[Federal Register Volume 89, Number 38 (Monday, February 26, 2024)]
[Rules and Regulations]
[Pages 14330-14363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02926]



[[Page 14329]]

Vol. 89

Monday,

No. 38

February 26, 2024

Part III





 Federal Maritime Commission





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46 CFR Part 541





Demurrage and Detention Billing Requirements; Final Rule

  Federal Register / Vol. 89 , No. 38 / Monday, February 26, 2024 / 
Rules and Regulations  

[[Page 14330]]


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FEDERAL MARITIME COMMISSION

46 CFR Part 541

[Docket No. FMC-2022-0066]
RIN 3072-AC90


Demurrage and Detention Billing Requirements

AGENCY: Federal Maritime Commission.

ACTION: Final rule.

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SUMMARY: In accordance with the Ocean Shipping Reform Act of 2022, the 
Federal Maritime Commission (the Commission or FMC) is issuing 
regulations governing demurrage and detention billing requirements. 
This final rule requires common carriers and marine terminal operators 
to include specific minimum information on demurrage and detention 
invoices, outlines certain detention and demurrage billing practices, 
such as determination of which parties may appropriately be billed for 
demurrage or detention charges, and sets timeframes for issuing 
invoices, disputing charges with the billing party, and resolving such 
disputes. It adopts with changes the notice of proposed rulemaking 
published on October 14, 2022. Substantive changes allow consignees to 
be billed and clarify the timeframe for non-vessel-operating common 
carriers passing through demurrage and detention charges to issue their 
own invoices. Non-substantive changes improve clarity and remove 
drafting errors.

DATES: This final rule is effective on May 28, 2024, except for 
instruction 2 adding Sec.  541.6, and instruction 3 adding Sec.  
541.99, which are delayed. The Commission will publish a document in 
the Federal Register announcing the effective date of these amendments.

ADDRESSES: To view background documents or comments received, you may 
use the Federal eRulemaking Portal at www.regulations.gov under Docket 
No. FMC-2022-0066.

FOR FURTHER INFORMATION CONTACT: David Eng, Secretary; Phone: (202) 
523-5725; Email: fmc.gov">secretary@fmc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    As rising cargo volumes have increasingly put pressure on common 
carriers, 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 common 
carriers \2\ and marine terminal operators \3\ 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.'' \4\ 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.\5\ The Commission voted to move 
forward with this Fact Finding 29 recommendation on September 15, 
2021.\6\
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    \1\ Federal Maritime Commission, Detention and Demurrage, 
https://www.fmc.gov/detention-and-demurrage/
#:~:text=In%20dollar%20terms%2C%20the%20nine,over%20the%20two%2Dyear%
20period (last visited Oct. 11, 2023).
    \2\ There are two types of common carriers: (1) vessel-operating 
common carriers (VOCCs), also called ocean common carriers, and (2) 
non-vessel-operating common carriers (NVOCCs). 46 U.S.C. 40102(7), 
(17), (18).
    \3\ ``Marine terminal operator'' (MTO) is defined at 46 U.S.C. 
40102(15).
    \4\ 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/.
    \5\ Fact Finding 29 Interim Recommendations at 7.
    \6\ 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-issue-guidance-on-complaint-proceedings-and-seek-comments-on-demurrage-and-detention-billings/.
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    On February 15, 2022, the Commission issued an ANPRM to request 
industry views on potential demurrage and detention billing 
requirements.\7\ Specifically, the Commission requested comments on:
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    \7\ 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.
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     Whether a proposed regulation on demurrage and detention 
billing practices should apply to non-vessel-operating common carriers 
(NVOCCs) as well as vessel-operating common carriers (VOCCs);
     Whether the regulations should differ based on whether the 
billing party is an NVOCC or a VOCC; \8\
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    \8\ 87 FR at 8507, 8508-8509 (Questions 1 and 7).
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     Whether the proposed regulations on demurrage and 
detention billings should apply to marine terminal operators (MTOs); 
\9\
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    \9\ 87 FR at 8507, 8509 (Questions 2 and 3).
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     What information should be required in demurrage and 
detention invoices; \10\
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    \10\ 87 FR at 8508.
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     Whether bills should include information on how the 
billing party calculated demurrage and detention charges.\11\ For 
example, the Commission requested comments on whether it should require 
the billing party to include the following information:
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    \11\ Id.
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    [cir] Identifying clear and concise container availability dates in 
addition to vessel arrival dates for import shipments; and,
    [cir] 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; \12\ and
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    \12\ 87 FR at 8509 (Question 6).
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     Whether the bills should include information on any events 
(e.g., container unavailability, lack of return locations, 
appointments, or other force-majeure reasons) that would justify 
stopping the clock on charges.\13\
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    \13\ Id.
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    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 it should require billing parties 
to issue demurrage or detention invoices within 60 days after the 
charges stopped accruing.\14\ The Commission stated that the Uniform 
Intermodal Interchange Agreement (UIIA) \15\ currently stipulates that 
invoices be issued within 60 days and asked whether the 60-day 
timeframe was effective in addressing concerns raised by billed 
parties, or whether a longer or shorter time period would be more 
appropriate.\16\ In addition, the Commission requested comments on 
whether it should regulate the timeframe for refunds and, if so, what 
would be an appropriate timeframe.\17\
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    \14\ 87 FR at 8508, 8509 (Question 12).
    \15\ 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.
    \16\ 87 FR at 8508.
    \17\ 87 FR at 8508, 8509 (Question 14).
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    On June 16, 2022, after the Commission issued the ANPRM and 
received comments, the Ocean Shipping Reform Act of 2022 (OSRA 2022) 
was

[[Page 14331]]

enacted into law.\18\ 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.\19\ OSRA 2022 then lists the minimum information that 
common carriers must include in a demurrage or detention invoice:
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    \18\ Public Law 117-146, 136 Stat. 1272 (2022).
    \19\ Public Law 117-146 at Sec. 7(a)(1), 136 Stat. at 1274 
(codified at 46 U.S.C. 41104(a)(15)).
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     date that 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.\20\
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    \20\ 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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    Failure to include the required information on a demurrage or 
detention invoice eliminates any obligation of the billed party to pay 
the applicable charge.\21\ In addition, OSRA 2022 authorizes the 
Commission to revise the minimum information that common carriers must 
include on demurrage or detention invoices in future rulemakings.
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    \21\ Public Law 117-146 at Sec. 7(a)(2), 136 Stat. at 1275 
(codified at 46 U.S.C. 41104(f)).
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    OSRA 2022 additionally requires the Commission to initiate a 
rulemaking further defining prohibited practices by common carriers, 
marine terminal operators, shippers, and OTIs regarding the assessment 
of demurrage or detention charges.\22\ OSRA 2022 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)[.]'' \23\ Specifically, the 
Commission's rulemaking must clarify ``which parties may be 
appropriately billed for any demurrage, detention, or other similar per 
container charges.'' \24\
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    \22\ Public Law 117-146 at Sec. 7(b)(1), 136 Stat. at 1275.
    \23\ Public Law 117-146 at Sec. 7(b)(2), 136 Stat. at 1275 
(emphasis added).
    \24\ Id.
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    On October 14, 2022, the Commission published a notice of proposed 
rulemaking (NPRM) that would require common carriers and marine 
terminal operators to include specific minimum information on demurrage 
and detention invoices and outlined certain billing practices relevant 
to appropriate timeframes for issuing invoices, disputing charges with 
the billing party, and resolving such disputes.\25\ The proposed rule 
addressed considerations identified in the Ocean Shipping Reform Act of 
2022. The proposed rule sought comment on the adoption of minimum 
information that common carriers must include in a demurrage or 
detention invoice; the addition to this list of information that must 
be included in or with a demurrage or detention invoice; a proposed 
definition of prohibited practices clarifying which parties may be 
appropriately billed for demurrage or detention charges; and billing 
practices that billing parties must follow when invoicing for demurrage 
or detention charges.
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    \25\ 87 FR 62341.
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II. Comments

    In response to the NPRM published October 14, 2022, the Commission 
received 191 comments from interested parties. All major groups of 
interested persons were represented in the comments: vessel-operating 
common carriers (VOCCs), non-vessel-operating common carriers (NVOCCs), 
marine terminal operators (MTOs), motor carriers, beneficial cargo 
owners (BCOs), ocean transportation intermediaries (OTIs), third party 
logistics providers, customs brokers, bi-partisan groups of the U.S. 
House of Representatives, another Federal agency, and the National 
Shipping Advisory Committee (the Commission's federal advisory 
committee). Comments were submitted by individuals, large and small 
companies, and by national trade associations. All comments submitted 
on the NPRM are available at https://www.regulations.gov/docket/FMC-2022-0066/comments.
    About 75 percent of commenters supported the rule, about 15 percent 
questioned the rule, and 10 percent did not specify. Motor carriers 
overwhelmingly support the entire rule. BCOs mostly support the rule 
but some object to prohibiting others from being billed. NVOCCs and 
OTIs generally supported the rule, but with many objecting to the 
inclusion of NVOCCs. VOCCs overwhelmingly questioned or did not support 
the rule. Nearly all VOCCs questioned the rule prohibiting billing 
other parties and the timing of billing requirements. About half of 
VOCCs questioned the required information from the ANPRM that the 
Commission added to the information specifically required by OSRA 2022. 
MTOs overwhelmingly questioned the rule, with most arguing these 
regulations should not apply to MTOs.
    The top three issues addressed by commenters were: (1) concerns 
with the prohibition on billing other parties that are not 
contractually connected, (2) concerns with additional information the 
Commission proposed to require in addition to the OSRA 2022 mandated 
information, and (3) concerns with the time periods for billing.
    These comments are addressed in the discussion that follows.

III. Discussion of Comments

A. Sec.  541.1 Purpose

    Issue: Two commenters requested that ``minimum'' be added to the 
second sentence before ``procedures'' to mirror the use of ``minimum'' 
before ``information'' in the first sentence.\26\
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    \26\ Bass Tech International (FMC-2022-0066-0230); National 
Industrial Transportation League (FMC-2022-0066-0230-0104).
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    FMC response: FMC declines to make the proposed change. Neither 
commenter provided sufficient justification as to why such a change 
would provide additional clarity. The Commission has drafted Sec.  
541.1 to reflect the language of OSRA 2022.

B. Sec.  541.2 Scope and Applicability

1. Regulation of MTO Demurrage and Detention Billing Practices
(a) FMC's Authority To Regulate
    Issue: MTOs and MTO trade associations argued that MTOs should not 
fall within the scope of the rule.
    MTOs offered many reasons why they should not be subject to the 
proposed regulations. The majority presented their interpretation of 
the effect that the legislative process leading to the

[[Page 14332]]

enactment of OSRA 2022 should have, which they believe demonstrates 
that Congress intended to prohibit inclusion of MTOs in this 
rulemaking. MTOs pointed first to how Congress amended 46 U.S.C. 41104, 
which applies to common carriers, not MTOs.\27\ MTOs argued that 
Congress deliberately chose not to amend 46 U.S.C. 41106 when it added 
invoicing requirements to 46 U.S.C. 41104, so that invoicing 
requirements would only apply to carriers, not to MTOs.\28\ The 
National Association of Waterfront Employers (NAWE) and the Port of NY/
NJ Sustainable Services Agreement (PONYNJSSA) also argued that 
Congress's choice not to add invoicing requirements to 46 U.S.C. 41102, 
which applies to both MTOs and carriers, precludes the Commission from 
including MTOs in the scope of this regulation.\29\ Most commonly, 
these commenters pointed out that Congress, and specifically the House 
of Representative's version of OSRA 2021, originally included MTOs in 
the invoicing requirements.\30\ The MTOs argue that Congress, late in 
the process, chose to exempt MTOs from compliance with demurrage and 
detention requirements in the enacted version of OSRA 2022.\31\ Two 
members of Congress, Congressman Jake Auchincloss and Congressman Brian 
Babin, wrote jointly [August 17th Congressional Letter] to make this 
argument, and stated that including MTOs within the scope of the 
regulation would threaten stability and cargo fluidity at United States 
ports.\32\
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    \27\ E.g., Husky Terminal and Stevedoring, LLC (FMC-2022-0066-
0248); Port Houston (FMC-2022-0066-0268).
    \28\ Husky Terminal and Stevedoring, LLC (FMC-2022-0066-0248).
    \29\ National Association of Waterfront Employers (FMC-2022-
0066-0276); Port of NY/NJ Sustainable Services Agreement (FMC-2022-
0066-0218). NAWE and PONYNJSSA also argued that: (1) the only way 
OSRA 2022 can be harmonized with 46 U.S.C. 41102(c) is by excluding 
MTOs from the proposed rule's substantive demurrage and detention 
billing requirements, and (2) if 46 U.S.C. 41102(c) and OSRA 2022 
cannot be harmonized, the more specific statute, OSRA 2022, should 
control.
    \30\ Port Authority of New York & New Jersey (FMC-2022-0066-
0226); Port Houston (FMC-2022-0066-0268); West Coast MTO Agreement 
(FMC-2022-0066-0229).
    \31\ Port Authority of New York & New Jersey (FMC-2022-0066-
0226); American Association of Port Authorities (FMC-2022-0066-
0255); West Coast MTO Agreement (FMC-2022-0066-0229).
    \32\ Letter from Jake Auchincloss and Brian Babin, U.S. House 
Representatives (Aug. 17, 2023) (FMC-2022-0066-0282). The 
Congressmen also took issue with a recent Commission decision 
finding the imposition of equipment charges on a holiday weekend at 
odds with the incentive principle. That issue is outside the scope 
of this rulemaking.
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    NAWE also argued that the Commission cannot enforce 46 U.S.C. 
41102(c) here without contravening the Commission's Interpretive Rule 
at 46 CFR 545.4(b). NAWE stated that the Commission's Interpretive Rule 
requires that an impermissible ``practice'' occur on a ``normal, 
customary, and continuing basis,'' while the proposed rule would 
penalize any isolated invoice omission. NAWE argued that taking action 
in a case alleging a single shipment violation is an implicit repeal of 
the agency's Interpretive Rule at Sec.  545.4 without public notice and 
comment.
    Other members of Congress submitted comments on the proposed rule 
as well, but in support of the inclusion of MTOs in this rule.\33\ A 
letter from these members of Congress [January 2nd Congressional 
Letter] stated that since authoring OSRA 2022, they became aware that 
MTOs are invoicing their own demurrage and detention charges separate 
from VOCC charges. They pointed out that this invoicing practice 
directly contradicts the statements of NAWE to Congress during the 
drafting of OSRA 2022.\34\ The letter stated that they support applying 
any demurrage and detention invoicing requirements that apply to VOCCs 
to MTOs as well, with reasonable exceptions for demurrage charges set 
by public port tariffs and where MTOs are acting only as a collections 
agent.\35\
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    \33\ Letter from John Garamendi, Dusty Johnson, Jim Costa, David 
Valado, Mike Thompson, and Jimmy Panetta, U.S. House Representatives 
(Jan. 2, 2023)(FMC-2022-0066-0279).
    \34\ Id. (``Since enactment of the Ocean Shipping Reform Act of 
2022, we have heard reports of marine terminal operators invoicing 
their own charges for demurrage and detention separate from those 
charged by ocean carriers. This practice directly contradicts 
written comments by the National Association of Waterfront 
Employers--the trade association for marine terminal operators--on 
the House discussion draft and to the Committee on Transportation 
and Infrastructure in 2021.'')
    \35\ Id.
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    FMC response: The Commission has the statutory authority to apply 
this rule to MTOs and declines to exclude them from the duties and 
responsibilities of issuing accurate demurrage and detention invoices. 
Commenters raised two major arguments against the Commission's proposed 
inclusion in the regulations of MTOs. Commenters argued that the 
Commission did not have authority to apply the regulations to MTOs \36\ 
and that it should not apply regulations to MTOs for a variety of 
reasons addressed below individually.\37\ The Commission has clear 
statutory authority to regulate MTOs under section 41102(c). There is 
also a clear need, based on the record of this rulemaking, for these 
regulations to address MTOs demurrage and detention invoices sent to 
entities other than VOCCs.
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    \36\ National Association of Waterfront Employers (FMC-2022-066-
0276).
    \37\ American Association of Port Authorities (FMC-2022-0066-
0255); West Coast MTO Agreement (FMC-2022-0066-0229); Trapac, LLC 
(FMC-2022-0066-0136).
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    Section 41102(c) of Title 46 prohibits common carriers, MTOs, and 
ocean transportation intermediaries from failing to establish, observe, 
and enforce just and reasonable regulations and practices relating to 
or connected with the receiving, handling, storing, or delivering 
property. The Commission has authority under 46 U.S.C. 46105(a) to 
prescribe regulations to carry out its duties and powers. The 
Commission has repeatedly explained that the issue of detention and 
demurrage charges falls within the prohibitions of 46 U.S.C. 
41102(c).\38\ Further, the plain language of 46 U.S.C. 41102(c) 
describes exactly the type of conduct this rule intends to regulate. 
This section prohibits an MTO from ``failing to establish, observe, and 
enforce just and reasonable regulations and practices relating to or 
connected with receiving . . . [or] storing property.'' This rule 
issued pursuant to the Commission's power to issue regulations \39\ to 
define these prohibitions, as well as those found in OSRA 2022, 
interprets what constitutes just and reasonable practices on invoicing 
and charges related to the use of marine terminal space or shipping 
containers. The Commission concludes that this rule will help ensure 
that MTOs' demurrage and detention billing practices are just and 
reasonable pursuant to section 41102.
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    \38\ Interpretive Rule on Demurrage and Detention Under the 
Shipping Act, 84 FR 48850, 48852 (Sep. 17, 2019); Interpretive Rule 
on Demurrage and Detention Under the Shipping Act, 85 FR 29638 (May 
18, 2020); Fact Finding Investigation No. 28, Final Report (Dec. 3, 
2018), available at: https://www2.fmc.gov/readingroom/documents/20973; Fact Finding Investigation No. 29, Final Report (May 31, 
2022), available at: https://www.fmc.gov/wp-content/uploads/2022/06/FactFinding29FinalReport.pdf; see also California v. United States, 
320 U.S. 577, 584-85 (1944) (interpreting the analogous provision in 
the Shipping Act of 1916 as applying to demurrage); Am. Export-
Isbrandtsen Lines, Inc. v. Fed. Mar. Comm'n, 444 F.2d 824, 829 (D.C. 
Cir. 1970) (interpreting the analogous provision in the Shipping Act 
of 1916 as applying to detention).
    \39\ 46 U.S.C. 46105(a).
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    Arguments that the Commission lacks this authority because Congress 
chose to place detailed invoicing requirements in a section that only 
applies to carriers, or because Congress removed requirements that 
would expressly apply to MTOs during the statutory drafting process, do 
not address the Commission's pre-

[[Page 14333]]

existing and continuing legal authority to issue demurrage and 
detention invoicing regulations that apply to MTOs even before OSRA 
2022. The actual statutory text of 46 U.S.C. 41102(c) and Congress's 
direction to use 46 U.S.C. 41102(c) to define prohibited demurrage and 
detention practices for marine terminal operators is clear and does not 
necessitate resorting to the incomplete history of the legislative 
drafting process of OSRA 2022.\40\ Moreover, Congress explicitly 
included in OSRA 2022 the direction that the Commission initiate a 
rulemaking to further define prohibited practices by MTOs, among 
others, under 46 U.S.C. 41102(c) regarding the assessment of detention 
and demurrage.\41\ Thus, in OSRA 2022, Congress amplified the 
Commission's existing authority to issue regulations that govern the 
issuance of demurrage and detention invoices in section 41102(c) and 
added to that authority a mandate to further define prohibited 
practices. The identification of MTOs within section 7(b), entitled 
``Common Carriers,'' does not support the view that Congress intended 
to limit the scope of its directive to the Commission to ensuring that 
invoices are accurate. Instead, the plain language of the statute shows 
an intent by Congress to address in a targeted manner the failures of 
the current invoicing process. Such a targeted approach requires 
ensuring that MTOs, as well as VOCCs and NVOCCs, issue accurate 
invoices.
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    \40\ The Commission notes that canons of construction, such as 
reviewing legislative drafting history, are most useful in 
evaluating an interpretation of an ambiguous statute or regulation. 
See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 508-09 
(1989)(``We begin by considering the extent to which the text of 
[the disputed provision] answers the question before us. Concluding 
that the text is ambiguous with respect to [that question], we then 
seek guidance from legislative history . . .''). But that is not why 
the commenters raised the legislative drafting history. The 
commenters would have the Commission affirmatively read into 
existence a prohibition on regulating MTO demurrage and detention 
invoices because some versions of legislation contemplated by 
Congress laid out statutory requirements and others did not. The 
absence of a statutory requirement is not proof of a prohibition on 
issuing regulations. If Congress wanted to prohibit the Commission 
from regulating MTO demurrage and detention invoices, it could have 
done so. The Commission does not agree that the legislative history 
prohibits inclusion of MTOs in these regulations.
    \41\ Public Law 117-146, 136 Stat. 1272, at 1275.
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    The need to include MTOs in this rule is supported by the comments. 
Excluding MTOs from this rule is likely to create a regulatory 
loophole, significantly affecting the ability of the rule to effect 
change in the current invoicing process. The comments support a finding 
that MTOs are invoicing for their own demurrage and detention 
charges.\42\ Common carriers, the usual contractual party, could simply 
have MTOs issue their demurrage and detention invoices to avoid the 
necessary invoicing requirements this rule puts into place, and 
invoices coming from MTOs would not be required to comply with either 
Congress's instructions at 46 U.S.C. 41104(d) or these regulations. 
Billed parties would receive a significant portion of invoices from 
MTOs with whatever information MTOs chose to provide, which may not 
include the critical information a billed party needs to ensure the 
bill is accurate. The MTO as the billing party would not be subject to 
the dispute resolution processes contained in these rules. Not 
including MTOs in the scope of this rule would meaningfully reduce the 
effectiveness of the rule and perpetuate current problematic invoicing 
practices. The Commission finds, as supported by the comments, that 
finalizing a rule that excluded MTOs would undermine Congress's intent 
as expressed through the plain language of OSRA 2022.\43\
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    \42\ Garamendi, Johnson, Costa, Valado, Thompson, and Panetta, 
supra note 33.
    \43\ See Balsam Brands (FMC-2022-0066-0095) (arguing that 
excluding MTOs potentially creates a loophole that would undermine 
the purposes and effectiveness of the regulation).
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    The August 17th Congressional Letter and other commenters argued 
that it was not Congress's intent that these rules apply to MTOs.\44\ 
The August 17th Congressional Letter urged the removal of MTOs from the 
rulemaking's substantive requirements because the legislative history 
shows that Congress intended to remove MTOs from demurrage and 
detention invoicing requirements and such requirements could 
potentially increase port congestion.\45\ However, as noted above, the 
legislative history of OSRA 2022 cannot be read to prohibit agency 
action to address an issue the legislation itself identifies as in need 
of resolution.
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    \44\ Auchincloss and Babin, supra note 32.
    \45\ Many MTOs also made the argument that the legislative 
history of OSRA 2022 shows that Congress intended to exempt MTOs 
from demurrage and detention invoice requirements. American 
Association of Port Authorities (FMC-2022-0066-0255); West Coast MTO 
Agreement (FMC-2022-0066-0229); Fenix Marine Services, Ltd. (FMC-
2022-0066-0186); Husky Terminal and Stevedoring, LLC (FMC-2022-0066-
0248); Port of Houston (FMC-2022-0066-0268); Trapac, LLC (FMC-2022-
0066-0136); National Association of Waterfront Employers (FMC-2022-
0066-0276).
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    Further, the January 2nd Congressional Letter urged the Commission 
to ensure the inclusion of MTOs in the Commission's final rule. 
Congressmen Garamendi, Johnson, Costa, Valado, Thompson, and Panetta 
wrote the January 2nd Congressional Letter.\46\ The January 2nd 
Congressional Letter reported that comments submitted to Congress by 
NAWE in 2021 stated that MTOs do not invoice their own charges for 
detention and demurrage separate from those charged by ocean common 
carriers. Since then, the signatories of the January 2nd Congressional 
Letter state they have received reports of MTOs invoicing their own 
demurrage and detention charges separate from those of ocean common 
carriers. The January 2nd Congressional Letter concluded that all 
requirements in the final rule for invoicing demurrage and detention 
that cover ocean common carriers should apply to MTOs. The Commission 
finds the argument from the January 2nd Congressional Letter persuasive 
and consistent with the comments indicating that MTO invoicing is 
prevalent. It is critical to include MTOs in the final rule to ensure 
meaningful change to existing industry practice creating inefficiencies 
and confusion.
---------------------------------------------------------------------------

