doc. No. 84 at 5; Doc. No. 77
at 7; Doc. No. 69 at 5, 7; Doc. 75 at 4; Doc. No. 43
at 5.
172 87 FR at 8509.
173 Doc. No. 3 at 2; Doc. No. 41 at 3; Doc. No. 64
at 5; Doc. No. 28 at 2; Doc. No. 43 at 4; Doc. No.
53 at 4; Doc. No. 51 at 2; Doc. No. 80 at 1; Doc.
No. 61 at 8; Doc. No. 15 at 2; Doc. No. 22 at 3; Doc.
No. 46 at 2.
174 See Doc. No. 32 at 3; Doc. No. 69 at 5; Doc.
No. 70 at 3, 5; Doc. No. 76 at 7; Doc. No. 77 at 5.

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justify delay[.]’’ 175 The Commission
requests comments discussing how it
can best reflect the application of the
deadline to NVOCCs that pass through
demurrage or detention charges.
2. Timeframes for Disputing Charges
and Resolving Disputes
The Commission proposes that billed
parties submit any requests for fee
mitigation, refund, or waiver to billing
parties within 30 days of receiving a
demurrage or detention invoice.176 The
proposed rule would provide billed
parties 30 days to verify the invoiced
charges; decide whether they would like
to request fee mitigation, refund, or
waiver; and collect the documentation
to support its request. The proposed
timeframe protects billed parties against
unreasonable deadlines that billing
parties may impose upon their
customers. At the same time, the 30-day
dispute timeframe would notify billed
parties that, if they plan to request fee
mitigation, refund, or waiver, they have
a limited amount of time within which
they must submit such a request and it
would protect billing parties from
untimely requests.
The 30-day timeframe for disputing
charges is consistent with the timeframe
for billed parties to dispute charges in
the UIIA and is supported by
commenters.177 One commenter
suggested extending the current dispute
deadline from 30 to 60 days to allow
carriers more time to audit and pay per
diem invoices accordingly.178 The
Commission is proposing this timeframe
in conjunction with its proposed 30-day
timeframe for billing parties to issue
demurrage or detention invoices.
Because the proposed rules would
require billing parties to issue invoices
in a timelier manner, one anticipated
benefit is that billed parties would be
able to more quickly verify the charges
as the documents necessary to confirm
the charges would be more readily
available. Accordingly, in the
Commission’s view, the 30-day
timeframe is a reasonable one that
permits billed parties to review the
charges and request fee mitigation,
refund, or waiver as necessary that they
can meet readily.
175 Doc. No. 78 at 7. See Doc. No. 13 at 4; Doc.
No. 61 at 10.
176 The proposed 30-day deadline would apply to
requests for fee mitigation, refunds, or waivers
submitted by the billed party to the billing party
through the billing parties’ dispute process. The
proposed rule does not apply to ‘‘charge
complaints’’ authorized by section 10 of OSRA 2022
(codified in 46 U.S.C. 41310).
177 UIIA at E.6.f; Doc. No. 84 at 4; Doc. No. 64
at 7; Doc. No. 43 at 5.
178 Doc. No. 59 at 2.

