On February 15, 2022, the Federal Maritime Commission (FMC), posted an Advanced Notice of Proposed Rulemaking (ANPRM) and they want to hear from shippers about the current issue that focuses on detention and demurrage costs assessed to your cargo. Rising cargo volumes have increasingly put varying pressures on carriers, port, and terminal performance, and the charges associated with the movement have for a variety of reasons, increased substantially. Normally, demurrage and detention charges and policies should serve the primary purpose of incentivizing the movement of cargo and promoting freight fluidity, however, with port congestion and other related issues, there is an opportunity for significant change.
Last July, the FMC issued out an ANPRM notice seeking industry views on certain billing practices as they pertained to detention and demurrage. In September, the FMC approved the fact-findings recommendations and now this new ANPRM seeks more input from the stakeholders who have a very vested interest regarding detention and demurrage.
The Commission seeks industry views on whether it should regulate the demurrage and detention billing practices of common carriers and marine terminal operators (MTO). For the purposes of this ANPRM, the Commission defines the terms ‘‘demurrage and detention’’ broadly to include any charges assessed by common carriers and MTOs related to the use of marine terminal space or shipping containers. Under this definition, for instance, charges assessed by common carriers for the use of containers outside a marine terminal would fall within the scope of this ANPRM regardless of whether the charges are called ‘‘detention’’ or ‘‘per diem.’’ Similarly, charges assessed because a container is taking up terminal space would fall within the scope of this ANPRM even if the charges are called something other than ‘‘demurrage.’’ Therefore, the scope of this advance notice is any charges having the purpose or effect of demurrage or detention regardless of the labels given to those charges.
The Commission is also considering requiring common carriers and MTOs to adhere to certain practices regarding the timing of demurrage and detention billings and is interested in comments on whether similar requirements should be placed on the issuance of refunds.
Now that you have the scope of the ANPRM, you may be wondering, How can I participate and submit my concerns to the FMC?
You may submit comments, identified by Docket No. 22–04, by email to secretary@fmc.gov. Be sure to include in the subject line: ‘‘Docket No. 22–04, Comments on Demurrage and Detention Billing Requirements ANPRM.’’ Comments should be attached to the email as a Microsoft Word or text-searchable PDF document. Only non-confidential and public versions of confidential comments should be submitted by email. Please note the deadline for comments is March 17, 2022.
Now, you may be wondering if the comments you submit will be kept confidential. The Commission will provide confidential treatment for identified confidential information to the extent allowed by law. If your comments contain confidential information, you must submit the following by email to the address listed above:
- A transmittal letter requesting confidential treatment 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. You should submit the confidential copy to the Commission by mail.
As always, should you have any questions as it relates to this process of submitting feedback to the FMC, please feel free to contact me directly.