    \46\ Garamendi, Johnson, Costa, Valado, Thompson, and Panetta, 
supra note 33.
---------------------------------------------------------------------------

    With respect to the specific information required in invoices, 
Congress and the President have already spoken on what they believe to 
be reasonable demurrage and detention invoicing requirements for 
billing parties, as evidenced by what they required of common carriers 
at 46 U.S.C. 41104(d). The Commission believes that these elements are 
appropriate to require in a demurrage and detention invoice sent to a 
billed party, regardless of whether the invoices come from an MTO or a 
common carrier, because these elements are mandated by Congress and 
supported by past agency investigation and review.\47\ The need for 
consistency in demurrage and detention invoicing further supports 
requiring MTOs to comply with this rule, because billed parties should 
be able to expect a standardized set of information in a demurrage or 
detention invoice,\48\ regardless of whether it comes from a carrier or 
an MTO.\49\
---------------------------------------------------------------------------

    \47\ ``[T]he 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.'' See 87 FR 
at 62347.
    \48\ Harbor Trucking Association (FMC-2022-0066-0261).
    \49\ As noted above, demurrage and detention invoices between 
MTOs and VOCCs are not subject to this rule.
---------------------------------------------------------------------------

    Requiring standardized practices from MTOs also addresses the 
confusion raised in comments about what actual role MTOs play in 
invoicing for demurrage and detention. Some MTOs

[[Page 14334]]

told Congress that they do not issue their own demurrage and detention 
invoices separate from carriers.\50\ Some MTOs have told the Commission 
that they do not send traditional demurrage and detention invoices, but 
instead issue ``demurrage receipts'' or ``disclose charges.'' \51\ One 
MTO contended to the Commission that it does not send demurrage and 
detention invoices to BCOs or truckers, and that it is VOCCs who charge 
BCOs demurrage and detention; but the same MTO also said that MTOs 
sometimes collect demurrage and detention on behalf of VOCCs.\52\ Other 
MTOs said that they do send demurrage and detention invoices.\53\ Yet, 
even if these MTOs agreed that they do send demurrage and detention 
invoices, they disagreed with the idea that these invoices should be 
subject to the same regulation as other billing parties.
---------------------------------------------------------------------------

    \50\ Garamendi, Johnson, Costa, Valado, Thompson, and Panetta, 
supra note 33.
    \51\ Fenix Marine Services (FMC-2022-0066-0186); West Coast MTO 
Agreement (FMC-2022-0066-0229).
    \52\ Trapac, LLC (FMC-2022-0066-0136).
    \53\ Ports America/SSA Marine (FMC-2022-0066-0249).
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    These inconsistent statements by MTOs highlight the need for clear 
rules governing all demurrage and detention billing parties so that 
billed parties receive accurate information to facilitate faster 
payment and dispute resolution. Allowing MTOs to escape the basic 
requirements of this rule by artfully styling their demurrage and 
detention invoices as ``receipts'' or ``disclosures'' would undermine 
the statute, frustrate the Commission's expressed intention to simplify 
and clarify demurrage and detention invoicing for billed parties, and 
leave in place the confusing status quo that spurred Congress to pass 
OSRA 2022.
    Further, the logic of the MTO argument against regulation is not 
persuasive. If, as some MTOs claim, they do not invoice shippers, BCOs, 
and truckers for demurrage and detention, the rule would not affect 
their practices in any event. If MTOs do send invoices, however, they 
should abide by the same rules as any other billing party. If they do 
have contractual privity, they should be able to obtain any information 
necessary to issue a compliant invoice through that contract. If MTOs 
do not have the information required to issue invoices consistent with 
these rules, they should not send invoices. If they still need to send 
these invoices, they should obtain all of the required information like 
any other billing party. If they cannot obtain that information and 
they still wish to collect a charge, they should forward the invoice to 
a billing party with whom they have a contractual relationship and that 
can comply with this rule, and collect the demurrage and detention 
charge after providing the billing party accurate information about the 
charge.
    Some commenters further challenged the Commission's authority to 
regulate MTOs pursuant to 46 U.S.C. 41102. NAWE argued that the 
Commission lacks authority to regulate MTO invoicing through the 
general legal authority to regulate unjust and unfair practices at 46 
U.S.C. 41102(c). NAWE argued that a more specific statutory provision 
controls over a more general provision, and that when two statutes 
cannot be harmonized, the later in time statute controls over the 
earlier. NAWE contended that 46 U.S.C. 41102(c) and OSRA 2022 can be 
harmonized, by simply omitting MTOs from the proposed rule. If, 
however, the authorities cannot be harmonized, it contends, the 
Commission must follow OSRA 2022 as it is the more specific and later-
in-time statute.
    As previously noted, the Commission has explained that it 
interprets 46 U.S.C. 41102(c) as governing the invoicing of demurrage 
and detention. Nothing in OSRA 2022 prohibited the Commission from 
regulating MTO demurrage and detention invoicing. Therefore, the 
Commission disagrees with NAWE's argument that the statutes cannot be 
harmonized.
(b) Burden on MTOs To Comply With the Rule and Security Concerns
    Issue: MTOs argued that applying these rules to MTOs would force 
them to expend significant resources to overhaul their websites and 
create additional security measures.\54\
---------------------------------------------------------------------------

    \54\ Fenix Marine Services, Ltd. (FMC-2022-0066-0186).
---------------------------------------------------------------------------

    FMC response: MTOs did not submit estimates of or proposals for 
what work would be needed, or would cost, to modify their systems to 
comply with this rule. One MTO explained they have already invested 
significant resources to modify their system to incorporate the 
information from carriers required by OSRA 2022. This certainly 
suggests it is reasonable to expect MTOs to modify their systems to 
comply with this rule. It is not clear why MTOs could do this for their 
VOCC customers' invoices but not their own invoices.\55\
---------------------------------------------------------------------------

    \55\ Husky Terminal and Stevedoring, LLC (FMC-2022-0066-0248).
---------------------------------------------------------------------------

(c) Changes to Current MTO Practices
    Issue: MTOs argued that this rule would upend settled practices and 
increase confusion and congestion at ports.\56\
---------------------------------------------------------------------------

    \56\ American Association of Port Authorities (FMC-2022-0066-
0255).
---------------------------------------------------------------------------

    FMC response: Current billing practices and the lack of 
transparency in those practices have raised concerns about whether 
current practices allow for a competitive and reliable American freight 
delivery system.\57\ The changes to current practices this rule 
requires are meant to change the settled practices that do not ensure 
accuracy, clarity, and visibility of charges. This rule seeks to 
improve upon existing practices that do not provide adequate 
information for the efficient invoicing of charges. Further, these 
changes provide clarity on how billed parties access the dispute 
resolution process. Requiring targeted information may ultimately lead 
to fewer disputed bills and therefore streamline the demurrage and 
detention billing process. As discussed further in this preamble, the 
Commission is delaying implementation of the rule by 90 days. The 
Commission believes that this is sufficient time to allow MTOs and 
other regulated parties to make the necessary changes to their business 
operations in order to comply with the rule.
---------------------------------------------------------------------------

    \57\ See, e.g., Order of Investigation, Fact Finding 
Investigation No 28.
---------------------------------------------------------------------------

(d) Impacts on Common Law Lien Rights
    Issue: MTOs argued that the rule would force MTOs to waive their 
common law lien rights. MTOs said they would have to choose between: 
(1) releasing cargo without demurrage or detention charges being paid 
(waiving their lien rights), or (2) refunding any collected charges if 
the invoice does not comply with this final rule.\58\
---------------------------------------------------------------------------

    \58\ See, e.g., American Association of Port Authorities (FMC-
2022-0066-0255); West Coast MTO Agreement (FMC-2022-0066-0229).
---------------------------------------------------------------------------

    FMC response: This rule does not impact traditional cargo lien 
rights. This rule allows MTOs to make their own business decisions 
about whether or not they require demurrage and detention charges to be 
paid prior to releasing cargo. Contrary to the commenters' assertions, 
releasing cargo without payment of demurrage and detention charges does 
not automatically waive cargo lien rights. Cargo liens are lost upon 
delivery only if the cargo is delivered unconditionally.\59\ It is well 
established law that a lien can survive delivery if the parties have 
contracted for such and the release has been

[[Page 14335]]

conditioned.\60\ In some circumstances releasing cargo conditionally 
might potentially carry additional administrative burden and risk, but 
it may be advantageous to a particular MTO in other circumstances. 
Alternatively, MTOs can require demurrage and detention charges be paid 
prior to releasing cargo. This option carries its own risks, however. 
As the commenter stated, if an MTO collects demurrage and detention 
charges and then those charges are later successfully contested by the 
billed party, the MTO must refund the incorrect charges. Under this 
rule, billed parties have 30 calendar days from the date the invoice is 
issued to contest demurrage and detention charges. This, however, 
should serve as an incentive for the invoices to be correct when 
issued. MTOs assert that issuing correct invoices will be difficult to 
impossible for them to do under the new rule because they do not know 
the end date of free time. The Commission is not convinced by this 
argument. MTOs have not presented evidence to the Commission that such 
information is unattainable by MTOs, only that they do not presently 
have it. The information needed to calculate this charge is knowable in 
advance of the release of cargo; it can be pulled from the bill of 
lading, tariff, terminal schedule, or other relevant transportation 
documents MTOs already have access to and billing formulas created that 
allow accurate invoices to be created quickly and accurately once an 
availability date is known (and projected outward for each day cargo 
pick-up is delayed).
---------------------------------------------------------------------------

    \59\ E.g., Cross Equip. Ltd. v. Hyundai Merch. Marine (Am.) 
Inc., 214 F.3d 1349 (Table) (5th Cir. 2000)(2000 WL 633596)(citing 
e.g., 4,885 Bags of Linseed, 66 U.S. (1 Black) 108, 109 (1861)).
    \60\ Id. (citing e.g., The Bird of Paradise, 72 U.S. 545, 555 
(1866)).
---------------------------------------------------------------------------

(e) Impact on the Commission's Interpretive Rule Codified at 46 CFR 
545.4
    Issue: Commenters argued that the Commission's proposed rule 
amounts to an implicit repeal of the Commission's Interpretive Rule at 
46 CFR 545.4 and therefore that the Commission's action violated the 
Administrative Procedure Act (APA).
    FMC response: The Commission has solicited public comment in both 
an ANPRM and NPRM about whether the scope of this rule should cover MTO 
invoicing. The Commission stated unequivocally in the NPRM that MTOs 
would be subject to this rule. MTOs have had repeated and public notice 
that the Commission was considering this option, so the Commission 
disagrees with concerns that the rule lacked adequate time for public 
notice and comment. Any argument about what parts of the Interpretive 
Rule at 46 CFR 545.4 remains in force is inherently an argument about 
that guidance and not about whether the Commission's instant rule 
complies with the APA.
    Some commenters argue the rule is inconsistent with the 
Interpretive Rule at 46 CFR 545.4. The Commission finds that OSRA 2022 
specifically required the Commission to issue rules under 46 U.S.C. 
41102(c) that further define the prohibited practices by common 
carriers, marine terminal operators, and shippers, regarding the 
assessment of detention or demurrage charges. The plain language of 
this directive and the plain language of 41104(d) do not require 
evidence of multiple violations. This view is further supported by 46 
U.S.C. 41104(f) which functions to void an invoice if a single required 
element is not included, not when the complainant can show multiple 
instances of such behavior.\61\ Thus, in the narrow context of 
demurrage and detention invoices issued by MTOs and common carriers, 
the Commission concludes that Congress dictated that evidence of a 
single violation is sufficient. To the extent that the commenters argue 
this narrowing by Congress repeals the Commission's entire Interpretive 
Rule codified at 46 CFR 545.4, the Commission disagrees.
---------------------------------------------------------------------------

    \61\ See also 46 U.S.C. 41310(b) (Charge complaints authority 
states that Commission is required to investigate compliance with 
section 41102 of ``the charge'' received and does not specify that 
multiple instances must be alleged for the Commission to investigate 
and order a refund and/or civil penalty).
---------------------------------------------------------------------------

(f) MTOs Collecting Demurrage and Detention on Behalf of Other Parties
    Issue: Several MTOs have raised questions about how the rule does, 
and should, apply to them when they are collecting demurrage and 
detention charges on behalf of VOCCs, NVOCCs, and BCOs. For example, 
Maher Terminals said that the definition of ``billing party'' in the 
proposed rule does not clarify the identity of the billing party when 
an MTO bills and collects on behalf of a VOCC. (The rule would define 
``billing party'' as ``the ocean common carrier, marine terminal 
operator, or non-vessel-operating common carrier who issues a demurrage 
or detention invoice.'') Maher Terminals proposed a revision to the 
definition that would have made clear that when an MTO bills on behalf 
of a VOCC/NVOCC/BCO that the VOCC/NVOCC/BCO is the billing party.
    FMC response: In the scenario described above, it is assumed that 
the MTO would be acting as an agent of the VOCC/NVOCC/BCO. Whether an 
MTO must comply with the rule in this case depends upon the contractual 
duties of the MTO as an agent. Traditional rules of agency remain 
applicable under the Shipping Act.\62\ According to the Restatement 
(Third) Of Agency Sec.  1.01 (2006): ``As defined by the common law, 
the concept of agency posits a consensual relationship in which one 
person, to one degree or another or respect or another, acts as a 
representative of or otherwise acts on behalf of another person with 
power to affect the legal rights and duties of the other person. . . 
.'' The principal has a right to control the actions of the agent, but 
``a principal's failure to exercise the right of control does not 
eliminate it.'' Restatement (Third) Of Agency Sec.  1.01 (2006). The 
Restatement also notes that an enforceable contract, written or oral, 
does not need to exist for there to be a principal-agent relationship. 
Restatement (Third) Of Agency Sec.  1.01 (2006).
---------------------------------------------------------------------------

    \62\ E.g., Landstar Exp. Am., Inc. v. Fed. Mar. Comm'n, 569 F.3d 
493, 495 (D.C. Cir. 2009).
---------------------------------------------------------------------------

    While the circumstances of each case must be known to make any 
particular determination as to whether an agency relationship exists, 
it is fair to assume, based on the Restatement's description of agency 
that the majority of instances where MTOs collect demurrage and 
detention charges on behalf of another party likely create an agency 
relationship. Thus, except to the extent that a principal VOCC or NVOCC 
has not delegated their obligations under 46 U.S.C. 41104, the agent-
MTO must assume those obligations when acting to collect demurrage and 
detention charges. Of course, the exact principal-agent relationship is 
open to negotiation between the principal and agent. An agent is free 
to negotiate the specific acts they will or will not undertake on 
behalf of the principal. It is possible that in a particular MTO-
principal demurrage and detention billing relationship that the MTO is 
responsible for providing all of the invoice elements in 46 U.S.C. 
41104(d)(2) while in another MTO-principal demurrage and detention 
billing relationship that the MTO complies with only certain elements 
of 46 U.S.C. 41104(d)(2) and that the invoice must be sent back to the 
principal for completion of the other elements before the invoice is 
issued to the billed party.
2. 46 U.S.C. 41104(e), NVOCC Safe Harbor
    Issue: One commenter said that the proposed rule did ``not address 
the safe harbor provision provided to NVOCCs at 46 U.S.C. 41104(e), 
which exempts NVOCCs from the demurrage and

[[Page 14336]]

detention invoice requirements and, importantly, liability for any 
invoice inaccuracies when the NVOCC passes through an underlying ocean 
common carrier's invoice.'' \63\ The commenter requested that the rule 
be modified ``to ensure NVOCCs remain exempt from the demurrage and 
detention requirements when passing through the charges or invoice.''
---------------------------------------------------------------------------

    \63\ National Customs Brokers & Forwarders Association of 
America, Inc. (FMC-2022-0066-0180).
---------------------------------------------------------------------------

    FMC response: The commenter misinterprets the language of 46 U.S.C. 
41104(e). The statute does not exempt NVOCCs from the demurrage and 
detention invoice requirements of 46 U.S.C. 41104(d)(2). It merely 
shifts responsibility for refunds or penalties under 46 U.S.C. 
41104(d)(1) in the certain, specified scenario from the NVOCC to the 
ocean common carrier. The safe harbor provision is most applicable in a 
situation where an NVOCC receives an invoice from a VOCC and passes it 
on to its customers. In order for the safe harbor provision to apply, 
however, OSRA 2022 requires the Commission to make a finding that the 
non-vessel-operating common carrier is not otherwise responsible for 
the charge. The Commission declines to make a general finding as part 
of this rulemaking that all NVOCCs are ``not otherwise responsible'' 
for errors in invoices they pass through. Rather, this is a fact-based 
analysis that the Commission undertakes on a case-by-case basis. If the 
Commission finds in a particular matter that a violation of 46 U.S.C. 
41104(d)(1) has occurred and also has made the relevant finding under 
46 U.S.C. 41104(e) that the NVOCC is not otherwise liable, only then is 
the safe harbor provision applicable.
    As discussed in the NPRM, there are important reasons for requiring 
NVOCCs to comply with detention and demurrage invoicing requirements: 
invoices that a BCO receives from an NVOCC may be their only notice of 
detention and demurrage charges and 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.\64\ 
The intent of this rulemaking is to ensure that the person receiving 
the bill understands the charges regardless of who the billing party 
is.
---------------------------------------------------------------------------

    \64\ 87 FR 62341, 62347.
---------------------------------------------------------------------------

C. Sec.  541.3 Definitions

1. ``Billing Dispute''
    Issue: One commenter raised two concerns about the proposed 
definition of ``billing dispute.'' \65\ First, the commenter was 
concerned that under the proposed definition, an MTO may not know when 
a ``mere billing inquiry is tantamount to a `disagreement' with respect 
to a specific invoice.'' Second, the commenter was concerned that the 
word ``raised'' does not ``provide adequate guidance in this context as 
it suggests that a disagreement is being broached for discussion 
purposes rather than being clearly conveyed to the billing party as a 
disagreement.''
---------------------------------------------------------------------------

    \65\ Maher Terminals, LLC (FMC-2022-0066-0269).
---------------------------------------------------------------------------

    FMC response: The Commission has removed the term ``billing 
dispute'' from Sec.  541.3 in the final rule. ``Billing dispute'' does 
not need to be defined because it is not a term used in Sec. Sec.  
541.4-541.99, in either the NPRM or final rule. ``Dispute'' is used in 
Sec.  541.6(d), but only in the paragraph header and does not require 
further definition.
2. ``Billed Party'' and ``Billing Party''
(a) Responsibility for Payment
    Issue: One commenter requested that the definition of ``billed 
party'' be amended by replacing ``is responsible for the payment of any 
incurred demurrage or detention charge'' with ``has contracted with the 
billing party for the ocean carriage or storage of good.'' \66\ They 
were concerned that the language ``responsible for the payment'' 
``reads as a legal conclusion'' and did not comport with the 
Commission's goal that demurrage and detention invoices be billed to 
persons having a contractual relationship with the billing party for 
the carriage or storage of goods. Another commenter requested that the 
Commission amend the definition of ``billed party'' to include motor 
carriers that control containers to account for situations where VOCCs 
enter directly into written contracts with motor carriers that use 
containers in the transportation of goods.\67\
---------------------------------------------------------------------------

    \66\ Shippers Coalition (FMC-2022-0066-0160).
    \67\ Metro Group Maritime (FMC-2022-0066-0209).
---------------------------------------------------------------------------

    FMC response: The Commission declines to make the requested 
changes. With respect to the first comment, the definition of ``billed 
party'' is simply to clarify the rights and responsibilities of the 
party receiving the bill. It is a fact-based definition centered on who 
the party is to whom the billing party issues the invoice. The 
definition is not the basis of an assessment of whether the billed 
party properly received the invoice, which is governed by Sec.  541.4. 
Nothing in this rule prohibits third parties from receiving copies of 
invoices or voluntarily paying demurrage or detention charges on behalf 
of the shipper/consignee.
    In regard to the second comment, there seems to be a 
misunderstanding on the commenter's part about the rule's 
applicability. As discussed in the NPRM, a primary purpose of this rule 
is to stop demurrage and detention invoices from being sent to parties 
who did not negotiate contract terms with the billing party. That 
concern is not present where a motor carrier has directly contracted 
with a VOCC. Nothing in this rule, either in the proposed or final 
version, prohibits a VOCC from issuing a demurrage or detention invoice 
to a motor carrier when a contractual relationship exists between the 
VOCC and the motor carrier for the motor carrier to provide carriage or 
storage of goods to the VOCC. The definition of ``billed party'' is 
intentionally broad to capture any party to whom a detention or 
demurrage invoice is issued. When a VOCC issues a detention or 
demurrage invoice to a motor carrier, the VOCC must comply with the 
requirements of part 541. The Commission has jurisdiction over common 
carriers, marine terminal operators (MTOs), and ocean transportation 
intermediaries (OTIs), including over through transportation. Without 
knowing the particulars of the hypothetical, in this situation, 
presumably the FMC's jurisdiction, and thus this rule, would apply only 
to cargo moved inland under a through bill of lading and contracts 
between a VOCC. A motor carrier not based on a through bill of lading 
would likely be outside the scope of this rule.
(b) Billing Party's Control of Assets
    Issue: One commenter was concerned that the Commission's proposed 
definition of ``billing party'' ``is missing the requirement that the 
entity issuing the invoice has the right to do so'' and ``[t]he 
regulations should recognize that there is a distinction between a 
billing party in control of the assets and one that is not, i.e., a 
non-vessel operating common carrier (NVOCC).'' \68\ The commenter 
suggested that the definition be amended to read as follows: Billing 
party means the ocean common carrier, marine terminal operator, or non-
vessel operating common carrier who issues a demurrage or detention 
invoice because they control the equipment and terminal space or are 
passing through the charges for collection.
---------------------------------------------------------------------------

    \68\ New York New Jersey Foreign Freight Forwarders & Brokers 
Association, Inc. (FMC-2022-0066-0247).