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The Commission proposes that, after
receiving a fee mitigation, refund, or
waiver request, a billing party must
resolve the request within 30 days. This
proposed deadline is consistent with the
response deadline contained in the UIIA
and supported by several
commenters.179 The proposed rule
would require a billing party, after
receiving a request to mitigate, refund,
or waive a charge on a demurrage or
detention invoice, to determine whether
to grant or deny the request within 30
days of receiving the request. Resolution
of a request also includes billing parties
to mitigate, refund, or waive a charge, if
appropriate, within the 30-day
timeframe. If the billing party does not
resolve the fee mitigation, refund, or
waiver request within 30 days, then the
charge at issue must be mitigated,
refunded, or waived.
The proposed deadline would provide
billed parties with certainty that it will
receive a response to its fee mitigation,
refund, or waiver request within a
specific timeframe. Like receiving
demurrage or detention invoices,
commenters reported that the time it
takes for billed parties to receive a
refund varies greatly. For example, one
commenter claimed that ‘‘[r]efunds are
paid when the carrier or terminal
operator wants to do it’’ and that it can
take up to six months to receive a
refund.180 Commenters generally
supported having a deadline for
resolving requests for fee mitigation,
refund, or waiver. As one commenter
succinctly stated, ‘‘just as bills must be
paid within a certain amount of time, it
seems only fair that refunds should be
issued within a set time frame.’’ 181 In
that vein, proposing to require billing
parties to resolve requests for fee
mitigation, refunds, or waivers within
30 days of receipt ensures that such
requests are not pending for an
indefinite period of time.
179 UIIA at H.1; Doc. No. 63 at 4; Doc. No. 43 at
5; Doc. No. 64 at 7; Doc. No. 41 at 4; Doc. No. 54
at 5; Doc. No. 33 at 11; Doc. No. 74 at 5. See Doc.
No. 25, Attachment at 1 (states that the company
aspires to address disputes within 30 days). Several
commenters supported shorter timeframes;
however, it appears that these commenters were
discussing timeframes for when billing parties
should issue refunds after they dismiss the charges
at issue. See Doc. No. 39 at 3; Doc. No. 69 at 8; Doc.
No. 46 at 3; Doc. No. 84 at 5; Doc. No. 75 at 5; Doc.
No. 79 at 4; Doc. No. 3 at 3; Doc. No. 72 at 8; Doc.
No. 60 at 9; Doc. No. 28 at 3; Doc. No. 21 at 4.
180 Doc. No. 77 at 8. See Doc. No. 33 at 11; see
also Doc. No. 22 at 4 (typically takes six months to
receive a refund, may take as long as two years).
181 Doc. No. 51 at 4. See Doc. No. 44 at 4
(‘‘[r]efunds should be issued in a timely manner,
certainly within a specified number of days’’).

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V. Public Participation
How do I prepare and submit
comments?
You may submit comments by using
the Federal eRulemaking Portal at
www.regulations.gov, under Docket No.
2022–0066, Demurrage and Detention
Billing Requirements. Please follow the
instructions provided on the Federal
eRulemaking Portal to submit
comments.
How do I submit confidential business
information?
The Commission will provide
confidential treatment for identified
confidential information to the extent
allowed by law. If you would like to
request confidential treatment, pursuant
to 46 CFR 502.5, you must submit the
following, by email, to secretary@
fmc.gov:
• A transmittal letter that identifies
the specific information in the
comments for which protection is
sought and demonstrates that the
information is a trade secret or other
confidential research, development, or
commercial information.
• A confidential copy of your
comments, consisting of the complete
filing with a cover page marked
‘‘Confidential-Restricted,’’ and the
confidential material clearly marked on
each page.
• A public version of your comments
with the confidential information
excluded. The public version must state
‘‘Public Version—confidential materials
excluded’’ on the cover page and on
each affected page and must clearly
indicate any information withheld.
Will the Commission consider late
comments?
The Commission will consider all
comments received before the close of
business on the comment closing date
indicated above under DATES. To the
extent possible, we will also consider
comments received after that date.
How can I read comments submitted
by other people?
You may read the comments received
by the Commission at
www.regulations.gov, under Docket No.
2022–0066, Demurrage and Detention
Billing Requirements.
VI. Rulemaking Analyses
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5
U.S.C. 601–612, provides that whenever
an agency is required to publish a notice
of proposed rulemaking under the
Administrative Procedure Act (APA), 5
U.S.C. 553, the agency must prepare and
make available for public comment an

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initial regulatory flexibility analysis
(IRFA) describing the impact of the
proposed rule on small entities, unless
the head of the agency certifies that the
rulemaking will not have a significant
economic impact on a substantial
number of small entities. 5 U.S.C. 603,
605.
The proposed rule would require
VOCCs, NVOCCs, and MTOs to
including minimum billing information
on detention and demurrage invoices.
The rulemaking additionally requires
billing parties that issue demurrage and
detention invoices to follow certain
billing practices; specifically, billed
parties must issue demurrage and
detention invoices within 30 days from
when charges stop accruing.
The Commission presumes that
VOCCs and MTOs generally do not
qualify as small entities under the
guidelines of the Small Business
Administration (SBA).182 The
Commission previously stated that
VOCCs and MTOs generally are large
companies that exceed the employee
(500) and/or annual revenue ($21.5
million) thresholds to be considered
small business entities. However, the
Commission presumes that NVOCCs are
small business entities.
There are likely two types of costs
imposed by the proposed rulemaking on
the affected businesses. The imposition
of a 30-day deadline to issue an invoice
from when demurrage and detention
charges stop accruing could result in a
loss of revenue to the billing party. In
additional, the minimum billing
information requirements imposed by
the proposed rule may require the
billing party to collect additional
information and change its billing
information technology system to
include all the required information on
invoices.
Most of the costs of the rulemaking
will be borne by VOCCs and MTOs as
they generally assess demurrage and
detention charges, and not NVOCCs. As
discussed above, in most cases,
NVOCCs pass through detention and
demurrage charges billed to them on
invoices generated by VOCCs or MTOs.
Accordingly, NVOCCs should receive
the minimum billing information
required by the proposed rule from
either the VOCC or MTO issuing the
invoice. For these reasons, the Chairman
of the Federal Maritime Commission
certifies that if this rule is promulgated,
it would not have a significant
182 FMC Policy and Procedures regarding Proper
Consideration of Small Entities in Rulemakings
(Feb. 7, 2003), available at: https://www.fmc.gov/
wp-content/uploads/2018/10/SBREFA_Guidelines_
2003.pdf.

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economic impact on a substantial
number of small entities.

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National Environmental Policy Act
The National Environmental Policy
Act of 1969 (NEPA) (42 U.S.C. 4321–
4347) requires Federal agencies to
consider the environmental impacts of
proposed major Federal actions
significantly affecting the quality of the
human environment, as well as the
impacts of alternatives to the proposed
action. When a Federal agency prepares
an environmental assessment, the
Council on Environmental Quality
(CEQ) NEPA implementing regulations
(40 CFR parts 1500 through 1508)
require the Federal agency to ‘‘include
brief discussions of the need for the
proposal, of alternatives [. . .], of the
environmental impacts of the proposed
action and alternatives, and a listing of
agencies and persons consulted.’’ 40
CFR 1508.9(b). This section serves as
the Commission’s Draft Environmental
Assessment (Draft EA) for the proposed
changes to 46 CFR part 541.
Upon completion of an environmental
assessment, it was determined that the
proposed rule will not constitute a
major Federal action significantly
affecting the quality of the human
environment within the meaning of the
National Environmental Policy Act of
1969, 42 U.S.C. 4321 et seq., and that
preparation of an environmental impact
statement is not required. This Finding
of No Significant Impact (‘‘FONSI’’) will
become final within 10 days of
publication of this notice in the Federal
Register unless a petition for review is
filed by any of the methods described in
the ADDRESSES section of the document.
The FONSI and environmental
assessment are available for inspection
on the docket at https://
www.regulations.gov.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. 3501–3521) (PRA) requires an
agency to seek and receive approval
from the Office of Management and
Budget (OMB) before collecting
information from the public. The agency
must submit collections of information
in proposed rules to OMB in
conjunction with the publication of the
notice of proposed rulemaking. In
compliance with the PRA, the
Commission has submitted the
proposed information collection to the
Office of Management and Budget and
is requesting comment on the proposed
revision.
With the proposed addition of 46 CFR
part 541, the Commission has identified
specific billing information required on
demurrage and detention invoices.