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[[Page 14337]]

    FMC response: The Commission declines to make the requested change. 
In this final rule, the Commission has added a 30-day period to Sec.  
541.7 for NVOCCs to issue an invoice when they pass through demurrage 
and detention charges. This is an acknowledgement that NVOCCs are not 
always in control of the assets and often receive an invoice from a 
VOCC. For more information, see Timeframes for NVOCCs in the discussion 
of comments regarding Sec.  541.7.
(c) Who is a person?
    Issue: Two comments expressed concern that the proposed definitions 
of ``billed party'' and ``billing party'' included the term ``person'' 
but did not provide further clarification on what ``person'' means for 
purposes of the rule.\69\ The commenters recommended either adding a 
cross reference to Sec.  515.2(n) in the definitions or defining 
``person'' in Sec.  541.3 consistent Sec.  515.2(n).
---------------------------------------------------------------------------

    \69\ Meat Import Council of America, Inc./North American Meat 
Institute (FMC-2022-0066-0188); Tyson Foods, Inc. (FMC-2022-0066-
0225).
---------------------------------------------------------------------------

    FMC response: The Commission agrees that identifying a definition 
for the term ``person'' can be helpful. It has added a definition of 
``person'' to Sec.  541.3 that aligns with Sec.  515.2(n).
(d) Consignees
    The Commission specifically sought comments on the NPRM as to 
whether it would be appropriate to allow common carriers to bill 
consignees named on the bill of lading as an alternative to the 
shipper.\70\ In response to commenters' support for including 
consignees as a party to whom an invoice can be properly billed, the 
Commission has revised the rule to incorporate this change. As part of 
this change, the Commission has added a definition of ``consignee'' to 
Sec.  541.3 in this final rule. For a full analysis of comments 
concerning allowing consignees to be billed, see the discussion of 
consignees under Sec.  541.4 concerning properly issued invoices.
---------------------------------------------------------------------------

    \70\ 87 FR 62341, 62350 (Oct. 14, 2022).
---------------------------------------------------------------------------

(e) NVOCCs
    Issue: One NVOCC commenter had concerns that the terms ``billed 
party'' and ``billing party'' ``do not clearly separate the position of 
the NVOCC,'' who, the commenter noted, can be both the billed party 
(when billed by the VOCC), and the billing party (when billing the BCO) 
on the same shipment.\71\
---------------------------------------------------------------------------

    \71\ CV International, Inc. (FMC-2022-0066-0217).
---------------------------------------------------------------------------

    FMC response: The Commission acknowledges that there are 
circumstances when an NVOCC is both a billed party and a billing party 
on the same shipment. As explained in more detail below in the response 
to Sec.  541.7(c), the Commission has amended the rule to allow an 
extra thirty (30) days for NVOCCs to issue an invoice when they are 
passing through the charges from a VOCC to a customer. The Commission 
has also added Sec.  541.7(c) to require that when an NVOCC informs a 
VOCC that its customer has disputed its invoice, the VOCC must then 
allow the NVOCC additional time to dispute the invoice it received from 
the VOCC. NVOCCs must still follow the correct procedures for issuing 
an invoice when acting as a ``billing party'' and are entitled to the 
same protections as other ``billed parties'' when acting in that 
capacity.
3. Demurrage and Detention
(a) Separate Definitions of ``Demurrage'' and ``Detention''
    Issue: Four comments requested that the rule separately define 
``demurrage'' and ``detention.'' \72\ In support of this change, 
commenters generally made generic statements about how billing 
practices are frequently different for demurrage compared to detention.
---------------------------------------------------------------------------

    \72\ BassTech International LLC (FMC-2022-0066-0230); National 
Retail Federation (FMC-2022-0066-0231); Pacific Merchant Shipping 
Association (FMC-2022-0066-0233); Ports America/SSA Marine (FMC-
2022-0066-0249).
---------------------------------------------------------------------------

    FMC response: The Commission has made the determination not to 
split ``demurrage and detention'' into separately defined terms because 
part 541 and OSRA 2022 treat both charges equally. It may be true that 
practices differ when billing demurrage versus detention. None of the 
commenters, however, provided sufficient evidence to support what these 
specific differences are and how they would require changes to the 
rule. The Commission will continue to monitor the matter and retains 
the authority to separately define these terms in a future rulemaking 
for these or other regulations if circumstances warrant.
(b) Ports/MTO Demurrage Versus VOCC/NVOCC Demurrage
    Issue: One commenter said that the rule needed to distinguish 
between demurrage and detention fees charged by ports and MTOs and 
those charged by VOCCs and NVOCCs because of the difference in 
underlying agreements and the fact that the charges serve different 
purposes.\73\
---------------------------------------------------------------------------

    \73\ American Association of Port Authorities (FMC-2022-0066-
0255).
---------------------------------------------------------------------------

    FMC response: The Commission declines to make the requested change. 
As noted in the NPRM, the definition of ``demurrage or detention'' in 
this rule 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.\74\ The Commission has the same goal in this rule of 
ensuring all charges having the purpose or effect of demurrage or 
detention are covered and believes the definition proposed is the most 
accurate.
---------------------------------------------------------------------------

    \74\ 87 FR 62341, 62348.
---------------------------------------------------------------------------

(c) Chassis and Other Special Equipment
    Issue: One commenter requested that the Commission expand the 
proposed definition of ``demurrage and detention'' to include charges 
related to the use of chassis and other special equipment.\75\
---------------------------------------------------------------------------

    \75\ Consumer Technology Association (FMC-2022-0066-0228).
---------------------------------------------------------------------------

    FMC response: The Commission declines to make the requested change. 
As noted in the NPRM, the definition of ``demurrage or detention'' in 
this rule is the same as the scope used in 46 CFR 545.5(b).\76\ Section 
7, paragraph (b)(2) of OSRA 2022 directs that this rulemaking ``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 2020 Interpretive Rule].'' Expanding the scope of 
the definition of ``demurrage and detention'' in this rule beyond the 
term's definition in the 2020 Interpretive Rule would be contrary to 
statute because it would require us to address issues not identified in 
that Interpretive Rule.
---------------------------------------------------------------------------

    \76\ 87 FR 62341, 62348.
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(d) ``Marine Terminal Space''
    Issue: The Commission received two comments related to the phrase 
``marine terminal space'' in the definition of ``demurrage and 
detention.'' New York New Jersey Freight Forwarders & Brokers 
Association, Inc. requested clarification of what ``marine terminal 
space'' means in the ``demurrage or detention'' definition.\77\ They 
asked whether ``marine terminal space'' includes when a through bill of 
lading is used to transport imported merchandise into an interior port 
or rail yard and suggested that specific language be added to the 
definition of ``detention and demurrage'' to clarify this. The other 
commenter, International Dairy Foods Association, requested that the 
Commission include a provision in the final rule indicating that 
container dwell fees are ``detention and demurrage charges'' since they 
are

[[Page 14338]]

``related to the use of marine terminal space.'' \78\
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    \77\ FMC-2022-0066-0247.
    \78\ FMC-2022-0066-0244.
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    FMC response: The Commission declines to make these changes. As 
noted in Section I, regarding inland rail, the Commission has 
jurisdiction over cargo moved inland pursuant to a through bill of 
lading. This jurisdiction is clear pursuant to Norfolk Southern Railway 
Co. v. Kirby, 543 U.S. 14 (2004). As a result, the Commission does not 
see a need to add this language specifically into this regulation. In 
response to International Dairy Foods Association, the Commission notes 
that the common definition of ``container dwell fees'' is 
interchangeable with the definition of ``detention and demurrage.'' As 
a result, the Commission declines to add another provision stating that 
container dwell fees are included in the rule's definition.
4. Additional Comments
(a) ``Designated Agent''
    Issue: Two comments requested that the Commission define in Sec.  
541.3 the term ``designed agent,'' which was used in Sec.  541.2 in the 
notice of proposed rulemaking.\79\
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    \79\ Meat Import Council of America, Inc./North American Meat 
Institute (FMC-2022-0066-0188); Tyson Foods, Inc. (FMC-2022-0066-
0225).
---------------------------------------------------------------------------

    FMC response: The Commission has not incorporated this request into 
the final rule. The term ``designated agent'' does not appear in any of 
the final regulatory text and thus including the term would not be 
useful or appropriate.
(b) ``Billable party for origin demurrage'', ``Billable party for 
destination demurrage'', and ``Billable party for detention''
    Issue: One commenter requested that the terms ``billable party for 
origin demurrage'', ``billable party for destination demurrage'', and 
``billable party for detention'' be added to Sec.  541.3 to ``[define] 
the appropriately billable parties'' associated with demurrage and 
detention charges.\80\
---------------------------------------------------------------------------

    \80\ BassTech International, LLC (FMC-2022-0066-0230).
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    FMC response: The Commission declines to make the proposed 
insertions. Just as the Commission determined not to split ``demurrage 
and detention'' into separate terms because the rule treats both 
charges equally, we also decline further delineations for origin 
demurrage, destination demurrage, and detention. The delineations are 
not required for the purposes of this rule.

D. Sec.  541.4 Properly Issued Invoices

    The Commission received many comments on proposed Sec.  541.4, the 
``Properly Issued Invoice'' provision. The majority of commenters, 
especially motor carriers and shippers, expressed support for the 
proposed rule. One commenter characterized this proposed provision as 
``critical to accomplishing the Commission's objective in the 
rulemaking.'' \81\
---------------------------------------------------------------------------

    \81\ E.g, Harbor Trucking Association (FMC-2022-0066-0261).
---------------------------------------------------------------------------

    Many commenters that supported the proposed provision noted that 
third parties do not have a contractual relationship with the ocean 
carrier.\82\ Accordingly, it would be difficult for such third parties 
to dispute demurrage or detention invoices because they are not aware 
of the terms of the contract under which the container was shipped. 
Instead, commenters observed that the person that contracted for the 
carriage of goods or space to store cargo had the most knowledge about 
the shipment and are in the best position to understand the shipment 
invoice and to dispute the invoice if needed.\83\ In addition, 
requiring that the billing party only invoice the person that 
contracted for carriage or storage of goods affirms that both the 
billing party and the billed party know the terms and conditions under 
which demurrage or detention may be charged.
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    \82\ See, e.g., Bipartisan House Comment (FMC-2022-0066-0279); 
T.G. Logistics, Inc. (FMC-2022-0066-0253); Retail Industry Leaders 
Association (FMC-2022-0066-0259); Meat Import Council of America, 
Inc./North American Meat Institute (FMC-2022-0066-0188); RPM Courier 
Systems (FMC-2022-0066-0120); Monica Rivera Beattie's Trucking Group 
(FMC-2022-0066-0115); Monk Transportation Ltd. (FMC-2022-0066-0117); 
Pacifica Trucks, LLC (FMC-2022-0066-0118); Harbor Freight Transport 
Corp. (FMC-2022-0066-0123); BBT Logistics, Inc. (FMC-2022-0066-
0127); Golden State Logistics (FMC-2022-0066-0158); Dependable 
Highway Express (FMC-2022-0066-0164); Impact Transportation (FMC-
2022-0066-0172); Tricon Transportation, Inc. (FMC-2022-0166-0174); 
RANTA Transport LLC (FMC-2022-0066-0175); Bridgeside Incorporated 
(FMC-2022-0066-0179); RED Trucking agents for Cowan Systems LLC 
(FMC-2022-0066-0181); FOX Intermodal Corp. (FMC-2022-0066-0185); 
Pacific Coast Container Inc. (FMC-2022-0066-0194); Bonelli 
Logistics, Inc. (FMC-2022-0066-0196); DELKA Trucking, Inc. (FMC-
2022-0066-0221); A1 Dedicated Transport, LLC (FMC-2022-0066-0232); 
Mutual Express Company (FMC-2022-0066-0243); Dray Trucking, LLC 
(FMC-2022-0066-0258). Several commenters highlighted the importance 
of prohibiting common carriers from invoicing parties.
    \83\ American Chemistry Council (FMC-2022-0066-0184).
---------------------------------------------------------------------------

    Furthermore, several commenters asserted that because there is a 
contractual relationship between the billing and billed parties, there 
would be a greater incentive to provide timely and accurate invoices as 
well as a greater willingness to resolve disputes.\84\
---------------------------------------------------------------------------

    \84\ See, e.g., Eagle Systems, Inc. (FMC-2022-0066-0203); 
Association of Bi-State Motor Carriers (FMC-2022-0066-0212); Harbor 
Trucking Association (FMC-2022-0066-0090).
---------------------------------------------------------------------------

    Commenters stated that ``parties who are not party to the ocean 
transportation contract and had no financial interests in the cargo 
itself, should not be subjected to detention [or] demurrage invoices.'' 
\85\ Commenters asserted that without a contractual relationship, third 
parties have little commercial leverage to dispute charges imposed upon 
them by common carriers.\86\
---------------------------------------------------------------------------

    \85\ Agriculture Transportation Coalition (FMC-2022-0066-0275).
    \86\ Id.
---------------------------------------------------------------------------

    Additionally, several commenters noted that the proposed provision 
would improve the current demurrage and detention billing process 
because the invoice would be sent to the person with the most knowledge 
of the terms of the contract.\87\ Because the invoice is going to the 
party who has this knowledge, one commenter asserted that this will 
streamline the entire billing process, reduce costs, and increase 
efficiency to the supply chain.\88\
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    \87\ Excargo Services Inc. (FMC-2022-0066-0151).
    \88\ Reliable Transportation Specialist, Inc. (FMC-2022-0066-
0214).
---------------------------------------------------------------------------

    Motor carriers and motor carrier trade organizations detailed 
several issues with the current system. For example, motor carriers 
frequently find themselves locked out from marine terminals for failure 
to pay detention charges as the motor carriers wait to receive payment 
from their customers.\89\ Essentially, under the current system, motor 
carriers, who are threatened with being locked out of terminals, can be 
trapped in situations where they have no contractual leverage or 
negotiating power to fight back.\90\ Such commenters stated that the 
current system does not adequately protect motor carriers from unfair 
billing practices.\91\ In addition, motor carrier and motor carrier 
trade organizations frequently stated that the party responsible for 
demurrage or detention charges is simply not them.\92\
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    \89\ Association of Bi-State Motor Carriers (FMC-2022-0066-
0212); Agriculture Transportation Coalition (FMC-2022-0066-0275); 
Intransit Container, Inc. (FMC-2022-0066-0227); Best Transportation 
(FMC-2022-0066-0090).
    \90\ Association of Bi-State Motor Carriers (FMC-2022-0066-
0212).
    \91\ Andale Trucking (FMC-2022-0066-0146).
    \92\ See, e.g., Cloud Trucking Inc. (FMC-2022-0066-0105).
---------------------------------------------------------------------------

    In addition, the proposed provision would reduce confusion with who 
is responsible for paying the invoice because it prohibits the billing 
party from invoicing more than one party.

[[Page 14339]]

    Although many commenters supported proposed Sec.  541.4, a few 
commenters, especially ocean common carriers and MTOs, expressed 
concerns with the proposed regulation.
1. Alternative Approaches
    Issue: A few commenters expressed concern with the Commission's 
analytical approach to the rule--using contractual relationships as the 
basis for establishing to whom demurrage and detention invoices should 
be sent. For example, Dole Ocean Cargo Express urged the Commission not 
to adopt a rule that ``categorically limits the entities to which ocean 
carriers may bill detention and/or demurrage charges.'' \93\ NITL 
recommended that instead of a contractual relationship-based approach, 
the Commission's rule should instead focus on which party ``is best 
able to comply with a carrier's reasonable demurrage and detention 
rules, except when an alternative party requests and assumes this 
responsibility in a written agreement with the carrier other than the 
bill of lading contract.'' On the opposite end of the spectrum, the 
National Retail Federation said that instead the Commission should 
provide clear rules for who can be billed for detention or demurrage 
and provided example language based on who, in their opinion has 
influence over occurrences of these charges.\94\ Hapag-Lloyd (America) 
LLC said that the rule's prohibition on issuing an invoice to any other 
person than the person for whose account the billing party provided 
ocean transportation or storage would slow down the release of cargo 
and complicate the process of properly assessing the lawfulness of a 
charge, particularly in the case of overseas shippers, and thus would 
not support cargo fluidity.\95\
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    \93\ FMC-2022-0066-0201.
    \94\ FMC-2022-0066-0231.
    \95\ FMC-2022-0066-0240.
---------------------------------------------------------------------------

    FMC response: After careful analysis, the Commission has determined 
that prohibiting billing parties from issuing demurrage and detention 
invoices to persons with whom they do not have a contractual 
relationship will best benefit the supply chain. If the billed party 
has firsthand knowledge of the terms of its contract, then they are in 
a better position to ensure that both they and the billing party are 
abiding by those terms. Although other parties may in some 
circumstances have more influence on whether demurrage or detention 
actually accrues, they are not the best party to understand the terms 
of the contract and dispute any charges. While there are benefits to 
bright-line rules such as the one suggested by the National Retail 
Federation, there are drawbacks as well. For example, the National 
Retail Federation's specific suggestion that drayage motor carriers 
potentially be the responsible billed party under certain conditions 
fails to account for situations where a motor carrier's delay is the 
result of no action of their own, but rather the result of the actions 
of others, such as MTOs cancelling appointments with little to no 
notice to the motor carrier. The Commission understands that some 
regulated parties will need to change their business practices in order 
to comply with this rule.
    Finally, the Commission does not believe that shippers located 
outside of the United States will serve as a basis of significant delay 
in the movement of cargo. As discussed in the preamble to the 
Interpretive Rule, shippers have commercial incentives to get their 
cargo off terminal, and modern digital Information Technology systems 
allow for prompt communications between parties, regardless of 
potential vast geographical distances.\96\
---------------------------------------------------------------------------

    \96\ 85 FR 29638, 29652.
---------------------------------------------------------------------------

2. Meaning of ``Contracted With''
    Issue: The Commission received several comments requesting 
clarification about the proposed requirement that the party ``must have 
contracted'' for the carriage or storage of goods. BassTech 
International LLC asked if, given that both the shipper and the 
consignee are parties to the bill of lading (which is the contract of 
carriage), this meets the Commission's intended criteria.\97\ BassTech 
also asked whether, alternatively, the regulatory language is meant to 
limit invoicing to a party that has entered into a Service Contract 
with the ocean carrier for the transportation of the cargo.\98\ The 
National Customs Brokers & Forwarders Association of America, Inc. 
requested guidance on whether a consignee may be considered to have a 
contract with a common carrier when listed on a bill of lading.\99\ 
Other comments on this issue raised questions about implied contracts. 
The Shippers Coalition was concerned about implied contracts being used 
as the basis for an invoice and suggested that the Commission require 
in the regulation that these contracts be in writing.\100\ Finally, 
several MTOs requested clarification or acknowledgement by the 
Commission about their right to enforce a published Terminal Schedule 
as an implied contract against a BCO or trucker that enters the 
terminal.\101\
---------------------------------------------------------------------------

    \97\ FMC-2022-0066-0230.
    \98\ ``Service Contract'' is defined at 46 U.S.C. 40102(21).
    \99\ FMC-2022-0066-0180.
    \100\ FMC-2022-0066-0160.
    \101\ TraPac (FMC-2022-0066-0136); Fenix Marine Services (FMC-
2022-0066-0186); West Coast MTO Agreement (FMC-2022-0066-0229). 
Furthermore, ``schedule'' is defined by FMC regulations at 46 CFR 
525.1(c)(17).
---------------------------------------------------------------------------

    FMC response: ``Contract'' in this rule has its normal and ordinary 
legal meaning.\102\ This can be reflected in a document such as a 
contract of affreightment, for example, or a bill of lading, which 
courts have held to be maritime contracts.\103\ Because contracts 
(other than contracts implied by law) require a meeting of the minds, 
merely listing a party on a bill of lading, or other shipping 
transportation document, is not sufficient for them to become a billed 
party for purposes of part 541 if they played no role in contracting 
for the transportation of the cargo. Whether a meeting of the minds has 
occurred is something that can vary based on the specific circumstances 
of a given relationship. Because a contract can exist even if not 
memorialized in writing, the Commission declines to add a requirement 
that contracts need to be in writing for purposes of this rule. The 
Commission notes, however, that written contracts can provide important 
documentary evidence of agreement. In addition, the Commission notes 
that the term ``contracts'' for the purposes of Sec.  541.4 is not 
limited to service contracts; the term is broader given its normal and 
ordinary legal meaning and a contractual relationship can exist without 
a written document or specific form.
---------------------------------------------------------------------------

    \102\ See, e.g., Norfolk Southern Railway Co. v. Kirby, 543 U.S. 
14, 16 (2004) (``[C]ontracts for carriage of goods by sea must be 
construed like any other contracts: by their terms and consistent 
with the intent of the parties''); Contract, Black's Law Dictionary 
(11th ed. 2019).
    \103\ E.g., Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14 
(2004).
---------------------------------------------------------------------------

    This rule does not prohibit or otherwise limit an MTO from 
maintaining the practice of issuing any party--including BCOs or Motor 
Carriers--an invoice based on a Terminal Schedule, including charges 
for detention or demurrage, if the Terminal Schedule includes such 
charges and the Schedule has been made available in accordance with 46 
CFR 525.3. In fact, the practice of issuing invoices based on a 
Terminal Schedule that includes those charges continue to be 
permissible if they are just and reasonable as stated in 46 CFR 545.4. 
The consistent application of the Terminal Schedule charges to various 
customers is likely to be done on a normal, customary, and continuous

[[Page 14340]]

basis, meeting that crucial element of the interpretive rule. Also, as 
noted by commenters, 46 U.S.C. 40501(f) and 46 CFR 525.2(a)(2) 
establish that such Schedules are enforceable as implied contracts. 
Under such a scenario, a Motor Carrier has a contractual relationship 
with the MTO and the terms of the contract (the Schedule) are known to 
the Motor Carrier in advance by operation of 46 CFR 523.3. This is a 
very different situation than where a Motor Carrier is billed for 
demurrage or detention and the Motor Carrier has no contractual 
relationship with the billing party and is not privy to the specifics 
of the contractual agreement (such as where a Motor Carrier is billed 
demurrage or detention based on an agreement between a shipper and a 
billing party).
    This rule does require that when an MTO issues a bill for demurrage 
or detention for purposes of enforcing a Terminal Schedule, the billing 
must comply with part 541, including providing all the information 
required by Sec.  541.6. The Commission recognizes that this may 
require MTOs to revise their current business practices. The 
Commission's primary concern with this rule is to ensure that billed 
parties understand the demurrage or detention invoices they 
receive.\104\ Additional burdens on MTOs to be able to provide the 
necessary data, which the Commission does not believe to be unduly 
burdensome, is outweighed by the benefits of transparency, which will 
allow billed parties to verify the accuracy of demurrage and detention 
charges and with whom the charges originate (for example, the MTO 
itself or the VOCC). As discussed in the Commission's Order of 
Investigation for Fact Finding Investigation No. 28, the lack of 
visibility surrounding current MTO demurrage and detention billing 
practices ``have raised questions over whether the current practices 
allow for a competitive and reliable American freight delivery 
system.'' \105\
---------------------------------------------------------------------------

    \104\ E.g., 87 FR 62341, 62347.
    \105\ FMC Order of Investigation, Fact Finding Investigation No. 
28, 2 (2018). The Order of Investigation and other materials related 
to Fact Finding 28 are available on the Commission's website at 
https://www.fmc.gov/fact-finding-28/.
---------------------------------------------------------------------------

3. Consignees
    Issue: Noting 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, the Commission sought comments 
in the NPRM on whether it would be appropriate to also include the 
consignee named on the bill of lading as another person who may receive 
a demurrage or detention invoice, thus allowing the common carrier to 
bill either the person who contracted for the shipment of the cargo or 
consignee named on the bill of lading.\106\ The Commission received 29 
comments in response. Three comments said that invoices should be sent 
to contractual parties only.\107\ These commenters said consignees were 
not the party responsible for payment,\108\ or that consignees 
typically do not have enough knowledge to determine whether the billing 
information is consistent with the terms of the underlying 
contract.\109\ Two comments said that invoices should be sent only to 
consignees.\110\ The International Tank Container Organisation (ITCO) 
opposed allowing charges to be sent back to the shipper, saying that it 
would ``further complicate an already complex supply chain and hinder 
both efficient operations and global trade.'' \111\ ITCO asserted doing 
so ignores the INTERCOMS understanding and will put the United States 
in conflict with international trading terms.\112\
---------------------------------------------------------------------------

    \106\ 87 FR 62341, 62349-62350.
    \107\ Meat Import Council of America, Inc./North American Meat 
Institute (FMC-2022-0066-0188); International Association of Movers 
(FMC-2022-0066-0222); and Consumer Technology Association (FMC-2022-
0066-0228).
    \108\ International Association of Movers (FMC-2022-0066-0222).
    \109\ Consumer Technology Association (FMC-2022-0066-0228).
    \110\ International Tank Container Organisation (FMC-2022-0066-
0096); Flexport, Inc. (FMC-2022-0066-0111).
    \111\ FMC-2022-0066-0096.
    \112\ INTERCOMS (International Commercial Terms) are a set of 
standardized trade terms published by the International Chamber of 
Commerce (ICC) that are commonly used in international trade 
contracts.
---------------------------------------------------------------------------

    The vast majority of comments (24), however, were of the opinion 
that the rule should make allowances for sending invoices to the 
shipper or the consignee (in at least some scenarios).\113\ Comments 
that supported allowing invoices to be sent to consignees generally 
said that consignees should be included because: (1) consignees are 
frequently the party best situated to mitigate against the accrual of 
demurrage and detention charges and (2) consignees frequently have the 
most knowledge about a shipment and therefore best able to dispute any 
charges. A few supporters put qualifiers on when they thought 
consignees should be allowed to be invoiced. For example, SM Line said 
that consignees should be included as a potential party to be billed 
but that the Commission should not limit billed parties according to 
how, and whether the party appears on a specific bill of lading.\114\ 
In contrast, Shippers Coalition and the American Association of 
Exporters and Importers said that consignees should only be allowed to 
be invoiced if there is an advance written agreement between the 
carrier and consignee to do so.\115\
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    \113\ Shippers Coalition (FMC-2022-0066-0160); FedEx Trade 
Networks Transport & Brokerage, Inc. (FMC-2022-0066-0165); American 
Association of Exporters and Importers (FMC-2022-0066-0168); 
National Customs Brokers & Forwarders Association of America, Inc. 
(FMC-2022-0066-0180); SM Line Corp. (FMC-2022-0066-0182); American 
Chemistry Council (FMC-2022-0066-0184); International Housewares 
Association (FMC-2022-0066-0187); A Customs Brokerage, Inc. (FMC-
2022-0066-0200); Dole Ocean Cargo Express (FMC-2022-0066-0201) 
(would prefer no limits on who an invoice could be issued to but 
included statements that a consignee is sometimes the proper person 
to be billed); National Association of Chemical Distributors (FMC-
2022-0066-0208); Metro Group Maritime (FMC-2022-0066-0209); Consumer 
Brands Association (FMC-2022-0066-0210); CV International (FMC-2022-
0066-0217); Seafrigo USA Inc. (FMC-2022-0066-0223); West Coast MTO 
(FMC-2022-0066-0229); Bass Tech International LLC (FMC-2022-0066-
0230); National Retail Federation (FMC-2022-0066-0231); Pacific 
Merchant Shipping Association (FMC-2022-0066-0233); Connection 
Chemical LP (FMC-2022-0066-0236); World Shipping Council (FMC-2022-
0066-0242); Husky Terminal and Stevedoring LLC (FMC-2022-0066-0248); 
New York New Jersey Foreign Freight Forwarders and Brokers 
Association, Inc. (FMC-2022-0066-0247); Ocean Carrier Equipment 
Management Association, Inc. (FMC-2022-0066-0257); Cheese Importers 
Association of America (FMC-2022-0066-0265).
    \114\ FMC-2022-0066-0182.
    \115\ Shippers Coalition (FMC-2022-0066-0160); National 
Association of Exporters and Importers (FMC-2022-0066-0168).
---------------------------------------------------------------------------

    FMC response: In light of these comments, the Commission has made 
changes to this final rule to allow consignees to be billed as an 
alternative to the shipper when the consignee is the party contracting 
for the shipping and is therefore in contractual privity with the 
carrier. The Commission does not adopt the concept in the proposed 
rule's preamble that consignees should be required to be listed on the 
bill of lading in order to be billed. Rather, it is the consignee's 
contractual privity with the shipper that determines whether the 
consignee can be billed. Merely listing the consignee on the bill of 
lading is not sufficient to support billing the consignee. (Conversely, 
although presumably a less common scenario, it is possible to properly 
issue an invoice to a consignee that has not been listed on the bill of 
lading.) Corresponding to the changes in Sec.  541.4 which allow 
consignees to be billed, the Commission has also added a definition of 
``consignee'' to Sec.  541.3. This definition comports with the 
definition of ``consignee'' that appears in Sec.  520.2 so as to align 
this definition with the rest of the CFR, while containing language

[[Page 14341]]

that further clarifies the consignee's place in the chain of shipping 
transactions for purposes of demurrage and detention billing practices. 
As such, and consistent with the comments, the rule finds a middle 
ground between acknowledging that a consignee may be the correctly 
billed party in some cases, but not all. The Commission encourages, but 
is not requiring, advance written agreements between carriers and 
consignees regarding demurrage and detention billing.
4. Payment by Third Parties Generally
    Issue: The Commission received four comments regarding allowing 
payment of invoices by third parties.\116\ The Agriculture 
Transportation Coalition and Pacific Coast Council of Customs Brokers 
and Freight Forwarders Association requested that the rule include a 
clear mandate that the delegation payment authority is allowed but must 
be based on actual acceptance of such responsibility by the third 
party, such as a written or digital signature evidencing acceptance. 
FedEx Trade Networks and John S. Connor, Inc. requested that the rule 
specify that third parties may only receive copies of invoices and pay 
them with the billed party's knowledge and consent (but did not say 
that such consent should be required to be in writing). FedEx Trade 
Networks and John S. Connor, Inc. also requested that the regulation 
contain an explicit statement that if a third party receives a copy of 
the invoice that the third party itself is not accountable for the 
payment.
---------------------------------------------------------------------------

    \116\ FedEx Trade Networks Transport & Brokerage, Inc (FMC-2022-
0066-0165); Pacific Coast Council of Customs Brokers and Freight 
Forwarders Association (FMC-2022-0066-0224); John S. Connor, Inc. 
(FMC-2022-0066-0267); and Agriculture Transportation Coalition (FMC-
2022-0066-0275).
---------------------------------------------------------------------------

    FMC response: The Commission does not believe that the suggested 
changes are necessary. The rule is clear in its direction that, with a 
limited exception for consignees, demurrage and detention invoices must 
be issued to the person for whose account the billing party provided 
ocean transportation or storage and who contracted with the billing 
party for the carriage or storage of goods. This will often, but not 
always, be the shipper of record. Outside of the exception for 
consignees, billing parties must not send invoices to third parties. 
The rule only mandates to whom the invoice can be issued and therefore 
who has legal liability to pay it. It is purposefully silent on third 
parties voluntarily paying an invoice--thus allowing the practice by 
declining to prohibit it. The Commission does not believe it is 
necessary to require such agreements to be in writing or otherwise 
memorialized between the billed party and the third party. The 
Commission does not believe it is the agency's place to dictate a third 
party's business liability decision in this scenario. A third party 
will either: (1) pay the invoice on behalf of the billed party based on 
a previous guarantee by the billed party that they will be reimbursed; 
or (2) pay the invoice without such an agreement in place and assume 
the risk that they potentially may not be reimbursed.

E. Sec.  541.5 Failure To Include Required Information

1. Invoice Attachments
    Issue: Four commenters requested clarification whether a billing 
party may provide the required data elements as an attachment, 
addendum, additional pages, etc. to their invoice, for reasons of 
convenience or necessity because of the invoice's length.\117\ FedEx 
Trade Networks asserted that when an NVOCC is merely passing through 
the VOCC's charges, it should be able to satisfy the requirements by 
attaching the ocean carrier's invoice.\118\
---------------------------------------------------------------------------

    \117\ New York New Jersey Foreign Freight Forwarders & Brokers 
Association, Inc. (FMC-2022-0066-0247); CV International, Inc. (FMC-
2022-0066-0217); National Customs Brokers & Forwarders Association 
of America, Inc. (FMC-2022-0066-0180); FedEx Trade Networks 
Transport & Brokerage, Inc. (FMC-2022-0066-0165).
    \118\ FMC-2022-0066-0165.
---------------------------------------------------------------------------

    FMC response: The required information may be included as an 
attachment to the invoice, as the statute simply requires that invoices 
``include'' this information. In addition, Sec.  541.6 states that an 
invoice must ``contain'' that information. As such, it is the 
Commission's position that this information may be included as an 
attachment, or otherwise incorporated. An NVOCC passing through VOCC 
demurrage or detention charges can satisfy the requirements by merely 
attaching the ocean carrier's invoice if that invoice contains all the 
necessary information in Sec.  541.6. If all the necessary information 
is not on the ocean carrier's invoice, the NVOCC must locate and amend 
the missing information prior to sending the invoice on.
2. Voiding of Invoice Too Extreme a Penalty
    A few commenters asserted that the penalty of having a billed party 
not be required to pay an invoice if the invoice was not compliant is 
an extreme penalty for a single violation.\119\ The National 
Association of Waterfront Employers (NAWE) additionally argued that 
such a stringent penalty is not consistent with the Commission's 
Interpretive Rule on 46 CFR 545.4, which requires more than a single 
instance to something that happens on a ``normal, customary, and 
continuous basis.'' \120\
---------------------------------------------------------------------------

    \119\ E.g., National Association of Waterfront Employers (FMC-
2022-0066-0276); Ports America/SSA Marine (FMC-2022-0066-0249); Port 
Houston (FMC-2022-0066-0268).
    \120\ FMC-2022-0066-0202.
---------------------------------------------------------------------------

    FMC response: The elimination of the billed party's obligation to 
pay an invoice that lacks the required information is statutorily 
mandated under 46 U.S.C. 41104(f) for common carriers. As such, 46 CFR 
541.5 merely states what the statute already requires and the 
Commission lacks discretion to eliminate or relax this requirement. 
Section 41104(f) does allow the elimination of payment obligation for 
``an invoice'' that does not meet the contents of the invoice 
requirements. This language signals Congress' desire to not require 
that a common carrier repeat the error multiple instances for a shipper 
to be able to seek relief. Thus, in the demurrage and detention 
context, the statutory language of section 41104(f) is clear and 
unambiguous in requiring only a single instance to trigger the 
elimination of the obligation to pay the inaccurate invoice and 
supersedes the ``more than one instance'' interpretation of the 
``normal, customary, and continuous basis'' language found in 46 CFR 
545.4.
    Similarly, pursuant to 46 U.S.C. 41102(c), it is a prohibited 
practice for an MTO to fail to include the required minimum information 
in a demurrage and detention invoice sent to a party other than a VOCC. 
Sending incomplete bills that do not contain sufficient information for 
shippers to verify if the bills received are accurate would not 
constitute having just and reasonable practices relating to or 
connected with receiving, handling, storing or delivering property. 
Extending the elimination of charge obligations provision at 46 U.S.C. 
41104(f) to MTOs issuing demurrage and detention invoices would meet 
the statutory direction that the Commission must ``further define 
prohibited practices by . . . marine terminal operators, . . . under 
section 41102(c) of title 46, United States Code, regarding the 
assessment of demurrage or detention charges'' and ensure that all 
demurrage and detention bills sent to billed parties provide the 
necessary information for the bills to be paid or disputed quickly

[[Page 14342]]

thereby ensuring efficiency across the shipping system. Having the 
invoice content and elimination of charge obligations requirements for 
all billing parties be the same throughout the industry will ensure 
that there is more clarity and accuracy in invoicing throughout the 
shipping system.

F. Sec.  541.6 Contents of Invoice

1. Sec.  541.6(a), Identifying Information
(a) Sec.  541.6(a)(1), Bill of Lading and Sec.  541.6(a)(2), Container 
Number
    Issue: The Commission did not receive any comments directly 
addressing the requirement that the invoice must list the container 
number--presumably because this is a data element listed in OSRA 2022. 
A few commenters, however, raised concerns that requiring the bill of 
lading number, especially in conjunction with the container number, 
would increase the risk of theft of the cargo and create security risks 
by allowing for false pick-up appointments.\121\ Some of these comments 
further asserted that requiring bill of lading information to be 
included on the invoice would require significant and costly upgrades 
to their IT systems.
---------------------------------------------------------------------------

    \121\ TraPac, LLC (FMC-2022-0066-0136); Fenix Marine Services 
(FMC-2022-0066-0186); West Coast MTO Agreement (FMC-2022-0066-0229); 
National Association of Waterfront Employers (FMC-2022-0066-0276); 
Pacific Merchant Shipping Association (FMC-2022-0066-0233); Husky 
Terminal and Stevedoring, LLC (FMC-2022-0066-0248); Port Houston 
(FMC-2022-0066-0268).
---------------------------------------------------------------------------

    FMC response: The Commission disagrees with the commenters' 
assertion regarding potential security issues. The Commission 
previously addressed this concern when the issue was raised by the 
Ocean Carrier Equipment Management Association (OCEMA) in response to 
the ANPRM.\122\ Here, we reiterate and expand upon that response. Bill 
of lading numbers are available through publicly accessible import and 
export data systems, such as the Journal of Commerce's Port Import/
Export Reporting Services (PIERS) and are already frequently included 
on demurrage and detention invoices. Because bill of lading numbers are 
not confidential information, they are not a good basis for security 
measures. Container numbers are not protected information either. 
Container numbers are written on the outside of the container. Thus, 
like bill of lading numbers, they are not a good basis for security 
measures. Including an already publicly available number on an invoice 
does not increase security concerns. The commenters' claims also do not 
consider the multiple levels of security at the port that deter an 
incorrect party from taking the cargo. These security measures include 
basic security infrastructure such as perimeter fencing, security 
gates, monitoring equipment, and alarm systems, and other access 
control measures such as Port Security Plans and Transportation Worker 
Identification Credential (``TWIC'') requirements. Nor do their 
comments consider that the rule prohibits 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.
---------------------------------------------------------------------------

    \122\ 87 FR 62341, 62350 (Oct. 14, 2022).
---------------------------------------------------------------------------

    The bill of lading number and container number provide valuable 
identifying information to the billed party such as determining which 
shipment is being charged and a means of verifying accuracy of charges. 
Therefore, the Commission is retaining the requirement that this 
information be included on the invoice. The Commission recognizes that 
some billing parties may need to revise operations, including software 
and website updates, such as those related to how they generate cargo 
pick-up numbers. However, the Commission has no evidence to support a 
finding nor received data from commenters showing that such revisions 
would be time intensive or costly. Billing parties could, for example, 
for minimal time and cost, replace that portion of a pick-up number 
currently based on bill of lading number/container number with a number 
produced by a random number generator and doing so would be more secure 
than current systems that incorporate bill of lading numbers/container 
numbers into the pick-up number.
(b) Sec.  541.6(a)(3), Port(s) of Discharge
    Issue: New York New Jersey Foreign Freight Forwarders and Brokers 
Association requested the Commission amend Sec.  541.6(a)(3) to clarify 
that the port of discharge can be any U.S. port--ocean or interior--to 
address situations, for example, where cargo arrives at a West or East 
Coast port, or via Canada, and then moves by rail to the interior.\123\ 
The commenter was concerned that without the suggested clarification to 
the regulation there is the risk that the billed party would not 
receive the proper billing information to assess the correctness of 
invoices issued for charges incurred at interior ports.
---------------------------------------------------------------------------

    \123\ FMC-2022-0066-0247.
---------------------------------------------------------------------------

    FMC response: The commenter is correct that detention or demurrage 
invoices issued for cargo delivered on a through bill of lading under 
the Commission's jurisdiction are required under this rule to list all 
ports of discharge, ocean and inland. The Commission believes that this 
requirement is sufficiently incorporated into the language we proposed 
in the NRPM and have adopted in this final rule. The regulation's use 
of ``port(s),'' as opposed to ``port'' accounts for situations where 
there are multiple ports of discharge.
(c) Sec.  541.6(a)(4), Basis for Why the Billed Party Is the Proper 
Party of Interest
    Issue: The Commission received several requests from commenters to 
clarify what level of detail is necessary to satisfy the requirement 
that the invoice include the basis for why billed party is the proper 
party of interest and thus liable for the charge.\124\ Mediterranean 
Shipping Company specifically requested guidance as to whether the 
requirement would be satisfied with: (1) a reference to the applicable 
tariff rule supporting the billing; (2) specific reference needed to 
contractual provisions; or (3) a reference number to identify the 
contract at issue.\125\
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    \124\ National Customs Brokers & Forwarders Association of 
America, Inc. (FMC-2022-0066-0180); Mediterranean Shipping Company 
(FMC-2022-0066-0143); FedEx Trade Networks Transport & Brokerage, 
Inc. (FMC-2022-0066-0165); U.S. Dairy Export Council/National Milk 
Producers Federation (FMC-2022-0066-0235).
    \125\ FMC-2022-0066-0143.
---------------------------------------------------------------------------

    FMC response: There is no specific or set of specific documents or 
reference(s) that would meet the requirement of Sec.  541.6(a)(4). The 
purpose of the regulation is that billed parties must be able to 
identify why the billing party believes that they are responsible for 
paying the invoice and to refute that basis if they believe that they 
have been billed incorrectly. A reference to the applicable tariff rule 
supporting the billing, specific reference to contractual provisions, 
or a reference number to identify the contract at issue might all, or 
might all not, meet this standard depending on the specific 
circumstances of a particular invoice.
(d) Requests for Additional Identifying Information
    Issue: The U.S. Department of Agriculture requested that the 
Commission also require billing parties include on the invoice 
transportation history information, such the date and time a container 
was loaded on or off a vessel, and the date and time the vessel left or 
arrived at the port.\126\ The Meat

[[Page 14343]]

Import Council of America, Inc. (MICA) and the North American Meat 
Institute proposed that the Commission should require billing parties 
to identify on the invoice the vessel(s) used to transport the 
cargo.\127\ These commenters believe that these additional data 
elements on the invoice would increase transparency and help billed 
parties in verifying calculations of free time, availability, and 
earliest-return-date, and thus make it easier to identify and dispute 
excess charges.
---------------------------------------------------------------------------

    \126\ FMC-2022-0066-0274.
    \127\ FMC-2022-0066-0188.
---------------------------------------------------------------------------

    FMC response: The Commission agrees that having this additional 
information may be helpful in some circumstances. The Commission, 
however, has not been presented with enough evidence to be convinced 
that the potential benefits to some billed parties on some invoices 
outweigh the burden to billing parties by requiring this information on 
all invoices. The Commission will continue to monitor detention and 
demurrage billing trends and retains the authority to revise non-
statutorily mandated detention and demurrage invoice data elements in 
the future if it determines there is a need to do so.
(e) Billing Exceptions
    Issue: The American Association of Exporters and Importers (AAEI) 
supported Sec.  541.6 and the required contents of the invoice.\128\ 
AAEI also stated that if demurrage and detention charges are incurred 
or removed due to terminal or vessel operating deficiencies, then the 
invoices should include the details with standardized categories of 
billing exceptions.
---------------------------------------------------------------------------

    \128\ FMC-2022-0066-0168.
---------------------------------------------------------------------------

    FMC response: The Commission declines to add a requirement for 
billing exceptions to Sec.  541.6. Under OSRA 2022, the billing party 
has an obligation to ensure the accuracy of its invoices. In addition, 
Sec.  541.8 specifies the procedures for disputing charges--these 
disputes can be initiated if the billed party feels they are not 
responsible for the charges. As a result, the Commission declines to 
proscribe that billing parties deduct certain charges, especially given 
that there could be disagreement over where the fault in the charges 
lies.
2. Sec.  541.6(b), Timing Information
(a) Sec.  541.6(b)(1), Invoice Date
    Issue: The National Customs Brokers & Forwarders Association of 
America,\129\ CV International,\130\ and New York New Jersey Foreign 
Freight Forwarders and Brokers Association, Inc.\131\ asked the 
Commission to clarify whether backdating of invoices is permissible 
under this rule, or whether the billing date on demurrage and detention 
invoices should reflect the actual date an invoice is mailed out or 
otherwise finalized. John S. Connor, Inc. agreed, saying that 
backdating is a common practice that must not be allowed.\132\ National 
Industrial Transportation League raised related concerns about some 
carriers continuing to assess charges during the time spent to process 
payments after payment has been made by the billed party or its 
agent.\133\
---------------------------------------------------------------------------

    \129\ FMC-2022-0066-0180.
    \130\ FMC-2022-0066-0217.
    \131\ FMC-2022-0066-0247.
    \132\ FMC-2022-0066-0267.
    \133\ FMC-2022-0066-0277.
---------------------------------------------------------------------------

    FMC response: Billing parties have an obligation under 46 U.S.C. 
41104(d)(2) to issue detention and demurrage invoices that contain 
accurate information concerning the statutorily specified data elements 
as well as any additional information determined necessary by the 
Commission. To solidify this point, the Commission has incorporated 
into Sec.  541.6 the requirement for accurate information. Accuracy is 
an implied legal condition of any statutory or regulatory information 
collection imposed on regulated parties by Congress or agencies and is 
generally not specifically incorporated as a written requirement. 
However, based on these comments, it appears that such clarification in 
the regulatory text may be of use to regulated parties and its 
incorporation mirrors the use of the word in 46 U.S.C. 41104(d).
(b) Sec.  541.6(b)(2), Invoice Due Date
    Issue: Seafrigo USA urged the Commission to clarify the meaning of 
``billing due date,'' and specifically asked whether it means the 
payment due date.\134\ The Meat Import Council of America, Inc. and the 
North American Meat Institute, in a joint comment, suggested that 
billing parties must be prohibited from listing the payment due date as 
the same date the invoice is issued as billed parties should have the 
full 30 days after an invoice is received, not simply issued.\135\ The 
U.S. Department of Agriculture recommended that the Commission specify 
in the regulation the timeframe for payment of an invoice, making 
certain that the regulation is clear that payment is not due until any 
disputes are resolved.\136\ Fenix Marine Services stated that the 
proposed demurrage and detention invoice requirements are incompatible 
with traditional MTO billing practices, and changing their practice to 
conform to the FMC's rule would mean a major overhaul of many MTO's 
longstanding billing practices.\137\
---------------------------------------------------------------------------

    \134\ FMC-2022-0066-0223.
    \135\ FMC-2022-0066-0188.
    \136\ FMC-2022-0066-0274.
    \137\ FMC-2022-0066-0186.
---------------------------------------------------------------------------

    FMC response: The billing due date (or ``invoice due date'' as 
worded in this final rule) is the date by which the billed party must 
pay the invoiced charges. The Commission has revised Sec.  541.8(a) to 
make clear that billing parties must allow billed parties at least 30 
calendar days from the invoice issuance date to request mitigation, 
refund, or waiver of fees. Correspondingly, the due date of an invoice 
must be on or after 30 days after it is issued. As discussed in the 
NPRM and elsewhere in this document, the Commission acknowledges that 
this rule may require some billing parties to change their billing 
information technology systems and practices.
(c) Sec.  541.6(b)(3)-(5), Free Time
    Issue: One commenter requested that ``end of free time'' in Sec.  
541.6(b)(5) be defined as ``the end of free time as determined by the 
ocean common carrier or marine terminal, whichever, is later'' because 
ocean common carriers and marine terminal may have disparate last free 
day dates.\138\
---------------------------------------------------------------------------

    \138\ FedEx Trade Networks Transport & Brokerage, Inc. (FMC-
2022-0066-0165).
---------------------------------------------------------------------------