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Although some entities issue demurrage
and detention invoices that contain
most of the required information, many
entities will likely need to revise their
practices to include the required
information. The Commission believes
that the addition of 46 CFR part 541 will
likely increase the overall industry
burden, but that it will not have a
significant impact on members of the
shipping public.
Title: 46 CFR Part 541—Demurrage and
Detention Billing Requirements
OMB Control Number: 3072–XXXX.
Abstract: 46 U.S.C. 41104(a)(15) and
(d)(2) and 46 CFR part 541 subpart A,
if adopted, require demurrage and
detention invoices to contain certain
additional information to increase
transparency so that billed parties can
identify the containers at issue, the
applicable rate, dates for which charges
accrued, and how to dispute charges.
Further, 46 U.S.C. 41104(d)(2) and 46
CFR part 541, if adopted, also require
demurrage and detention invoices to
certify that the charges comply with
applicable regulatory provisions and
that the invoicing party’s behavior did
not contribute to the charges.
Current Action: The proposed rule
implements statutory text that identifies
the minimum information that billing
parties must include on demurrage and
detention invoices, identifies additional
information that billing parties must
include on demurrage and detention
invoices, and clarifies which entities
may receive demurrage and detention
invoices.
Type of Request: Approve information
collection.
Needs and Uses: The Commission
identifies information that entities must
include on demurrage and detention
invoices to ensure compliance with the
Shipping Act of 1984, as amended.
Specifically, proposed 46 CFR part 541
subpart A implements the billing
information requirements contained in
46 U.S.C. 41104(d)(2) and adds
additional minimum information that
billing parties must include on
demurrage and detention invoices.
Frequency: The frequency of
demurrage and detention invoices is
determined by the billing party. It is the
billing entity’s responsibility to ensure
that their demurrage and detention
charges comply with applicable
statutory and regulatory provisions. The
Commission estimates that between five
and ten percent of all containers moving
in U.S.-foreign trade will receive a
demurrage and/or detention invoice or
an estimated range of 1,135,000 and
2,270,000 invoices annually.

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Type of Respondents: VOCCs, MTOs,
and NVOCCs are required to include
specific information on their demurrage
and detention invoices sent to billed
parties.
Number of Annual Respondents: The
Commission anticipates an annual
respondent universe of 354 VOCCs and
MTOs. The Commission did not include
NVOCCs in its annual respondent
universe because in most, if not all
cases, NVOCCs pass through the
demurrage and detention charges it
receives to their customers. Because
NVOCCs are passing through the
charges they are not collecting the
required minimum information
themselves.
Estimated Time per Response: The
Commission estimates a one-time
burden of an estimated 25 hours per
respondent to integrate the required
billing information elements into their
existing invoicing system. After this
initial burden, the Commission
anticipates that the estimated time to
create and retain each demurrage or
detention invoice to be six minutes or
0.1 hours.
Total Annual Burden: The
Commission estimates a one-time
burden for respondents to integrate the
additional billing information elements,
required by OSRA 2022 and by the
proposed rule, into their existing
invoicing system to be 8,850 personhours and $882,522. After this initial
integration, the Commission estimates
the total annual burden to provide
demurrage and detention invoices and
to ensure accuracy to be 113,500–
227,000 person-hours and $6,339,020–
$12,678,040.
Comments are invited on:
• Whether the collection of
information is necessary for the proper
performance of the functions of the
Commission, including whether the
information will have practical utility;
• Whether the Commission’s estimate
for the burden of the information
collection is accurate;
• Ways to enhance the quality, utility,
and clarity of the information to be
collected;
• Ways to minimize the burden of the
collection of information on
respondents, including the use of
automated collection techniques or
other forms of information technology.
Please submit any comments,
identified by the docket number in the
heading of this document, by the
methods described in the ADDRESSES
section of this document.