    FMC response: The Commission declines to define ``end of free 
time'', ``start of free time'', or ``free time'' as part of this 
rulemaking for the reason noted by the commenter--their meaning can 
vary terminal to terminal.\139\ The Commission does not have evidence 
at this time to support a finding that standardizing these terms is 
warranted.
---------------------------------------------------------------------------

    \139\ See 85 FR 29638, 29654.
---------------------------------------------------------------------------

(d) Sec.  541.6(b)(6), Container Availability Date
    Issue: Two NVOCCs requested clarification of the meaning of 
``availability date'' in Sec.  541.6(b)(6).\140\ One of the commenters 
requested that FMC define the term in Sec.  541.3.\141\ A third 
commenter said that the term ``availability date'' creates too much 
ambiguity in that some shipments may be delayed in customs resulting 
from actions taken or not taken by the receivers and import customs 
brokers.\142\ They argued that vessel arrival date should be used 
instead because actual time of arrival of the

[[Page 14344]]

vessel is clearly defined and gives NVOCCs a clear date from which to 
start the clock.
---------------------------------------------------------------------------

    \140\ Seafrigo USA (FMC-2022-0066-0223); DHL Global Forwarding 
(FMC-2022-0066-0219).
    \141\ Seafrigo USA (FMC-2022-0066-0223).
    \142\ International Tank Container Organisation (FMC-2022-0066-
0096).
---------------------------------------------------------------------------

    FMC response: The Commission declines to incorporate the 
commenters' suggestions. First, the date of container availability is 
statutorily mandated by 46 U.S.C. 41104(d)(2)(A). Congressional action 
would be needed to change it to vessel arrival date. Second, the 
Commission declines to add a definition of ``availability date'' to 
Sec.  541.3 for the same reason we declined to define it in our 2020 
final Interpretive Rule on demurrage and detention--``availability'' 
can vary by port or marine terminal.\143\ As we discussed there: 
``Suffice it to say, availability at a minimum includes things such as 
the physical availability of a container: Whether it is discharged from 
the vessel, assigned a location, and in an open area (where 
applicable).'' \144\ Additionally, as discussed in the Interpretive 
Rule's notice of proposed rulemaking: ``In this context, `cargo 
availability' or `accessibility' refers to the actual ability of a 
cargo interest or trucker to retrieve its cargo. Cargo is not 
available, for instance, if a cargo interest or trucker cannot pick it 
up because it is in a closed area of a terminal, or if the port is 
closed.'' \145\ We adopt the meaning for these terms provided in the 
Interpretive Rule in this rule as well.
---------------------------------------------------------------------------

    \143\ 85 FR 29638, 29654 (May 18, 2020) (internal citation 
omitted).
    \144\ Id.
    \145\ 84 FR 48850, 48852 (Sept. 17, 2019) (internal citation 
omitted).
---------------------------------------------------------------------------

(e) Sec.  541.6(b)(7), Earliest Return Date
    A number of comments raised the issue of earliest return date. 
Intermodal Motor Carriers Conference urged the Commission to clarify 
OSRA 2022's earliest return date, and to require that date on the 
detention and demurrage invoice.\146\ The International Tank Container 
Organisation (ITCO) noted that OSRA 2022 requires that the earliest 
return date be specified, while this rule does not require it on the 
invoice.\147\ ITCO opined that the term ``availability date,'' which is 
currently used in the rule, creates too much ambiguity. Balsam Brands 
\148\ and Harbor Trucking Association \149\ said that the earliest 
return date should be listed for export shipments, and any 
modifications to this date should be identified. The New York New 
Jersey Foreign Freight Forwarders and Brokers Association, Inc. 
(NYNJFF&BA) stated that the requirement to provide the earliest return 
date for export shipment should be understood as meaning the first 
notice for receiving containers at ports, as this notice sets the rest 
of the process in motion for getting a container back on a vessel.\150\ 
NYNJFF&BA states that if demurrage and detention can be charged in 
instances when cargo remains at the terminal beyond the free time as a 
result of VOCC decisions, then there is no incentive to improve the 
information and receiving window dates in the early return date (ERD) 
notices. When containers are delivered per ERD notices, the cargo 
waiting for a new vessel cannot be incentivized by the imposition of 
demurrage and detention to reduce time at the terminal.
---------------------------------------------------------------------------

    \146\ FMC-2022-0066-0189.
    \147\ FMC-2022-0066-0096.
    \148\ FMC-2022-0066-0095.
    \149\ FMC-2022-0066-0262.
    \150\ FMC-2022-0066-0247.
---------------------------------------------------------------------------

    To strengthen the rule's requirements, the National Association of 
Chemical Distributors \151\ and Connection Chemical \152\ suggested 
that the Commission add the term ``accurate'' before the earliest 
return date, to ensure that any changes to this date are reflected as 
conditions change. CV International stated that earliest return dates 
change frequently because of unreliable vessel schedules and congested 
terminals.\153\ As a result, CV International suggested that when a 
container is in motion, the earliest advised return date should apply. 
John S. Connor, Inc. made similar comments.\154\
---------------------------------------------------------------------------

    \151\ FMC-2022-0066-0208.
    \152\ FMC-2022-0066-0236.
    \153\ FMC-2022-0066-0217.
    \154\ FMC-2022-0066-0267.
---------------------------------------------------------------------------

    The Meat Import Council of America, Inc. (MICA) and the North 
American Meat Institute (NAMI) jointly argued that the final rule 
should not diminish the significance of intervening, clock-stopping 
events when a billed party disputes the charges.\155\ MICA/NAMI 
suggests that the Commission requiring including earliest return date 
and changes to that date on detention and demurrage invoices would 
increase transparency and minimize billing disputes. Lastly, the 
National Customs Brokers and Forwarders Association of America 
requested clarification and Commission guidance on how billing parties 
should account for data elements in the minimum invoice information 
requirements where dates, such as the earliest return dates, 
change.\156\
---------------------------------------------------------------------------

    \155\ FMC-2022-0066-0188.
    \156\ FMC-2022-0066-0180.
---------------------------------------------------------------------------

    FMC response: The Commission declines to make the commenters' 
changes requested regarding earliest return date in this rule. This is 
an issue that the Commission will continue to examine. For example, the 
Commission issued a Request for Information in August 2023 seeking 
comments on what shippers and BCOs can do to better predict container 
earliest return dates.\157\
---------------------------------------------------------------------------

    \157\ 88 FR 55697, 55698 (Aug. 16, 2023) (Question 6).
---------------------------------------------------------------------------

    In addition, Commissioner Rebecca Dye has proposed to reform three 
practices of ocean carriers and marine terminal operators at the Ports 
of Los Angeles and Long Beach, and the Port of New York and New Jersey 
that relate to earliest return date, container returns, and container 
pickup (notice of availability).\158\ Commissioner Dye encourages 
reactions or questions regarding these proposals from the shipping 
public. More information on this project may be found on FMC's website.
---------------------------------------------------------------------------

    \158\ https://www.fmc.gov/commissioner-dye-proposes-reforms-to-international-ocean-supply-chain-practices/ (July 26, 2023).
---------------------------------------------------------------------------

(f) Sec.  541.6(b)(8), Date(s) for Which Demurrage and/or Detention 
Were Charged
    Issue: TraPac LLC stated that requiring billing parties to include 
the specific dates on which demurrage or detention is charged would, 
for MTOs, result in an unnecessary burden on terminals as MTOs would 
need to develop a reporting system to provide information regarding the 
container's status on a ``clock start'' and ``clock stop'' basis.\159\ 
According to the commenter: (1) it is not reasonable or realistic to 
expect MTOs to transmit information in real time; and (2) if not in 
real time, it could result in significant delay. Consumer Technology 
Association said that the Commission should require disclosure of any 
relevant ``stop-the-clock'' events that toll the passage of free time--
such as container availability, facility closures, port congestion, or 
lack of available appointment slots. They said that having this 
information would greatly facilitate the timely resolution of disputes 
but noted that this information is often only available to billing 
parties.\160\ BassTech International LLC suggested that, for emphasis 
of the billing party's obligation for the accurate assessment of 
charges, the Commission change ``were charged'' to ``were incurred and 
charged.'' \161\
---------------------------------------------------------------------------

    \159\ FMC-2022-0066-0136.
    \160\ FMC-2022-0066-0228.
    \161\ FMC-2022-0066-0230.
---------------------------------------------------------------------------

    FMC response: As discussed in the NPRM, instead of requiring 
billing parties to identify specific ``clock-stopping'' events on 
demurrage and detention invoices, this rule requires the billing 
parties to identify the specific

[[Page 14345]]

dates on which they charged demurrage or detention.\162\ The 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 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.
---------------------------------------------------------------------------

    \162\ 87 FR 62341, 62351.
---------------------------------------------------------------------------

(g) General Comments
    Issue: One commenter said that any schedule data on invoices must 
include all previous revisions and not only the final dates.\163\ The 
commenter said such information was necessary because issues on exports 
in demurrage and detention invoices are caused by last minute schedule 
changes over which the shipper has no control.
---------------------------------------------------------------------------

    \163\ Anonymous (FMC-2022-0066-0093).
---------------------------------------------------------------------------

    FMC response: The Commission declines at this time to mandate that 
billing parties include all previous revisions. We do not believe that 
enough evidence has been presented to the Commission at this time to 
justify the increased burden of such a requirement. However, we will 
continue to monitor the issue of demurrage and detention invoices and 
may consider this or other additional changes in the future if 
circumstances warrant.
3. Sec.  541.6(c), Rate Information
    The Commission did not receive comments regarding proposed Sec.  
541.6(c). It is adopting the proposed language from the NPRM in this 
final rule with minor, non-substantive, clarifying amendments. In 
paragraph (c), ``The invoice'' has been changed to ``A demurrage or 
detention invoice'' to reflect the language of Sec.  541.3. Paragraph 
(c) has also been amended to clarify that these are minimum 
requirements. Paragraph (c)(2) has been amended by adding terminal 
schedule to the listed examples of documents, and ``i.e.,'' has been 
changed to ``e.g.,'' to reflect that this is not an exhaustive list of 
all possible documents.
4. Sec.  541.6(d), Dispute Information
(a) Sec.  541.6(d)(1)
    One commenter suggested eliminating paragraphs (d)(2) and (3) and 
merging the necessary information into a single paragraph Sec.  
541.6(d) to read as follows: ``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 
including the name, email, telephone number and mailing address of the 
responsible person to whom invoice questions or notifications of a 
billing dispute must be submitted.'' \164\ According to the commenter, 
the proposed revision ``prevent[s] the imposition of potentially 
unreasonable or obstructive processes by the billing party'' and 
instead allows disputes to be handled following the standard business 
practice for similar events.
---------------------------------------------------------------------------

    \164\ BassTech International LLC (FMC-2022-0066-0230).
---------------------------------------------------------------------------

    FMC response: The Commission declines to make the suggested 
changes. Subsection (d)(1) already accomplishes what the proposed 
changes seek. In addition, this rule makes dispute resolution simpler, 
more consistent, and transparent. These are the same goals that the 
Commission espoused in the Interpretive Rule, which the commenter 
acknowledges in their submission. In addition, the ``conventional 
manner'' in which these disputes have been handled ``in the normal 
course of business'' for which the commenter advocates have until now 
not always been successful and resulted in practices that resulted in 
OSRA 2022 and this rulemaking. Maintaining the existing model would 
fail to address the reasons behind the statute and this rulemaking.
(b) Sec.  541.6(d)(2), Information on How To Request Fee Mitigation, 
Refund, or Waiver
    Issue: The Commission received a number of comments regarding the 
proposed requirement in Sec.  541.6(d)(2) that the URL address of a 
publicly accessible part of the billing party's website provide a 
detailed description of what the billed party must provide to request 
fee mitigation, refund or waver. Two commenters said that the proposed 
URL requirement would be too burdensome. One of these commenters urged 
the Commission to instead adopt a requirement that allows for any 
method of delivery of such information to the shipper so long as it 
includes a transparent description of the required information.\165\ 
The other commenter said that the proposal could lead to burdensome 
procedures that are inconsistent with the shifting of the burden of 
proof regarding reasonableness of the charges from shippers to carriers 
that OSRA 2022 espouses.\166\ Six commenters were in support of the URL 
requirement.\167\ The International Dairy Foods Association stated that 
this requirement ``will help cargo owners easily find and understand 
what information they need to include in such requests. This will 
improve the efficiency of the dispute process and make it less likely 
that requests are denied on procedural grounds.'' \168\
---------------------------------------------------------------------------

    \165\ Seafrigo USA Inc. (FMC-2022-0066-0223).
    \166\ National Retail Federation (FMC-2022-0066-0231).
    \167\ International Tank Container Organisation (FMC-2022-0066-
0096); International Dairy Foods Association (FMC-2022-0066-0244); 
and the Retail Industry Leaders Association (FMC-2022-0066-0259).
    \168\ FMC-2022-0066-0244.
---------------------------------------------------------------------------

    Three additional commenters all said the rule would benefit from 
expanding the acceptable digital platforms beyond URLs to include QR 
codes or digital watermarks, for example, so that information regarding 
the dispute process can be retrieved to keep pace with evolving 
innovations and technologies.\169\ The Meat Import Council of America, 
Inc. and the North American Meat Institute proposed replacing ``URL 
address'' with either ``[a] digital trigger (URL address, QR code, 
digital watermark or other similar digital triggers) to the publicly-
accessible 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'' or ``[a] digital trigger to the publicly-accessible 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.'' \170\
---------------------------------------------------------------------------

    \169\ Meat Import Council of America, Inc. and the North 
American Meat Institute (FMC-2022-0066-0188); Tyson Foods Inc. (FMC-
2022-0066-0225); and the Agriculture Transportation Coalition (FMC-
2022-0066-0275).
    \170\ FMC-2022-0066-0188.
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    FMC response: The Commission disagrees with the two commenters' 
assertion that the proposed requirement is too burdensome. While there 
may be some initial time/infrastructure requirements in order for some 
billing parties to comply, those will be minimal, and the benefits of 
transparency to billed parties greatly outweigh these minimal burdens. 
In response to commenters, the Commission has added language to Sec.  
541.6(d)(2) to expand this category from URLs to digital means more 
generally, including URLs, QR codes and other digital means that would 
allow this requirement to keep pace with technology.

[[Page 14346]]

(c) Sec.  541.6(d)(3), Disclosure of Timeframe for Requesting a Fee 
Mitigation, Refund, or Waiver
    The Commission did not receive comments regarding proposed Sec.  
541.6(d)(3) and is adopting the proposed language from the NPRM in this 
final rule.
5. Sec.  541.6(e), Certifications
(a) Sec.  541.6(e)(1), Certification of Compliance With FMC Demurrage 
and Detention Rules
    Issue: The International Tank Container Organisation \171\ and 
Maher Terminals LLC \172\ argued that the certification of compliance 
is not necessary given that it is legally required for regulated 
parties to comply with Commission regulations. Maher Terminals also 
expressed concern that such a certification would require billing 
parties ``to state as a fact a matter that which is really a conclusion 
of law.'' \173\
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    \171\ FMC-2022-0066-0096.
    \172\ FMC-2022-0066-0269.
    \173\ Id.
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    FMC response: Certification that the billing party's charges are 
consistent with FMC detention and demurrage rules is required by 46 
U.S.C. 41104(d)(2)(L). Accordingly, the Commission will include it in 
the rule.
(b) Sec.  541.6(e)(2), Certification That Billing Party's Performance 
Did Not Cause or Contribute to the Underlying Invoiced Charges
    Issue: One commenter said that the certification statement should 
reflect an NVOCC's more limited liability in instances where it is 
simply passing through the charges from a VOCC and, as with the other 
required elements on the invoice, is just a vehicle and not the 
responsible party.\174\ They provided the following sample 
certification statement for the Commission's consideration: ``To the 
best of our knowledge the charges on this invoice are a direct pass 
through and compliant with the requirements of the Shipping [Act] of 
1984 as amended by [OSRA 2022] and that our NVOCC did not cause, 
contribute, or mark up these underlying charges.''
---------------------------------------------------------------------------

    \174\ A Customs Brokerage, Inc. (FMC-2022-0066-0200).
---------------------------------------------------------------------------

    FMC response: The Commission declines to change the proposed 
language and finalizes it in this rule. A billing party has a legal 
obligation to include accurate information on each of the invoice 
elements found in Sec.  541.6. In accordance with 46 U.S.C. 41104, the 
Commission will make a determination if a particular self-certification 
is inaccurate or false only after an investigation following filing of 
a charge complaint.
(c) MTOs
    Issue: Four commenters argued that MTOs do not have the information 
necessary to make these certifications and certifications should not be 
required of MTOs because of the burden it would impose on them to 
collect the necessary information, and further, such certification 
would not address the Commission's primary concern, which is having 
transparent and clear invoices for billed parties to clearly understand 
billed charges.\175\ A fifth commenter asserted that imposing these 
certifications on MTOs is beyond OSRA 2022.\176\
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    \175\ The National Association of Waterfront Employers (FMC-
2022-0066-0276); Husky Terminal and Stevedoring, LLC (FMC-2022-0066-
0248); and Ports America/SSA Marine (FMC-2022-0066-0249).
    \176\ Maher Terminals LLC (FMC-2022-0066-0269).
---------------------------------------------------------------------------

    FMC response: In instances where an MTO invoices a shipper, the 
Commission has determined that the MTO should be subject to the same 
regulations that apply to VOCCs and NVOCCs, including certification 
requirements. As discussed earlier in this preamble, the Commission has 
statutory authority to apply this rule to MTOs. Paragraph (c) of 
section 41102, title 46, United States Code, prohibits MTOs from 
failing to establish, observe, and enforce reasonable practices 
connected to the receiving, handling, storing, or delivering of 
property. This section provides clear and direct authority for the 
Commission to regulate MTO practices connected to the receiving, 
handling, storing, or delivery of cargo, including mandating 
certification requirements. In addition, OSRA 2022 explicitly 
instructed the Commission to issue a rule defining prohibited practices 
by common carriers, marine terminal operators, shippers, and ocean 
transportation intermediaries under 46 U.S.C. 41102(c) regarding the 
assessment of demurrage and detention charges. MTOs are not required to 
include the data elements listed in Sec.  541.6 when they are issuing 
invoices to VOCCs.
(d) Additional Certification/Disclaimer
    Issue: One comment said that the rule should include a requirement 
on the invoice or the accompanying website a note that reminds the 
billed party that if the information is incorrect or details are 
missing, then the shipper is not obligated to pay the invoice.\177\
---------------------------------------------------------------------------

    \177\ The U.S Dairy Export Council/National Milk Producers 
Federation (FMC-2022-0066-0235).
---------------------------------------------------------------------------

    FMC response: At this time, the Commission will not impose 
additional mandatory certifications/disclaimers on top of those found 
in OSRA 2022, as codified at 46 U.S.C. 41104(d)(2)(L) and (M). 
Nonetheless, the agency recognizes the potential benefits of such a 
statement and does not object to the voluntary adoption of this 
practice.
(e) Independent Assessment
    Issue: One commenter posited that in addition to the self-
certification requirements of OSRA 2022, the Commission should also 
consider requiring billing parties to utilize an independent third-
party certification body, from an official roster of such bodies that 
is recognized by the Commission, to conduct an annual audit of billing 
party's detention and demurrage practices and provide an annual report 
to the FMC with its findings.\178\ According to the commenter, the 
self-certification requirements of OSRA 2022 provide no benefit to 
billed parties as they do not prevent ``over-invoicing by carriers.'' 
According to the commenter, since the self-certification requirements 
took effect with the passage of OSRA 2022, their members ``have 
received detention and demurrage invoices that included such a 
statement, that were later refunded or waived by the carrier when 
disputed because the carrier issued the invoice after having rolled 
shippers' bookings for weeks on end.'' \179\
---------------------------------------------------------------------------

    \178\ International Dairy Foods Association (FMC-2022-0066-
0244).
    \179\ Id.
---------------------------------------------------------------------------

    FMC response: The Commission declines to adopt this change at this 
time. The Commission will continue to monitor the situation following 
implementation of this final rule and may take additional action(s) in 
the future if circumstances warrant.
6. Contents of Invoice, Generally
(a) Machine-Readable Invoice Data
    Issue: A few commenters indicated their support for the Commission 
to explore mandating that invoice data be provided in electronic, 
computer-readable format, such as spreadsheets. American Chemistry 
Council \180\ and Consumer Brands Association,\181\ for example, 
highlighted that providing computer-readable data invoices would allow 
for faster and more accurate analysis of demurrage charges and 
associated data. American Chemistry Council \182\ and Agriculture

[[Page 14347]]

Transportation Coalition \183\ both noted in their comment that U.S. 
Surface Transportation Board (STB) regulations require Class I 
railroads to provide machine-readable access to demurrage billing 
information.
---------------------------------------------------------------------------

    \180\ FMC-2022-0066-0090.
    \181\ FMC-2022-0066-0210.
    \182\ FMC-2022-0066-0184.
    \183\ FMC-2022-0066-0275.
---------------------------------------------------------------------------

    FMC response: Electronic invoices have a number of benefits for 
billing parties and billed parties, and the Commission highly 
encourages billing parties to adopt computer-readable invoice formats 
into their standard operating procedures. The Commission, however, has 
chosen not to mandate usage at this time due to concerns about the 
current low rate of infiltration of electronic documentation processes 
within the industry. The Journal of Commerce, for example, recently 
reported that: ``[o]nly 2.1% of bills of lading and waybills in the 
container trade were electronic last year.'' \184\ The Commission will 
continue to monitor the use of machine-readable invoices within the 
industry and may consider compulsory use in the future.
---------------------------------------------------------------------------

    \184\ Greg Knowler, Key supply chain stakeholders commit to 
electronic bills of lading, Journal of Commerce, Sept. 5, 2023 
(https://www.joc.com/article/key-supply-chain-stakeholders-commit-electronic-bills-lading_20230904.html).
---------------------------------------------------------------------------

(b) MTOs
    Issue: One comment asserted that if the Commission requires 
demurrage or detention invoices issued by MTOs to contain information 
in addition to those elements specifically enumerated in OSRA 2022, it 
should ``recognize the nature of MTO pass through charges and either 
afford MTO invoices a conceptually similar safe harbor, or not compel 
MTOs to provide such information.'' \185\
---------------------------------------------------------------------------

    \185\ Ports America/SSA Marine (FMC-2022-0066-0249).
---------------------------------------------------------------------------

    FMC response: While the most common practice is for MTOs to invoice 
the VOCC and the VOCC to send a combined invoice to the shipper, in 
some cases MTOs bill shippers directly. The Commission's primary 
concern with this rule is to ensure that billed parties understand the 
demurrage or detention invoices they receive. In instances where an MTO 
invoices a shipper, the MTO should be subject to the same regulations 
that apply to VOCCs and NVOCCS when they invoice shippers.

G. Sec.  541.7 Issuance of Demurrage or Detention Invoices

1. Sec.  541.7(a), Timeframe for Issuing an Invoice
    Issue: The Commission received 109 comments on its proposal to 
require billing parties to issue detention and demurrage invoices 
within 30 days: one from another federal agency, 16 from BCOs, 66 from 
motor carriers, 10 from NVOCCs/OTIs/Customs Brokers/Third-party 
logistics (3PLs), 10 from individuals, and 6 from VOCCs/MTOs.
    The U.S. Department of Agriculture supported the 30-day time 
limit.\186\ Fifteen of the 16 BCOs supported the 30-day requirement. 
One BCO thought that 30 days was too long and that the deadline should 
be 10 days.\187\ All of the motor carriers other than the Intermodal 
Association of North America (IANA), which administers the UIAA 
supported the 30-day time limit. The IANA advocated for the Commission 
to follow the UIAA standard of 60 days to issue demurrage and detention 
invoices (UIAA Section E.6).\188\ All of the NVOCC/OTI/Customs Brokers/
3PLs supported the 30-day deadline.
---------------------------------------------------------------------------

    \186\ FMC-2022-0066-0274.
    \187\ National Fisheries Institute (FMC-2022-0066-0256).
    \188\ FMC-2022-0066-0157.
---------------------------------------------------------------------------

    VOCCs/MTOs and their trade associations were mixed in their 
responses. Intransit Container fully supported a deadline of 30 
days.\189\ The World Shipping Council (WSC) \190\ and the American 
Association of Port Authorities \191\ supported a deadline but said 
that the deadline should align with the UIAA standard of 60 days. Port 
Houston \192\ and the Ocean Carrier Equipment Management Association, 
Inc. (OCEMA) \193\ were adamant that the Commission should not impose a 
deadline at all. OCEMA said that if a deadline was imposed, it should 
be no later than the UIAA standard. OCEMA acknowledged that the 
Commission based their deadline of 30 days on an understanding that 
billing parties are capable of issuing demurrage or detention invoices, 
on average, within 30 days. OCEMA, however, believes that justification 
was not adequately supported and potentially flawed. First, OCEMA said 
that the Commission did not explain how the average was derived, and it 
was therefore unclear how many of the transactions exceeded 30 days. 
Second, OCEMA asserted that in making its determination, the Commission 
did not consider the potential sources of delay for those invoices that 
take more than 30 days to be issued, such as delays in transmission of 
essential data by third parties, IT system capabilities and differing 
levels of automation regionally in the invoicing process, personnel and 
labor shortages, force majeure events, or cyber-attacks or system 
outages. Related to this point, OCEMA also asserts that the Commission 
did not take into consideration that under a free-contract system, 
parties sometimes come to an agreement for longer deadlines in light of 
the circumstances applicable to a particular shipment for a given 
shipper or consignee's product supply chain.
---------------------------------------------------------------------------

    \189\ FMC-2022-0066-0227.
    \190\ FMC-2022-0066-0242.
    \191\ FMC-2022-0066-0255.
    \192\ FMC-2022-0066-0268.
    \193\ FMC-2022-0066-0257.
---------------------------------------------------------------------------

    The VOCCs and their trade associations also complained that the 
proposal is unfair. Hapag-Lloyd (America) LLC argued that the proposal 
provides no consequences for failure to timely submit a dispute to an 
invoice, so it is unclear what incentive billed parties have to respond 
quickly.\194\ WSC said that billed parties would face no consequences 
for failing to meet the deadline to dispute an invoice, while billing 
parties forfeit contractual rights by missing the deadline. WSC argued 
that fundamental fairness, equal protection, and due process dictate 
the Commission must add language to impose similar requirements on 
billed parties, namely that they forfeit the right to request fee 
mitigation, refund, or waiver by failing to submit that request within 
30-days from receiving the invoice. OCEMA focused on the fact that the 
rule includes no flexibility for delays outside the billing parties' 
control, for instance caused by third parties, that prevent compliance 
with the 30-day deadline to issue invoices. Finally, OCEMA argued that 
the 30-day deadline could turn out to create a disincentive principle 
since shippers or truckers in possession of equipment will no longer 
feel compelled to return it quickly as the unavailability of data or 
other tools to delay billing will prevent billing parties from meeting 
the 30-day deadline.
---------------------------------------------------------------------------

    \194\ FMC-2022-0066-0240.
---------------------------------------------------------------------------

    BassTech International LLC stated that the proposed rule's 
invoicing requirements do not address the need for invoicing ``on 
demand'' in instances where payment is a prerequisite for cargo 
release, such as is customary for import demurrage charges.\195\ As 
such, they suggested revising Sec.  541.7(a) to read as follows: ``A 
billing party must issue a demurrage or detention invoice within thirty 
(30) days from the date on which the charge was last incurred or, when 
payment of charges is a precondition for delivery of cargo or 
containers, on demand. If the billing party does not issue demurrage or 
detention invoices within the required

[[Page 14348]]

timeframe, then the billed party is not required to pay the charge.''
---------------------------------------------------------------------------

    \195\ FMC-2022-0066-0230.
---------------------------------------------------------------------------

    FMC response: The Commission will maintain the 30 days proposed in 
the NPRM. The Commission explained in the NPRM why a deadline of 30 
days for issuing demurrage or detention invoices is reasonable.\196\ 
WSC and OCEMA suggest the Commission should prove why other deadlines 
are unreasonable before proposing a deadline, but the Commission 
declines this invitation to try to prove a negative. WSC and OCEMA did 
not offer concrete examples of why billing parties could not comply 
with a 30-day deadline, and instead made reference to delays caused by 
third parties without offering specifics of the types of delays they 
routinely face or how long they take to resolve.\197\ The Commission 
does not agree with the argument that the deadline in the rule is 
insufficiently supported.
---------------------------------------------------------------------------

    \196\ 87 FR 62341, 62354.
    \197\ FMC-2022-0066-0242; FMC-2022-0066-0257.
---------------------------------------------------------------------------

    Neither is the Commission persuaded by commenters stating that it 
should follow widely accepted and longstanding practices. The text of 
OSRA 2022 indicates it was written to help remedy dysfunctional, 
predatory, and unfair invoicing permitted by these accepted and 
longstanding practices.\198\ The complaint that this proposal is unfair 
and inequitable to carriers misunderstands the regulation's approach to 
implementing OSRA. The rule provides a minimum time for the dispute of 
detention and demurrage invoices, after which billing parties are free 
to reject any further attempts at dispute as untimely. The rule does 
not lay out penalties for failure by a billed party to timely dispute 
an invoice, because it is up to the billing party to choose how to 
remedy that failure.
---------------------------------------------------------------------------

    \198\ See Testimony of Chairman Maffei before Congress: ``Review 
of Fiscal Year 2024 Budget Request for the Federal Maritime 
Transportation Programs, and Implementation of the Ocean Shipping 
Reform Act of 2022,'' March 23, 2023, available at https://www.fmc.gov/testimony-of-chairman-maffei-before-congress-review-of-fy2024-budget/; Statement by President Joe Biden on Congressional 
Passage of Ocean Shipping Reform Act, June 13, 2022, available at 
https://www.whitehouse.gov/briefing-room/statements-releases/2022/
06/13/statement-by-president-joe-biden-on-congressional-passage-of-
ocean-shipping-reform-act/
#:~:text=Statement%20by%20President%20Joe%20Biden%20on%20Congressiona
l%20Passage%20of%20Ocean%20Shipping%20Reform%20Act,-
Home&text=Lowering%20prices%20for%20Americans%20is,American%20retaile
rs%2C%20farmers%20and%20consumers.
---------------------------------------------------------------------------

2. Sec.  541.7(b), Invoices Sent to an Incorrect Party
    Issue: The U.S. Department of Agriculture expressed concern about 
billed parties incurring additional costs of unexpected and harder-to-
verify charges in situations where the invoice was originally sent to 
the wrong person.\199\ USDA urged that the Commission remove from the 
rule the proposed grant of additional time to the billing party to 
issue an invoice to a billed party when the invoice was originally 
issued to an incorrect person (and that original recipient disputed the 
charges). USDA asserted that the carrier should, in all circumstances, 
have 30 days from the date charges stop accruing to bill the correct 
party.
---------------------------------------------------------------------------

    \199\ FMC-2022-0066-0274.
---------------------------------------------------------------------------

    Hapag-Lloyd (America) LLC noted that the rule provides no 
consequences for failing to timely dispute an invoice.\200\ They 
asserted that, given the requirement that billing parties must issue 
corrected invoices within 60 days, the rule actively dissuades billed 
parties from timely settling disputes. The World Shipping Council 
pointed out that 46 CFR 541.7(b) sets a hard deadline of 60 days after 
the charges were last incurred by which the correct party must be 
invoiced but if a billing party uses 30 days to issue the invoice and 
the billed party takes 30 days to dispute the invoice, there is no time 
left to bill another party before the 60-day invoicing deadline.\201\ 
WSC said that this would result in the correct party not having to pay 
the invoice and billed parties being incentivized to delay disputing 
invoices.
---------------------------------------------------------------------------

    \200\ FMC-2022-0066-0240.
    \201\ FMC-2022-0066-0242.
---------------------------------------------------------------------------

    Another commenter requested that paragraph (b) be deleted from 
Sec.  541.7 ``and to leave this exceptional circumstance to be handled 
through reasonable and conventional business practice . . . .'' \202\
---------------------------------------------------------------------------

    \202\ BassTech International LLC (FMC-2022-0066-0230).
---------------------------------------------------------------------------

    FMC response: The final rule removes the link between a billing 
party's ability to reissue an invoice with an incorrectly billed 
party's disputing of that invoice. With this reworded language, the 
billing party must reissue the invoice to the correct party within 30 
calendar days of when the charges were last incurred. Otherwise, the 
billed party is not required to pay the charges. This penalty is 
consistent with the language and purposes of OSRA 2022. It also 
reflects the Commission's position that the billing party should only 
be issuing a demurrage and detention invoice to a billed party based on 
their contractual privity with that billed party, and that this invoice 
should be sent to the correct party in the first instance. Tying the 
issuance of the corrected invoice to when the demurrage and detention 
charges stop accruing is consistent with the incentive present in the 
rest of the rule. The burden of issuing a correct invoice should not 
rely on an incorrectly billed party to dispute the incorrect invoice. 
The change is also consistent with the comments received on the NPRM.
3. Timeframes for NVOCCs
    Issue: The Commission solicited comments in the NPRM on whether 
different timeframes should apply to NVOCCs. Most commenters supported 
applying the same timelines to NVOCCs and VOCCs. However, when NVOCCs 
pass through demurrage or detention invoices assessed against their 
customers, it may be difficult for them to issue demurrage and 
detention invoices within the required timeframe if the NVOCC does not 
receive the initial invoice in a timely manner. Therefore, the 
Commission requested comments on how it could best reflect the 
application of the deadline to NVOCCs that pass through demurrage or 
detention charges. A number of NVOCCs commented that Sec.  541.7's 
thirty (30) calendar-day timeframe for a billing party to issue an 
invoice did not allow time for an NVOCC to issue an invoice when it 
passes through the charges. Many of these comments supported adding 
additional time to Sec.  541.7 for NVOCCs to issue an invoice. Some of 
the comments suggested specific extra time that ranged from 21 days to 
60 days. Many suggested an extra 30 days because the initial billing 
party had 30 days to issue an invoice, and NVOCCs should be given the 
same amount of time. CMA CGM argued that it is vital that the deadline 
for resolution not be triggered until all the information required to 
support the dispute is submitted to the carrier and that the rule 
should emphasize, not undermine, the carriers' publicly available 
dispute resolution process.
    FMC response: In response to these comments, the Commission has 
amended Sec.  541.7 to state that NVOCCs have an additional thirty (30) 
calendar days in which to issue an invoice. This 30-day period runs 
from the date on which the invoice the NVOCC received was issued. In 
addition, the Commission recognizes the fact that an NVOCC can be both 
a billed party and a billing party with respect to the same 
transaction, and that in such a situation, the NVOCC may not be in a 
position to dispute an invoice with a VOCC until the NVOCC's customer 
has disputed the invoice with the NVOCC. As such, the Commission has 
added Sec.  541.7(c) to require that when an NVOCC informs a VOCC that

[[Page 14349]]

its customer has disputed its invoice, the VOCC must then allow the 
NVOCC additional time to dispute the invoice it received from the VOCC.
4. Ability To Cure an Invoice Not in Compliance With Sec.  541.6
    Issue: A number of commenters requested the ability to correct an 
invoice that lacked certain information or contained incorrect data. 
FedEx Trade Networks, for example, stated that the ability to cure an 
invoice error is reasonable, especially given that a billed party is 
not required to pay the invoice in the face of any error.\203\ 
Commenters also sought clarification on the timing of amendments, if 
amendments are allowable. FedEx Trade Networks stated that each billing 
party should have the same amount of time to correct the invoice, as an 
error that originates with the VOCC may need to be remedied by the 
ocean carrier and each subsequent billing party. CV International 
suggested that the billing party have two working days from the time 
the billed party communicates the error to make the corrections, during 
which time no additional demurrage and detention charges should 
accrue.\204\ The New York New Jersey Foreign Freight Forwarders and 
Brokers Association, Inc. echoed these sentiments and also suggested 
that billed parties should be required to notify the billing party of 
any errors within a specific time frame, such as seven days.\205\ John 
S. O'Connor Logistics made similar suggestions as well.\206\ U.S. Dairy 
Export Council/National Milk Producers Federation requested 
clarification regarding a carrier's submission of a corrected invoice, 
and whether that must that be completed within the 30-day timeframe, or 
whether it restarts the clock.\207\ Connection Chemical requested 
similar clarification.\208\
---------------------------------------------------------------------------

    \203\ FMC-2022-0066-0165.
    \204\ FMC-2022-0066-0217.
    \205\ FMC-2022-0066-0247.
    \206\ FMC-2022-0066-0267.
    \207\ FMC-2022-0066-0235.
    \208\ FMC-2022-0066-0236.
---------------------------------------------------------------------------

    FMC response: The Commission declines to add time for a billing 
party to correct its invoice. While billing parties have an obligation 
under 46 U.S.C. 41104(d)(2) to issue accurate invoices, issuing an 
invoice that does not comply with OSRA 2022's requirements does not 
permanently eliminate the billed party's obligation to pay those 
charges. In particular, 46 U.S.C. 41104(f) cancels the obligation to 
pay an invoice that does not conform to OSRA but does not prevent the 
carrier from reissuing the charges on an invoice/bill that does meet 
the statutory requirements. The correctly billed party has an 
obligation to pay charges billed via a compliant invoice. In addition, 
given the statutory obligation in 46 U.S.C. 41104(d)(2), the Commission 
also declines to add a requirement that billed parties inform billing 
parties of any inaccuracies.
5. Sec.  541.7, General Comments
    FedEx Trade Networks stated that the Commission should make clear 
that when a demurrage or detention charge is in dispute, the billing 
party should be prohibited from issuing further overdue 
statements.\209\ In addition, FedEx Trade Networks recommended that the 
Commission explicitly state conditions under which the billing party 
may not charge demurrage and detention, such as when: the container has 
not arrived at the port; the container is not available within the 
terminal; the container cannot be released due to a hold by any 
government action; the container is in the terminal, but the ocean 
carrier fails to load it on the ocean vessel; the container is in a 
closed, blocked or inaccessible area; no appointments to pick-up 
freight are available; there is a ``dual transaction,'' in which a 
container cannot be picked up unless another piece of equipment is 
returned is required; and the equipment must be returned to a different 
location to be accepted.
---------------------------------------------------------------------------

    \209\ FMC-2022-0066-0165.
---------------------------------------------------------------------------

    FedEx Trade Networks also recommended that when demurrage and 
detention fees do have to be paid, the Commission should implement 
certain requirements to create greater efficiencies and serve the 
objective of demurrage and detention: demurrage bills should be 
separated from freight pick-up for credit-worthy customers; demurrage 
should be a standard amount per port and per day, with no tiered fees; 
more payment options, such as electronic funds transfers, credit cards 
(without fees), should be available, and credit should be universally 
accepted; charges should be fair and reasonable, with the goal of 
moving freight from the terminal; the amortized value of the equipment 
should be considered when setting detention rates; and the bill should 
be readily available, especially online.
    FMC response: The Commission declines to make these changes to the 
final rule. The information required to be included in an invoice as 
per Sec.  541.6 should discourage billing parties from issuing 
demurrage and detention invoices when charges have not yet accrued, 
such as when a vessel has not yet arrived in port, because an 
improperly issued invoice means that the billed party will not have to 
pay it under the terms of Sec.  541.5. In addition, the rule contains a 
dispute resolution process that is designed to motivate the parties to 
a find a resolution within a short timeframe. This process should allow 
cargo to be released sooner, as well as discourage parties from 
repeated behaviors such as continuously issuing overdue invoices.
    Furthermore, this rule provides the requirements for detention and 
demurrage invoices and is already designed to make the process more 
efficient. FedEx Trade Networks' suggestions are outside the process 
for demurrage and detention billing requirements. As such, they are 
outside the scope of this rulemaking.

H. Sec.  541.8 Requests for Fee Mitigation, Refund, or Waiver

1. Sec.  541.8(a), Request for Mitigation, Refund, or Waiver of Fees 
From the Billing Party
    Issue: The Commission proposed giving billed parties 30 days to 
dispute demurrage and detention charges. Forty-five comments were 
submitted on this issue. Twenty-eight comments supported or supported 
with qualification the proposal (1 VOCC,\210\ 5 NVOCCs/OTIs/3PLs,\211\ 
8 BCOs,\212\ 13 Motor Carriers,\213\ and 1 Federal agency \214\). One 
commenter that

[[Page 14350]]

supported the proposal said that the 30-day time limit ``will 
incentivize billing parties to ensure the accuracy of their invoices 
from the start.'' \215\ Fourteen comments were in clear opposition (11 
BCOs \216\ and 3 NVOCCs/3PLs \217\). Three additional commenters 
submitted comments on the matter that did not fall neatly into either 
support or opposition.\218\
---------------------------------------------------------------------------

    \210\ American Association of Exporters and Importers (FMC-2022-
0066-0168).
    \211\ International Tank Container Organisation (FMC-2022-0066-
0096); Excargo Services Inc. (FMC-2022-0066-0151); Seafrigo USA Inc. 
(FMC-2022-0066-0223); APL Logistics Americas, Ltd (FMC-2022-0066-
0271); New York New Jersey Foreign Freight Forwarders and Brokers 
Association, Inc. (FMC-2022-0066-0247).
    \212\ Northwest Horticultural Council (FMC-2022-0066-0178); 
American Chemistry Council (FMC-2022-0066-0184); International 
Housewares Association (FMC-2022-0066-0187); MICA/NAMI (FMC-2022-
0066-0188); Tyson Foods, Inc. (FMC-2022-0066-0225); National 
Association of Beverage Importers, Inc. FMC-2022-0066-0238); 
International Dairy Foods Association (FMC-2022-0066-0244); 
Agriculture Transportation Coalition (FMC-2022-0066-0275).
    \213\ BW Mitchum Trucking Co. (FMC-2022-0066-0110); GBA 
Transport (FMC-2022-0066-0152); Triple G Express (FMC-2022-0066-
0154); MacMillan-Piper, Inc. (FMC-2022-0066-0159); Bridgeside Inc. 
(FMC-2022-0066-0179); Intermodal Motor Carriers Conference (FMC-
2022-0066-0189); Eagle Systems, Inc. (FMC-2022-0066-0203); Bi-State 
Motor Carriers (FMC-2022-0066-0212); California Trucking Association 
(FMC-2022-0066-0220); Maryland Motor Truck Association, Inc. (FMC-
2022-0066-0241); Virginia Trucking Association (FMC-2022-0066-0260); 
Harbor Trucking Association (FMC-2022-0066-0261); California 
Trucking Association (FMC-2022-0066-0270).
    \214\ U.S. Department of Agriculture (FMC-2022-0066-0274).
    \215\ Harbor Trucking Association (FMC-2022-0066-0261).
    \216\ Shippers Coalition (FMC-2022-0066-0160); National 
Association of Chemical Distributors (FMC-2022-0066-0208); Consumer 
Brands Association (FMC-2022-0066-0210); Consumer Technology 
Association (FMC-2022-0066-0228); BassTech International LLC (FMC-
2022-0066-0230); National Retail Federation (FMC-2022-0066-0231); 
National Milk Producers Federation/U.S. Diary Export Council (FMC-
2022-0066-0235); Connection Chemical (FMC-2022-0066-0236); Retail 
Industry Leaders Association (FMC-2022-0066-0259); National 
Association of Manufacturers (FMC-2022-0066-0264); National 
Industrial Transportation League (FMC-2022-0066-0277).
    \217\ DHL Global Forwarding (FMC-2022-0066-0219); CVI 
International (FMC-2022-0066-0217); International Association of 
Movers (FMC-2022-0066-0222).
    \218\ Hapag-Lloyd (America) LLC (FMC-2022-0066-0240); World 
Shipping Council (FMC-2022-0066-0242); Maher Terminals LLC (FMC-
2022-0066-0269).
---------------------------------------------------------------------------

    As noted above, some of the commenters that supported the proposal, 
did so with qualification. The Agriculture Transportation Coalition 
said that 30 days is sufficient time for shippers to review invoices 
and submit requests for fee mitigation, refund, or waiver but that the 
clock should start once the shipper receives the invoice or after the 
invoice has been posted on-line in a location accessible to the 
shipper.\219\ American Chemistry Council had similar views to 
Agriculture Transportation Coalition but said that the clock should not 
start until invoices are received by the billed party.\220\ American 
Chemistry Council explained: ``Carriers are increasingly moving to 
online systems where the billed party must search for new invoices. 
Because of resource constraints, small companies may track new invoices 
on a weekly basis, rather than daily.'' \221\ To address this concern, 
American Chemistry Council proposed amending Sec.  541.8 by adding at 
the end ``. . . or within thirty-seven (37) days of the billing party 
making the invoice available online'' to ensure that these companies 
have the full 30-day window to review invoices. The National 
Association of Beverage Importers, Inc. supported the 30-day timeframe 
but said that it should be subject to a one-time additional 30-day 
extension.\222\ Similarly, NYNJFF&BA supported a 30-day timeframe 
generally, but said the timeframe should be allowed to be extended if 
both parties agreed to the extension.\223\ (NYNJFF&BA did not put a 
time limit on how far the deadline could be extended so long as both 
parties were in agreement.) NYNJFF&BA also said that the 30-day clock 
for a VOCC receipt of a dispute must be extended to accommodate the 
request if the dispute was raised within the proper timelines from the 
final party billed.
---------------------------------------------------------------------------

    \219\ FMC-2022-0066-0275.
    \220\ FMC-2022-0066-0184.
    \221\ Id.
    \222\ FMC-2022-0066-0238.
    \223\ FMC-2022-0066-0247.
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    Billed parties, such as shippers and their trade associations, 
generally argued that 30 days is insufficient. They argued that they 
need more time because shippers do not have the administrative 
bandwidth to examine each invoice carefully within 30 days and to 
determine if a dispute should be filed, particularly considering that 
some charges have unique and complex scenarios that need to be 
investigated before they are disputed.\224\ Commenters noted that low 
administrative bandwidth could be caused by a variety of factors, 
including: the billed party being a small business,\225\ because of 
high transactional volume,\226\ or because of the use of third-party 
auditors.\227\ Some commenters pointed out that a billed party's 
primary business is not transportation, as opposed to billing parties, 
so shippers are at a disadvantage relative to carriers in validating 
and disputing invoices. Some expressed concern that a 30-day period for 
submitting invoice disputes could be construed as a legal ``condition 
precedent'' to filing a claim and essentially function to shorten the 
statute of limitations for claims brought before the Commission.\228\ 
The National Retail Federation pointed out that while the Commission 
said in the NPRM that it was basing the 30-day deadline on the UIAA, 
that shippers have never been a party to the UIAA.\229\ As an 
alternative, several of these commenters argued that a 60-day time 
period is more appropriate.\230\ Other billed parties, however, argued 
that 30 days is insufficient without proposing an alternative 
timeframe,\231\ or proposed eliminating the timeframe requirement 
entirely.\232\
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    \224\ E.g., Connection Chemical (FMC-2022-0066-0236); National 
Association of Chemical Distributors (FMC-2022-0066-0208).
    \225\ National Association of Chemical Distributors (FMC-2022-
0066-0208).
    \226\ E.g., Consumer Technology Association (FMC-2022-0066-
0228); Retail Industry Leaders Association (FMC-2022-0066-0259).
    \227\ E.g., National Retail Federation (FMC-2022-0066-0231).
    \228\ National Association of Chemical Distributors (FMC-2022-
0066-0208).
    \229\ Id.
    \230\ Shippers Coalition (FMC-2022-0066-0160); Consumer Brands 
Association (FMC-2022-0066-0210); International Association of 
Movers (FMC-2022-0066-0222); National Milk Producers Federation/U.S. 
Dairy Export Council (FMC-2022-0066-0235); Retail Industry Leaders 
Association (FMC-2022-0066-0259).
    \231\ E.g., Connection Chemical (FMC-2022-0066-0236); National 
Retail Federation (FMC-2022-0066-0231).
    \232\ National Association of Chemical Distributors (FMC-2022-
0066-0208); BassTech International LLC (FMC-2022-0066-0230); 
National Industrial Transportation League (FMC-2022-0066-0277).
---------------------------------------------------------------------------