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Executive Order 12988 (Civil Justice
Reform)

be adhered to when invoicing for
demurrage or detention.

eliminates any obligation of the billed
party to pay the applicable invoice.

This proposed rule meets the
applicable standards in E.O. 12988
titled, ‘‘Civil Justice Reform,’’ to
minimize litigation, eliminate
ambiguity, and reduce burden.

§ 541.2

§ 541.6

Regulation Identifier Number
The Commission assigns a regulation
identifier number (RIN) to each
regulatory action listed in the Unified
Agenda of Federal Regulatory and
Deregulatory Actions (Unified Agenda).
The Regulatory Information Service
Center publishes the Unified Agenda in
April and October of each year. You
may use the RIN contained in the
heading at the beginning of this
document to find this action in the
Unified Agenda, available at https://
www.reginfo.gov/public/do/
eAgendaMain.
List of Subjects in 46 CFR Part 541
Demurrage and detention; Common
carriers; Exports; Imports; Marine
terminal operators.
For the reasons set forth in the
preamble, the Federal Maritime
Commission proposes to add 46 CFR
part 541 as follows:

■

PART 541—DEMURRAGE AND
DETENTION
Subpart A—Demurrage and Detention
Billing Requirements
Sec.
541.1 Purpose
541.2 Scope and applicability
541.3 Definitions
541.4 Properly issued invoices
541.5 Failure to include required
information
541.6 Contents of invoice
541.7 Issuance of demurrage and detention
invoices
541.8 Requests for fee mitigation, refund, or
waiver
541.9–541.98 [Reserved]
541.99 OMB control number assigned
pursuant to the Paperwork Reduction
Act

Subpart B [Reserved]
Authority: 5 U.S.C. 553; 46 U.S.C. 40307,
40501–40503, 41101–41106, 40901–40904,
and 46105; and 46 CFR 515.23.
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Subpart A—Billing Requirements and
Practices
§ 541.1

Purpose

This part establishes the minimum
information that must be included on or
with demurrage and detention invoices.
It also establishes procedures that must

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Scope and applicability

(a) This part sets forth regulations
governing any invoice issued by an
ocean common carrier, marine terminal
operator, or non-vessel operating
common carrier to a billed party or their
designated agent for the collection of
demurrage or detention charges.
(b) This regulation does not govern
the billing relationships among and
between ocean common carriers and
marine terminal operators.
§ 541.3

Definitions

In addition to the definitions set forth
in 46 U.S.C. 40102, when used in this
part:
Billing dispute means any
disagreement with respect to the
validity of the charges, or the method of
invoicing raised by the billed party or
its agent to the billing party.
Billed party means the person
receiving the demurrage or detention
invoice and who is responsible for the
payment of any incurred demurrage or
detention charge.
Billing party means the ocean
common carrier, marine terminal
operator, or non-vessel operating
common carrier who issues a demurrage
or detention invoice.
Demurrage or detention mean any
charges, including ‘‘per diem’’ charges,
assessed by ocean common carriers,
marine terminal operators, or non-vessel
operating common carriers related to the
use of marine terminal space (e.g., land)
or shipping containers, but not
including freight charges.
Demurrage or detention invoice
means any statement of charges printed,
written, or accessible online that
documents an assessment of demurrage
or detention charges.
§ 541.4

Properly issued invoices

A properly issued invoice is a
demurrage or detention invoice issued
by a billing party to the person for
whose account the billing party
provided ocean transportation or
storage.
(a) This person must have contracted
with the billing party for the carriage or
storage of goods and is therefore
responsible for the payment of any
incurred demurrage or detention charge.
(b) A billing party cannot issue an
invoice to any other person.
§ 541.5 Failure to include required
information

Failure to include any of the required
minimum information in this part in a
demurrage or detention invoice

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Contents of invoice.

At a minimum, an invoice for
demurrage or detention charges must
include the following information:
(a) Identifying information. The
invoice must contain sufficient
information to enable the billed party to
identify the container(s) to which the
charges apply, including:
(1) The Bill of Lading number(s);
(2) The container number(s);
(3) For imports, the port(s) of
discharge; and
(4) The basis for why the invoiced
party is the proper party of interest and
thus liable for the charge.
(b) Timing information. The invoice
must contain sufficient information to
enable the billed party to identify the
relevant time for which the charges
apply, and the applicable due date for
invoiced charges, including:
(1) The billing date;
(2) The billing due date;
(3) The allowed free time in days;
(4) The start date of free time;
(5) The end date of free time;
(6) For imports, the container
availability date;
(7) For exports, the earliest return
date; and
(8) The specific date(s) for which
demurrage and/or detention were
charged.
(c) Rate information. The invoice
must contain sufficient information to
enable the billed party to identify the
amount due and readily ascertain how
that amount was calculated, including:
(1) The total amount due;
(2) The applicable detention or
demurrage rule (i.e., the tariff name and
rule number, applicable service contract
number and section, or applicable
negotiated arrangement) on which the
daily rate is based; and
(3) The specific rate or rates per the
applicable tariff rule or service contract.
(d) Dispute information. The invoice
must contain sufficient information to
enable the billed party to readily
identify a contact to whom they may
direct questions or concerns related to
the invoice and understand the process
to request fee mitigation, refund, or
waiver, including:
(1) The email, telephone number, or
other appropriate contact information
for questions or request for fee
mitigation, refund, or waiver;
(2) The URL address of a publiclyaccessible portion of the billing party’s
website that provides a detailed
description of information or
documentation that the billed party
must provide to successfully request fee
mitigation, refund, or waiver; and

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(3) Defined timeframes that comply
with the billing practices in this part,
during which the billed party must
request a fee mitigation, refund, or
waiver and within which the billing
party will resolve such requests.
(e) Certifications. The invoice must
contain statements from the billing
party that:
(1) The charges are consistent with
any of the Federal Maritime
Commission’s rules related to
demurrage and detention, including, but
not limited to, this part and 46 CFR
545.5; and
(2) The billing party’s performance
did not cause or contribute to the
underlying invoiced charges.
§ 541.7 Issuance of demurrage and
detention invoices.

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(a) A billing party must issue a
demurrage or detention invoice within
thirty (30) days from the date on which
the charge was last incurred. If the
billing party does not issue demurrage
or detention invoices within the

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required timeframe, then the billed
party is not required to pay the charge.
(b) If the billing party invoices the
incorrect party, the correct billed party
must receive an invoice within thirty
(30) days from the date the incorrect
party disputes the charges with the
billing party. An invoice to the correct
billed party must be issued within sixty
(60) days after the charges were last
incurred. If the billed party does not
receive demurrage or detention invoices
within the required timeframe, then it is
not required to pay the charge.
§ 541.8 Requests for fee mitigation,
refund, or waiver.

(a) If a billed party requests
mitigation, refund, or waiver of fees
from the billing party, it must submit
the request within thirty (30) days of
receiving the invoice.
(b) If a billing party receives a fee
mitigation, refund, or waiver request
from a billed party, the billing party
must resolve the request within thirty
(30) days of receiving such a request. If
the billing party fails to resolve the fee

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mitigation, refund, or waiver request
within the 30-day deadline, the billed
party is not required to pay the charge
at issue.
§ 541.9–541.98

[Reserved]

§ 541.99 OMB control number assigned
pursuant to the Paperwork Reduction Act.

The Commission has received Office
of Management and Budget approval for
this collection of information pursuant
to the Paperwork Reduction Act of 1995,
as amended. In accordance with that
Act, agencies are required to display a
currently valid control number. In this
regard, the valid control number for this
collection of information is 3072–
XXXX.
Subpart B [Reserved]
By the Commission.
William Cody,
Secretary.
[FR Doc. 2022–22290 Filed 10–13–22; 8:45 am]
BILLING CODE 6730–02–P

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