    VOCCs and their trade associations asserted the proposal is unfair. 
Hapag-Lloyd (America) LLC argued that the proposal provides no 
consequences for failure to timely submit a dispute to an invoice, so 
it is unclear what incentive billed parties have to respond 
quickly.\233\ The World Shipping Council said that billed parties face 
no consequences for failing to meet the deadline to dispute an invoice, 
while billing parties forfeit contractual rights by missing the 
deadline.\234\ WSC argued that fundamental fairness, equal protection, 
and due process dictate the Commission must add language to impose 
similar requirements on billed parties, namely that they forfeit the 
right to request fee mitigation, refund, or waiver by failing to submit 
that request within 30-days from receiving the invoice. The Ocean 
Carrier Equipment Management Association, Inc. focused on the fact that 
the rule includes no flexibility for delays outside the billing 
parties' control, for instance caused by third parties, that prevent 
compliance with the 30-day deadline to issue invoices.\235\ Finally, 
OCEMA argued that the 30-day deadline could turn out to create a 
disincentive principle since shippers or truckers in possession of 
equipment will no longer feel compelled to return it quickly as the 
unavailability of data or other tools to delay billing will prevent 
billing parties from meeting the 30-day deadline.
---------------------------------------------------------------------------

    \233\ FMC-2022-0066-0240.
    \234\ FMC-2022-0066-0242.
    \235\ FMC-2022-0066-0257.
---------------------------------------------------------------------------

    Commenters also expressed concern about the Commission setting 
strict deadlines for billing parties that could result in forfeiting 
contractual rights, with billed parties potentially facing no 
consequences for failing to meet the rule's deadlines. For instance, 
WSC, OCEMA, and Hapag-Lloyd all argued that it is unfair that billed 
parties face no consequences for failing to timely submit a dispute to 
an invoice. The Pacific Merchant Shipping Association (PMSA) agreed 
with WSC that the lack of consequences for billed parties is

[[Page 14351]]

unfairly incongruous and inconsistent.\236\ PMSA argued that if the 
consequences of failing to meet the prescribed deadlines are not 
removed for billing parties, then the rule should require billed 
parties to pay the charge if they have not disputed it within the 30-
day deadline.\237\
---------------------------------------------------------------------------

    \236\ FMC-2022-0066-0233.
    \237\ Id.
---------------------------------------------------------------------------

    FMC response: The Commission must balance the benefits to billed 
parties against the detriment to billing parties of an extended 
timeline to dispute invoices. The longer billed parties take to 
investigate charges, validate them, and marshal evidence, the longer 
billing parties remain in limbo about whether the billed party intends 
to pay. Billed parties advocated for an extended timeframe but did not 
provide compelling evidence of how long each part of the dispute 
process takes, for instance investigating invoices or validating 
charges. Nor did they explain how an extended timeframe for billed 
parties to evaluate invoices helps facilitate the movement of cargo. 
The rule's new deadlines ensure billed parties are not scrambling to 
unearth ancient evidence to dispute stale invoices, and the Commission 
is not convinced by the evidence billed parties presented in support of 
extending the timeframe.
    Further, the regulatory timeframe for disputes serves only as a 
minimum timeframe billed parties must permit dispute. The timeframes 
are not designed or intended to control in every dispute scenario. They 
are intended to ensure billing parties provide some minimum time for a 
billed party to dispute an invoice. The billing and billed parties can 
agree to extend the timeframe, or the billed party can file a complaint 
with the Commission at any time. Nothing in the final rule prevents a 
billed party from filing a complaint during the 30-day dispute deadline 
or prevents a billed party from filing a complaint with the Commission 
even though they did not dispute the charge with the billing party 
during the 30-day timeframe.
    Based on this record, the Commission has removed the language from 
Sec.  541.8(b) stating that a billed party was not required to pay an 
invoice if a billing party takes longer than 30 days to resolve a 
dispute. The Commission also added language to Sec.  541.8(b) to allow 
the parties to agree to longer timeframes for the dispute resolution 
process. These changes better allow for the balancing of benefits that 
this process requires.
2. Sec.  541.8(b), Resolution of Dispute
(a) 30-Day Timeframe
    Issue: The Commission proposed giving parties 30 days to resolve a 
disputed demurrage or detention invoice charge. Thirty-nine comments 
were submitted on this issue. Thirty comments supported or supported 
with qualification the proposal (8 BCOs,\238\ 5 NVOCCs/OTIs/Customs 
Brokers/3PLs,\239\ 13 Motor Carriers,\240\ 3 VOCCs/MTOs,\241\ and 1 
Federal agency \242\). Six comments were opposed (all BCOs).\243\ The 
other three comments (all NVOCCs/OTIs/Customs Brokers/3PL) that were 
submitted neither clearly supported nor opposed the proposal.\244\
---------------------------------------------------------------------------

    \238\ Northwest Horticultural Council (FMC-2022-0066-0178); 
American Chemistry Council (FMC-2022-0066-0184); International 
Housewares Association (FMC-2022-0066-0187); MICA/NAMI (FMC-2022-
0066-0188); Tyson Foods, Inc. (FMC-2022-0066-0225); National 
Association of Beverage Importers, Inc. (FMC-2022-0066-0238); 
International Dairy Foods Association (FMC-2022-0066-0244); 
Agriculture Transportation Coalition (FMC-2022-0066-0275).
    \239\ International Tank Container Organisation (FMC-2022-0066-
0096); Excargo Services Inc. (FMC-2022-0066-0151); Seafrigo USA Inc. 
(FMC-2022-0066-0223); New York New Jersey Foreign Freight Forwarders 
and Brokers Association, Inc. (FMC-2022-0066-0247); APL Logistics, 
Ltd (FMC-2022-0066-0271).
    \240\ BW Mitchum Trucking Co. (FMC-2022-0066-0110); GBA 
Transport (FMC-2022-0066-0152); Triple G Express (FMC-2022-0066-
0154); MacMillan-Piper, Inc. (FMC-2022-0066-0159); Bridgeside 
Inc.(FMC-2022-0066-0179); Intermodal Motor Carriers Conference (FMC-
2022-0066-0189); Eagle Systems, Inc. (FMC-2022-0066-0203); Bi-State 
Motor Carriers (FMC-2022-0066-0212); California Trucking Association 
(FMC-2022-0066-0220); Maryland Motor Truck Association, Inc. (FMC-
2022-0066-0241); Virginia Trucking Association (FMC-2022-0066-0260); 
Harbor Trucking Association (FMC-2022-0066-0261); California 
Trucking Association (FMC-2022-0066-0270).
    \241\ American Association of Exporters and Importers (FMC-2022-
0066-0168); World Shipping Council (FMC-2022-0066-0242); Maher 
Terminals LLC (FMC-2022-0066-0269).
    \242\ U.S. Department of Agriculture (FMC-2022-0066-0274).
    \243\ Consumer Technology Association (FMC-2022-0066-0228); 
National Retail Federation (FMC-2022-0066-0231); National Milk 
Producers Federation/U.S. Diary Export Council (FMC-2022-0066-0235); 
Retail Industry Leaders Association (FMC-2022-0066-0259); National 
Association of Manufacturers (FMC-2022-0066-0264); National 
Industrial Transportation League (FMC-2022-0066-0277).
    \244\ CVI International (FMC-2022-0066-0217); DHL Global 
Forwarding (FMC-2022-0066-0219); International Association of Movers 
(FMC-2022-0066-0222).
---------------------------------------------------------------------------

    Consumer Technology Association was concerned that the process 
would be subject to abuse and potentially undermine incentives of 
demurrage and detention charges.\245\ The commenter was particularly 
concerned with the possibility of parties overwhelming a carrier with 
requests for waivers/refunds with the express intent of making it 
impossible for the carrier to act within 30 days. They said the 
Commission should make clear that:
---------------------------------------------------------------------------

    \245\ Consumer Technology Association (FMC-2022-0066-0228).

    (1) carriers may adopt reasonable documentation requirements for 
claims for waivers/refunds, and that carriers do not waive their 
right to collect charges when they do not act on claims that fail to 
comply with reasonable documentation requirements;
    (2) claims that are not submitted to carriers via the informal 
dispute process are presumed reasonable and the burden of proof as 
to the unreasonableness of such charges shifts back to the entity 
challenging the charge;
    (3) Abuse of the informal dispute resolution process (e.g., by 
submitting excessive or frivolous claims) may constitute a violation 
of 46 U.S.C. 41102(a). (Alternatively, that abuse of the system 
creates a presumption that the charge was reasonable that must be 
overcome by the party challenging same);
    (4) At an absolute minimum, indicate that: billed parties have 
an obligation to act in good faith when disputing invoices, that 
submission of excessive and/or frivolous disputes does not 
constitute good faith, and that charges that are the subject of 
waiver/refund requests not submitted in good faith are to be 
presumed reasonable.

    Other commenters who opposed the proposed regulation, generally 
said that they disagreed with it because it did not account for those 
instances when more than 30 days is required to investigate and reach a 
final resolution.\246\ Some commenters who generally supported the 
regulation agreed with these concerns. (The dividing line between 
support and opposition generally came down to those that supported some 
type of alternative timeframe to the strict 30 days in the NPRM and 
those that would eliminate a specified timeframe entirely.) For 
example, the World Shipping Council generally supported the proposal 
but recommended that the 30-day period be subject to a single extension 
request of a second 30-day period.\247\ Maher Terminals supported 
having a specific timeframe but said that instead of 30 days, the 
timeframe should be extended to 90-120 days.\248\
---------------------------------------------------------------------------

    \246\ E.g., National Retail Federation (FMC-2022-0066-0231); 
Retail Industry Leaders Association (FMC-2022-0066-0259).
    \247\ FMC-2022-0066-0242.
    \248\ FMC-2022-0066-0269.
---------------------------------------------------------------------------

    FMC response: The Commission has decided to maintain a 30-day 
dispute resolution timeframe, but in response to these comments has 
created an exception to allow for resolution beyond 30 days when a 
later date has been agreed to by both parties. The Commission has also 
clarified in the text that the 30-day deadline is 30

[[Page 14352]]

calendar days. The rule does not prescribe or prohibit the billing 
party from imposing reasonable consequences on the billed party for 
failing to dispute the charge during the 30-calendar-day period.
(b) What does ``resolve'' mean?
    Issue: The Commission received several comments concerning what 
``resolve'' means in the proposed regulation.\249\ These commenters 
said it was unclear from the text of the proposed regulation whether a 
refund, if one were to be issued, or other final form of redress, 
needed to be completed within the 30-day deadline, or whether the 
parties merely needed to come to an agreement for resolution of the 
matter and final tender could be after the 30 day deadline. Two 
commenters, Mediterranean Shipping Company \250\ and the World Shipping 
Council,\251\ requested that the Commission formally define the term in 
the rule. American Chemistry Council had similar concerns, but instead 
of requesting that ``resolution'' be defined, they requested that the 
Commission codify into the regulation that final redress be completed 
within the 30-day limit.\252\ Shippers Coalition expressed their 
concern that the proposed language would result in billing parties just 
saying ``no'' to a request for mitigation/refund/waiver, in order meet 
the 30-day deadline.\253\ To address this concern, Shippers Coalition 
proposed amending Sec.  541.8(b) to include an additional sentence such 
as: ``In considering a request for mitigation, refund, or waiver of 
fees, a common carrier shall consider that under 46 U.S.C. 41310(b) a 
common carrier shall bear the burden of establishing the reasonableness 
of any demurrage or detention charges.'' \254\
---------------------------------------------------------------------------

    \249\ E.g., International Tank Container Organisation (FMC-2022-
0066-0096); Dole Ocean Cargo Express, LLC (FMC-2022-0066-0201); 
Mediterranean Shipping Company (FMC-2022-0066-0142); World Shipping 
Council (FMC-2022-0066-0242); American Chemistry Council (FMC-2022-
0066-0184); Shippers Coalition (FMC-2022-0066-0160); New York New 
Jersey Foreign Freight Forwarders and Brokers Association, Inc. 
(FMC-2022-0066-0247).
    \250\ FMC-2022-0066-0142.
    \251\ FMC-2022-0066-0242.
    \252\ FMC-2022-0066-0184.
    \253\ FMC-2022-0066-0160.
    \254\ Id.
---------------------------------------------------------------------------

    FMC response: The Commission has amended Sec.  541.8(b) to: (1) 
require attempted resolution, rather than resolution, within 30 days; 
and (2) allow extension of the timeframe, if such a later date is 
agreed to by the parties. The Commission recognizes that this change 
will mean that the rule will no longer impose definite outer limits for 
closing out of a disputed transaction. These changes, however, further 
the goal of building better relationships in the demurrage and 
detention context between the billing and billed parties, the parties 
that know the most about the transaction. While parties can come to the 
Commission at any time during the process, the Commission wants to 
encourage to the fullest extent possible good-faith efforts for 
resolution between the parties when disagreements occur.
    We decline to formally define ``resolution'' or ``attempted 
resolution'' because what these terms mean in any particular instance 
will be determined based upon mutual agreement of the involved parties. 
The Commission believes it is acceptable for some ambiguity, especially 
given that the Commission has removed the penalty of the billed party 
not having to pay the invoice if the parties do not come to a 
resolution. Applying the normal meaning of the word, resolution of a 
request includes payment by the billing party of any refund due to the 
billed party.
    As noted above, Sec.  541.8 does not impact a party's right to file 
a Charge Complaint with the Commission. Parties do not need to wait a 
certain period of time or for a triggering event to occur prior to 
filing a complaint under Sec.  541.8. Parties interested in filing a 
Charge Complaints at the Commission may do so by following the Interim 
Procedures for Submitting ``Charge Complaints.'' \255\
---------------------------------------------------------------------------

    \255\ Industry Advisory--Interim Procedures for Submitting 
``Charge Complaints'' Under 46 U.S.C. 41310--Federal Maritime 
Commission--Federal Maritime Commission (fmc.gov) (posted July 14, 
2022) (https://www.fmc.gov/industry-advisory-interim-procedures-for-submitting-charge-complaints/).
---------------------------------------------------------------------------

(c) Penalty
    Pacific Merchant Shipping Association (PMSA) argued that voiding an 
invoice is a harsh result.\256\ PMSA disagreed with the Commission's 
conclusion that voiding a charge in its entirety is the only potential 
remedy of consequence that the Commission could establish, or that this 
penalty is consistent the Commission's current practices or the 
Congressional mandates in OSRA 2022. PMSA stated that such a conclusion 
flies in the face of the Commission's charge compliant process and 
argued that even if this penalty were intended to be punitive, it 
exceeds the congressional direction and authority granted to the 
Commission in OSRA 2022. PMSA noted that OSRA 2022, at section 7(b), 
directs the Commission to conduct the present rulemaking in order to 
``further clarify reasonable rules and practices'' regarding demurrage 
and detention, and to determine ``which parties may be appropriately 
billed for any demurrage, detention, or other similar per container 
charges.'' PMSA argued that Congress did not authorize the Commission 
to adopt new penalties whereby demurrage and detention charges would be 
eliminated as a punishment for violating a prohibited practice, and 
that the rule contravenes Congress' wishes in this regard.
---------------------------------------------------------------------------

    \256\ FMC-2022-0066-0233.
---------------------------------------------------------------------------

    Furthermore, PMSA argued that because the Charge Complaint process 
is available to any billed party, Sec.  541.8(b) could have been set up 
in any number of more reasonable and less punitive ways to address a 
non-responsive billing party and still be within the scope of 
clarifying the process, such as introducing a rebuttable presumption 
against a non-responsive billing party or foreclosing certain defenses 
against a non-responsive billing party in the Complaint process.
    FMC response: In consideration of these concerns, the Commission 
has removed the provision from Sec.  541.8(b) that allows the billed 
party to avoid paying the invoice if the dispute is not resolved within 
30 days. Although that provision had been added to speed up and 
incentivize the dispute resolution process, this was not a requirement 
that was mandated by OSRA 2022. By contrast, the rule keeps the 
requirement of 46 U.S.C. 41104(d)(1) and codified in 46 CFR 541.5, 
regarding voiding an invoice that does not include the necessary 
information, because this requirement was mandated by OSRA 2022.
(d) Release of Cargo During Dispute
    Issue: The Commission received a few comments concerning the 
ability to hold cargo as a lien against demurrage and detention 
invoices when an invoice is disputed. Commenters were concerned not 
only about the cargo that is the subject of a dispute but also about 
the potential for lockouts of non-related cargo.
    Mediterranean Shipping Company argued that cargo that is the 
subject of a disputed demurrage or detention invoice should be 
permitted to be maintained by the billing party pending payment.\257\ 
FedEx Trade Networks argued, in contrast, that when a demurrage or 
detention charge is in dispute, the billing party should be required to 
release the cargo that is the subject of a disputed charge.\258\
---------------------------------------------------------------------------

    \257\ FMC-2022-0066-0143.
    \258\ FMC-2022-0066-0165.

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[[Page 14353]]

    A third alternative was proposed by Consumer Technology 
Association.\259\ CTA argued that during a dispute resolution period, 
the billing party should be required to release the billed party's 
property so long as the billed party pays the undisputed portion of an 
invoice.
---------------------------------------------------------------------------

    \259\ FMC-2022-0066-0228.
---------------------------------------------------------------------------

    The joint comment of the Meat Import Council of America and North 
America Meat Institute said that it is a common practice by VOCCs to 
hold additional, unrelated cargo from being released until all 
outstanding invoices are paid, even when the receiving party may be 
contesting the validity of those original invoices.\260\
---------------------------------------------------------------------------

    \260\ FMC-2022-0066-0188.
---------------------------------------------------------------------------

    MICA/NAMI said that when invoiced charges are contested by the 
receiving party, it is unacceptable for VOCCs to ``lock out'' that 
entity from all future business with the VOCC until those outstanding 
fees are paid. MICA/NAMI argued that the current practice does not 
comport with the tenets of the Incentive Principle, and that allowing 
it to continue would dissuade importers and exporters, as well as third 
party service providers, from availing themselves of any dispute 
settlement mechanisms that are available given the need to service 
other, unrelated loads with the VOCC.
    The Retail Industry Leaders Association echoed similar concerns of 
MICA/NAMI, stating that a common complaint among its members is the 
practice of ocean common carriers and MTOs refusing to provide 
additional bookings to a BCO unless the BCO or another entity in the 
supply chain pays outstanding detention and demurrage charges that are 
under dispute.\261\ According to RILA, this practice is often used as a 
way of forcing a BCO to abandon a dispute with the carrier or MTO and 
pay the charges due. The Association noted that this practice could 
take several forms, including a demand for payment upon receipt of an 
invoice. The Association expressed its concern that this practice could 
be used to circumvent the text and purpose of the rule and recommended 
that the Commission thus prohibit it.
---------------------------------------------------------------------------

    \261\ FMC-2022-0066-0259.
---------------------------------------------------------------------------

    FMC response: This rule does not impact traditional cargo lien 
rights. This rule allows billing parties to make their own business 
decisions about whether or not they require demurrage and detention 
charges to be paid prior to releasing cargo or whether or not to 
release cargo conditionally or unconditionally.
    The Commission does not believe that leaving the issue of not 
allowing additional bookings unaddressed will result in circumvention 
of the rule. The main purpose of this rule is to provide clarity and 
transparency of invoices and the billing process. This rule also 
eliminates the practice of issuing invoices to multiple parties in the 
hopes that one of them will pay it, which was one of the concerns 
raised by RILA.

I. Rail

1. Through Bill of Lading
    Issue: One NVOCC/OTI requested that the Commission explicitly state 
in Sec.  541.2 whether the rule applies demurrage and detention billing 
originating from the rail for the rail leg of a through bill of 
lading.\262\
---------------------------------------------------------------------------

    \262\ FedEx Trade Networks Transport & Brokerage, Inc. (FMC-
2022-0066-0165).
---------------------------------------------------------------------------

    FMC response: Ocean cargo that is shipped under a through bill of 
lading to a final destination in the United States remains under 
Commission jurisdiction for any Shipping Act violations, including 
violations occurring under OSRA 2022, and associated implementing 
regulations.\263\ These cases are discussed in greater detail below.
---------------------------------------------------------------------------

    \263\ See Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14; 
see also Mitsui O.S.K. Lines Ltd. v. Global Link Logistics, Inc., 
Olympus Partners, Olympus Growth Fund III, L.P, Louis J. Mischianti, 
David Cadenas, Keith Heffernan, CJR World Enterprises, Inc. and Chad 
J. Rosenberg (2011 WL 7144008 (F.M.C.) January 30, 2014).
---------------------------------------------------------------------------

2. Storage and Demurrage Fees for Shipments Moving on Through Bill of 
Lading
    Issue: National Customs Brokers & Forwarders Association of 
America, Inc. requested guidance as to whether the proposed definition 
of ``demurrage and detention'' would cover certain storage or demurrage 
fees for shipments moving on through bills of lading.\264\ Two other 
commenters, John S. Connor, Inc.\265\ and CV International,\266\ 
specifically requested that inland rail be included in the definition 
of ``demurrage and detention'' to account for storage at inland rail 
terminals.
---------------------------------------------------------------------------

    \264\ FMC-2022-0066-0180.
    \265\ FMC-2022-0066-0267.
    \266\ FMC-2022-0066-0217.
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    FMC response: The Commission declines to make a specific addition 
to the definition of ``demurrage and detention'' to add inland rail. 
This is an issue that has been raised in the National Shipper Advisory 
Committee (NSAC) and continues to be examined by the Commission.\267\ 
The Commission has direct jurisdiction over common carriers, marine 
terminal operators (MTOs), and ocean transportation intermediaries 
(OTIs).\268\ This includes jurisdiction over ``through 
transportation,'' meaning continuous transportation between the origin 
and destination and is offered or performed by one or more carriers, at 
least one of which is a common carrier under the Shipping Act. As such, 
ocean cargo that is shipped under a through bill of lading to a final 
destination in the United States remains under Commission jurisdiction 
for any Shipping Act violations. The Commission has long held that its 
jurisdiction extends to ocean cargo that is shipped under a through 
bill of lading to a final destination in the United States. The Supreme 
Court addressed this issue in Norfolk Southern Railway Co. v. Kirby, 
543 U.S. 14 (2004), which held that inland transportation pursuant to a 
through bill of lading does not change the fact that the bill of lading 
is a maritime contract. This case addressed the delivery of machinery 
from Australia to Huntsville, Alabama, on a through bill of lading. The 
machinery arrived in Savannah, Georgia, by way of an ocean vessel, 
where it was discharged and loaded onto a train whose ultimate 
destination was the inland port of Huntsville. The train derailed en 
route to Huntsville, causing damage to the machinery.\269\ The Supreme 
Court decided Norfolk Southern Railway Co. under admiralty law even 
though the machinery's damage arose from the train crash because the 
inland rail portion was pursuant to through bills of lading, which the 
court noted were ``essentially, contracts'' for the transportation of 
the goods. These bills of lading were ``maritime contracts because 
their primary objective is to accomplish the transportation of goods by 
sea from Australia to the eastern coast of the United States.'' \270\
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    \267\ https://www.fmc.gov/industry-oversight/national-shipper-advisory-committee/.
    \268\ See 46 U.S.C. 40901-40904, 41104, 41106.
    \269\ 543 U.S. at 18-19.
    \270\ Id. at 24 (internal citations omitted).
---------------------------------------------------------------------------

    This principle has become settled in Commission case law decided 
under the Shipping Act. For example, in Mitsui O.S.K. Lines Ltd. v. 
Global Link Logistics, Inc., Olympus Partners, Olympus Growth Fund III, 
L.P, Louis J. Mischianti, David Cadenas, Keith Heffernan, CJR World 
Enterprises, Inc. and Chad J. Rosenberg, the Commission stated that the 
Shipping Act of 1984's legislative history specifically recognized 
intermodalism ``as an important component of ocean transportation, and 
the implications of intermodalism for ocean transportation

[[Page 14354]]

were addressed.'' \271\ In particular, the legislative history 
``recognized that an ocean carrier's use of a single intermodal tariff 
could save shippers time and allow them to avoid having to arrange the 
transfer of cargo from one transportation mode to another.'' The 
legislative history further stated that ``when an ocean carrier offers 
an intermodal service, that carrier has the single responsibility for 
assuring the delivery of cargo from point to point, and only that 
carrier needs to be concerned with the arrangements for transferring 
the cargo between modes. Furthermore, this process involves a single 
bill-of-lading rather than multiple bills of lading.'' \272\
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    \271\ 2011 WL 7144008 (F.M.C.) January 30, 2014.
    \272\ Id. at 6, citing H.R. REP. NO. 98-53, pt. 1, at 13 (1983).
---------------------------------------------------------------------------

    In Mitsui, the Commission also stated that ``the intermodal nature 
of ocean transportation was reflected in the [Shipping] Act's inclusion 
of definitions of `through rate' and `through transportation,' '' which 
were ``in recognition of the need to permit the employment of modern 
intermodalism concepts and practices in our foreign trade.'' \273\ As 
such, the Commission concluded that ``given this legislative history, 
it appears that Congress intended to extend the Commission's 
jurisdiction to encompass through rates and through transportation. 
Congress specifically noted the use by ocean carriers of single 
intermodal bills of lading, such as those involved in this case, to 
cover shipments going to inland destinations or points.'' \274\
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    \273\ Id. at 6, citing H.R. REP. NO. 98-53, pt. 1, at 29.
    \274\ Id. at 6.
---------------------------------------------------------------------------

    Given this discussion, it remains the Commission's position that it 
has jurisdiction over ocean cargo that is shipped under a through bill 
of lading to a final destination in the United States. This rulemaking 
does not change the Commission's authority over merchandise carried 
pursuant to a through bill of lading.
3. Amending the Definition of ``Demurrage and Detention''
    Issue: One commenter requested that the Commission add ``storage'' 
to the definition of ``demurrage and detention,'' as well as including 
rail/inland depot space in the definition.\275\ There, the commenter 
reasoned that on through bills of lading, the VOCC is responsible for 
transporting cargo inland via rail, and that the same demurrage and 
detention billing regulations should apply to rail storage/demurrage.
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    \275\ CV International, Inc. (FMC-2022-0066-0217).
---------------------------------------------------------------------------

    FMC response: The Commission declines to add storage to the 
definition of ``demurrage and detention.'' The terms ``detention and 
demurrage'' are used extensively in the shipping industry, and they are 
not generally defined within the industry to include ``storage.'' 
Expanding the definition to include ``storage'' is beyond the scope of 
this rulemaking.

J. Paperwork Reduction Act

    Issue: One commenter asserted that the Commission violated the 
Paperwork Reduction Act of 1995 (PRA) because ``it does not appear that 
any effort was made to realistically assess the time or cost burdens 
imposed by the rule[.]'' \276\
---------------------------------------------------------------------------

    \276\ Ocean Carrier Equipment Management Association, Inc. (FMC-
2022-0066-0257).
---------------------------------------------------------------------------

    FMC response: The Commission complied with PRA requirements. In 
accordance with 5 CFR 1320.11, in the NPRM, the Commission discussed 
costs associated with the information collection outlined in the 
proposed rule, and the bases for those costs.\277\ The Commission 
requested comments on the information collection generally, and 
specifically requested comments on the accuracy of the burden estimate. 
Neither the commenter \278\ nor anyone else submitted a comment on the 
proposed information collection. While some commenters on the NPRM, 
particularly MTOs, generally asserted concerns about potential burdens 
that the rule would impose on them, neither this particular commenter 
nor any other commenter provided data or information to the Commission 
that directly challenged the FMC's burden calculation or provided 
additional information to improve the calculation estimate.\279\
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    \277\ 87 FR 62341, 62356.
    \278\ Ocean Carrier Equipment Management Association, Inc. (FMC-
2022-0066-0257).
    \279\ Regulations.gov, Docket FMC-2022-0066 and https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202210-3072-001# (last 
visited June 12, 2023).
---------------------------------------------------------------------------

K. Miscellaneous Comments

1. Requests for Additional Regulations
    Issue: While many commenters expressed support for this rulemaking, 
a number of them mentioned items they thought required further action 
by the Commission. In particular, the Cheese Importers Association of 
America (CIAA) noted that even with the regulation's change to billing 
practices, there are operational practices that are still harming food 
importers.\280\ This included charging detention and demurrage even 
when parties cannot access their shipping containers, when the ship did 
not go to the proper port, and when the carrier failed to properly 
notify that the container was available for pick up. CIAA requested 
that the Commission develop a reasonable standard regarding delivery 
practices. Similarly, the Northwest Horticultural Council (NHC) stated 
that the Commission should take further action to clarify reasonable 
detention and demurrage practices and make sure shippers are not 
unreasonably charged in situations where delays are beyond their 
control, an issue that was echoed in a comment by an anonymous 
exporter.\281\ This exporter also noted that a number of issues 
regarding earliest return dates could be ripe for Commission 
regulation.
---------------------------------------------------------------------------

    \280\ FMC-2022-0066-0265.
    \281\ FMC-2022-0066-0178.
---------------------------------------------------------------------------

    Pacifica Trucks LLC stated that in addition to the invoicing rules 
that this regulation encompasses, the Commission should address ocean 
carriers' application of demurrage and detention fees in other 
situations that Pacifica Trucks considers unfair.\282\ In particular, 
Pacifica Trucks opined that the Commission should ban ocean carriers 
from assessing demurrage and detention fees in the following 
situations: when the carrier's intermodal marine or terminal truck gate 
is closed; when the carrier's intermodal marine or terminal does not 
offer unrestricted appointments to pick up cargo; when the motor 
carrier documents an unsuccessful attempt to make an appointment for 
either a loaded or empty container and no other unrestricted 
appointments were available; when the intermodal marine container 
terminal diverts equipment from the original interchange location 
without 48 hours' notice to the motor carrier; when a loaded container 
is not available for pickup when the motor carrier arrives at the 
intermodal marine terminal, or the area containing the cargo is closed 
or inaccessible; when the intermodal marine terminal is too congested 
to accept the container and turns the motor carrier away; when the 
carrier's intermodal marine terminal unilaterally imposes transaction 
restrictions such as chassis matching or empty container requirements 
that prevent a transaction and fail to provide a return location or 
other conditions that impede the motor carrier's ability to pick up or 
return their containers.
---------------------------------------------------------------------------

    \282\ FMC-2022-0066-0118.
---------------------------------------------------------------------------

    In addition, the Harbor Trucking Association requested Commission 
action on the return of empty containers, as well as standardizing

[[Page 14355]]

payment practices such as payment centers having differing hours of 
operation, delays in payment processing and the need for consistency as 
to how free days are applied.\283\ Other commenters raised similar 
issues.
---------------------------------------------------------------------------

    \283\ FMC-2022-0066-0261.
---------------------------------------------------------------------------

    FMC response: The Commission agrees that these are important issues 
but concludes that they are outside the scope of this rulemaking. The 
Commission thanks commenters for their thoughtful input on these 
issues.
2. APA Challenge
    Issue: Three commenters asserted that the NPRM violates the 
Administrative Procedure Act (APA).\284\
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    \284\ World Shipping Council (FMC-2022-0066-0242); National 
Association of Waterfront Employers (FMC-2022-0066-0276); Port 
Houston (FMC-2022-0066-0268).
---------------------------------------------------------------------------

    The World Shipping Council argued that the proposed rule violates 
the APA ``because the Commission's replacement of the Interpretive Rule 
and the Incentive Principle with a series of bright-line rules 
represents a clear departure from its past precedent on detention and 
demurrage without any reasonable explanation.'' WSC elaborated, saying:

    [T]he Commission's proposed bright-line regulations on which 
parties can be billed cannot logically coexist with its current 
policies under the Interpretive Rule, which employs a case-by-case 
analytical tool and the Incentive Principle to determine if a 
carrier, MTO, or OTI's detention and demurrage billing practices are 
reasonable. The proposed rules and the Interpretive Rule cannot 
coexist because there are numerous instances when it is not only 
reasonable for carriers to take actions prohibited by this proposed 
regulation, but to do otherwise would disincentivize the fluid 
movement of freight through the supply chain. The predictable result 
is a proposal that is not only unworkable and unreasonable as a 
matter of policy, but per se arbitrary and capricious as a matter of 
law.

    The National Association of Waterfront Employers and Port Houston 
said that in contravention of 46 CFR 545.4(b)'s requirement that an 
unjust and unreasonable practice must be something that occurs on a 
``normal, customary, and continuous basis,'' this rule, as proposed 
would penalize MTOs for any isolated, one-off invoice omission, and 
apply the penalty to the entire invoice, including as to charges that 
may not be implicated by the mistake at issue. These commenters said 
that: ``In effect, this regulation would be an implicit repeal of the 
existing regulatory definition of ``unjust and unreasonable practices'' 
under 46 CFR 545.5 as it relates to MTO demurrage charges, without an 
opportunity for public comment on such repeal, as required by the 
APA.''
    FMC response: The Commission disagrees with the commenters' 
characterization of this action and assertion of APA violations. The 
rule's provisions have been extensively explained by the agency, and 
the rule is implemented by the Commission in accordance with the APA's 
rulemaking procedures under 5 U.S.C. 553. As noted above, the 
Commission has twice solicited public input on the proposal to regulate 
MTO invoicing. The Commission stated unequivocally in the NPRM that 
MTOs would be subject to this rule. MTOs have had repeated public 
notice that the Commission was considering regulating MTO demurrage and 
detention invoicing, so the Commission disagrees with concerns that the 
rule lacked adequate public notice and comment.
    As for concerns that this rule implicitly overrules the 
Commission's Interpretive Rule at 46 CFR 545.4, these concerns have 
also been previously addressed. Any argument about what parts of the 
Interpretive Rules at 46 CFR 545.4 and 545.5 remain in force is 
inherently an argument about that guidance and not about whether this 
rule complies with the APA. OSRA 2022 specifically required the 
Commission to issue rules under 46 U.S.C. 41102(c) that further define 
the prohibited practices by common carriers, marine terminal operators, 
and shippers, regarding the assessment of detention or demurrage 
charges. The plain language of this direction and the plain language of 
41104(d) do not require evidence of multiple violations. This view is 
further supported by 46 U.S.C. 41104(f) which functions to void an 
invoice if a single required element is not included, not when the 
complainant can show multiple instances of such behavior.\285\ To the 
extent that this rule requires a change in the narrow context of the 
Commission's guidance on how it will apply 46 U.S.C. 41102(c) to MTO 
demurrage and detention invoicing, this rule merely implements changes 
made by Congress.
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    \285\ See also 46 U.S.C. 41310(b) (Charge complaints authority 
states that Commission is required to investigate compliance with 
section 41102 of ``the charge'' received and does not specify that 
multiple instances must be alleged for the Commission to investigate 
and order a refund and/or civil penalty).
---------------------------------------------------------------------------

    In response to NAWE and Port Houston, the Commission has amended 
Sec.  541.5 to read ``applicable charge'' rather than ``applicable 
invoice.'' This change mirrors the statutory language of 46 U.S.C. 
41104(f). It was not the Commission's intent to imply that a failure to 
include the mandatory invoice requirements related to detention and 
demurrage charges would void non-detention or demurrage charges that 
might appear on the same invoice.
3. Extended Implementation Time Period
    Issue: The Commission received four requests for delayed 
implementation of the final rule. Two MTOs requested an implementation 
date of no less than 120 days from publication of any final rule.\286\ 
The Intermodal Association of North America (IANA) requested no less 
than 90 days, saying that would be the minimum amount of time needed 
they would need to make necessary changes to the UIAA associated with 
implementation of Sec.  541.7(a).\287\ The third MTO requested delayed 
implementation but did not propose a specific timeframe.\288\
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    \286\ West Coast MTO Agreement (FMC-2022-0066-0229); Fenix 
Marine Services, Ltd. (FMC-2022-0066-0186).
    \287\ West Coast MTO Agreement (FMC-2022-0066-0229).
    \288\ CMA CGM (America) LLC (FMC-2022-0066-0183).
---------------------------------------------------------------------------

    FMC response: The agency is delaying the general effective date of 
this rule 90 days from publication in the Federal Register and Sec.  
541.6's implementation is delayed pending approval of the associated 
Collection of Information by the Office of Management and Budget. The 
Commission believes that the additional days of general implementation 
together with any additional waiting period for OMB approval of the 
Information Collection will provide industry with sufficient time to 
implement all changes required by this rule.
4. Requests for Hearing and Additional Public Comment Period
    Issue: The Commission received two requests for a hearing so that 
the Commission could further hear from stakeholders about impacts and 
potential unintended consequences of implementing the rule.\289\
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    \289\ National Retail Federation (FMC-2022-0066-0231); National 
Industrial Transportation League (FMC-2022-0066-0277).
---------------------------------------------------------------------------

    FMC response: After careful consideration, the Commission declines 
to establish another round of public comments or to hold the requested 
hearings. The Commission has already issued an ANPRM and an NPRM on 
this subject. As such, there have been two opportunities for public 
comments on these matters. As demonstrated by the number and quality of 
the comments received, the Commission believes that the ANPRM and the 
NPRM have

[[Page 14356]]

provided the public and interested parties with sufficient opportunity 
to comment on the underlying issues. As such, the Commission believes 
that a hearing or additional opportunity for public comment is 
unnecessary. In addition, the Commission is not making significant 
changes to the final regulations such that a Supplementary Notice of 
Proposed Rulemaking (SNPRM) would be warranted.
5. Costs and Benefits Analysis
    Issue: Three commenters asserted that the Commission did not 
adequately assess costs and benefits of the proposed rule in the NPRM 
and that the Commission violated Executive Order 13579.\290\
---------------------------------------------------------------------------

    \290\ TraPac, LLC (FMC-2022-0066-0136); National Association of 
Waterfront Employers (FMC-2022-0066-0276); Port Houston (FMC-2022-
0066-0268).
---------------------------------------------------------------------------

    FMC response: The Commission provided an estimate of the costs for 
regulated entities to implement the proposed rule to be between $6.3 
and $12.7 million.\291\ As discussed above with regards to comments 
concerning the Paperwork Reduction Act, the Commission did not receive 
information from these, or any other commenters, to support changing 
that estimate. The Commission highlights for the awareness of these 
commenters that, as an independent agency, the Commission is not 
subject to the same cost benefit analysis requirements as non-
independent agencies. Executive Order 13579 was written taking into 
account the unique nature of independent agencies. The Executive Order 
does not require independent agencies to take specific actions, nor 
does it impose mandates on independent agencies to comply with 
Executive Order 12866, Executive Order 13563, or any other Executive 
order.
---------------------------------------------------------------------------

    \291\ 87 FR 62342, 62356 (Oct. 14, 2022).
---------------------------------------------------------------------------

IV. Summary of Final Rule and Changes From the NPRM

Sec.  541.1 Purpose

    There are no changes from the text proposed in the NPRM.

Sec.  541.2 Scope and Applicability

    This final rule makes minor changes to the text proposed in the 
NPRM. In paragraph (a), ``to a billed party or their designated agent'' 
has been removed. ``To a billed party'' has been removed because part 
541 also covers demurrage or detention invoices that are sent to 
persons who are not a ``billed party'' as defined in Sec.  541.3. ``Or 
their designated agent'' has been removed as the text is unnecessary. 
Traditional rules of agency remain applicable under the Shipping 
Act.\292\ In paragraph (b), ``regulation'' has been replaced with 
``part.'' ``Regulation'' was a scrivener's error in the proposed text. 
While ``regulation'' is sometimes used to describe a rule in totality, 
it more frequently is used to describe a single section or subsection 
of the Code of Federal Regulations. ``Part'' is more precise and, most 
importantly, aligns with the Code of Federal Regulation's 
organizational taxonomy.
---------------------------------------------------------------------------

    \292\ E.g., Landstar Exp. Am., Inc. v. Fed. Mar. Comm'n, 569 
F.3d 493, 495 (D.C. Cir. 2009).
---------------------------------------------------------------------------

    Part 541 governs any invoice issued by an ocean common carrier or 
non-vessel-operating common carrier for the collection of demurrage or 
detention charges. Part 541 does not govern the billing relationships 
among and between ocean common carriers and marine terminal operators. 
The Commission has not received information about the relationships or 
interactions between VOCCs and MTOs that warrants regulating the format 
used by MTOs to bill VOCCs. At the present time, the Commission is 
confident that the strong commercial relationships between the parties 
is enough to ensure that the proper information is shared and that the 
party who ultimately receives the invoice is receiving accurate 
information. Part 541 does apply to all other demurrage and detention 
invoices issued by MTOs. MTOs often do not have direct contractual 
relationships with shippers. However, MTOs are entitled to separately 
assess demurrage as an implied contract provided that it is published 
as part of an MTO Schedule and there are some situations where marine 
terminal operators impose fees directly on shippers and NVOCCs. A 
primary concern of the Commission is to ensure billed parties 
understand the demurrage or detention invoices they receive. Therefore, 
in those cases where an MTO charges any party other than a VOCC 
detention or demurrage charges, the Commission finds that MTOs should 
be subject to the same regulations that apply to VOCCs and NVOCCs.

Sec.  541.3 Definitions

    This final rule makes three changes from the text proposed in the 
NPRM. ``Billing dispute'' has been removed and ``consignee'' and 
``person'' have been added as defined terms. ``Billing dispute'' does 
not need to be defined because it is not a term used in Sec. Sec.  
541.4-541.99, in either the NPRM or final rule.
    Billed party. For purposes of part 541, ``billed party'' means the 
person receiving the demurrage or detention invoice and who is 
responsible for payment of any incurred demurrage or detention charge.
    Billing party. For purposes of part 541, ``billing party'' means 
the VOCC, NVOCC, or MTO who issues a demurrage or detention invoice. 
While in most cases, the billing party will be a VOCC, this term is 
defined broadly to incorporate the occasions when an MTO or an NVOCC 
may issue a demurrage or detention invoice.
    Consignee. The definition of ``consignee'' that has been added to 
Sec.  541.3 comports with the definition of ``consignee'' that appears 
in Sec.  520.2.
    Demurrage or detention. ``Demurrage or detention'' includes any 
charge assessed by common carriers and marine terminal operators 
related to the use of marine terminal space or shipping containers. The 
scope of the term in Sec.  541.3 is the same as the scope of 
``demurrage or detention'' in Sec.  545.5(b). It encompasses all 
charges having the purpose or effect of demurrage or detention 
regardless of what those charges may be called by the billing party. 
The definition excludes charges related to equipment other than 
containers, such as chassis, because depending on the context, ``per 
diem'' can refer to containers, chassis, or both.
    Demurrage or detention invoice. For purposes of part 541, 
``demurrage or detention invoice'' means any statement, printed, 
written, or accessible online, that documents an assessment of 
demurrage or detention charges. This broad definition includes all 
currently existing methods of invoicing shipping (e.g., email and 
online portal), as well as those that may be developed in the future.
    Person. The definition of ``person'' that has been added to Sec.  
541.4 aligns with Sec.  515.2(n).

Sec.  541.4 Properly Issued Invoices

    This final rule makes changes to the proposed Sec.  541.4 text to 
allow consignees to be issued demurrage and detention invoices as an 
alternative billed party. The revised regulation makes clear that the 
consignee is an alternative billed party, and the same invoice may be 
not issued to both the shipper and the consignee. Additionally, the 
Commission has made minor, non-substantive changes that aid in clarity.
    If the billed party has firsthand knowledge of the terms of a 
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

[[Page 14357]]

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. Therefore, under this final 
rule, a properly issued invoice is an invoice that is issued to: (1) 
the person that has contracted with the billing party for the ocean 
transportation or storage of cargo, or (2) the consignee (when in 
contractual privity with the carrier).
    In the final rule, the Commission has changed the word ``goods'' to 
``cargo'' in Sec.  541.4(a)(1). ``Cargo'' is a broader term that puts 
the focus on the container, rather than the items inside it. As such, 
this comports with the rule's focus on the container, as demurrage and 
detention charges are levied on the container rather than the items 
inside it.
    ``Contract'' in this rule has its normal and ordinary legal 
meaning.\293\ Because contracts (other than contracts implied by law) 
require a meeting of the minds, merely listing a party on a bill of 
lading, or contract of affreightment, will not be sufficient for them 
to become a billed party for purposes of part 541 if they played no 
role in contracting for the ocean transportation or storage of cargo. 
Whether a meeting of the minds has occurred is something that can vary 
based on the specific circumstances of a given relationship. Because a 
contract can exist even if not memorialized in writing, the Commission 
declines to add a requirement that contracts need to be in writing for 
purposes of this rule. The Commission notes, however, that written 
contracts can provide important documentary evidence of agreement.
---------------------------------------------------------------------------

    \293\ See, e.g., Norfolk Southern Railway Co. v. Kirby, 543 U.S. 
14, 16 (2004) (``[C]ontracts for carriage of goods by sea must be 
construed like any other contracts: by their terms and consistent 
with the intent of the parties''); Contract, Black's Law Dictionary 
(11th ed. 2019).
---------------------------------------------------------------------------

    Consignees may be billed as an alternative to the shipper when the 
consignee is the party contracting for the shipping and is therefore in 
contractual privity with the carrier. Merely listing the consignee on 
the bill of lading is not sufficient to support billing the consignee. 
(Conversely, although rarer, it is possible to properly issue an 
invoice to a consignee that has not been listed on the bill of lading.)
    This rule does not prohibit or otherwise limit an MTO from issuing 
any party--including BCOs or Motor Carriers--an invoice based on a 
Terminal Schedule, including charges for detention or demurrage, if the 
Terminal Schedule includes such charges and the Schedule has been made 
available in accordance with 46 CFR 525.3. As noted by the commenters, 
46 U.S.C. 40501(f) and 46 CFR 525.2(a)(2) establish that such Schedules 
are enforceable as implied contracts. Under such a scenario, a Motor 
Carrier has a contractual relationship with the MTO and the terms of 
the contract (the Schedule) are known to the Motor Carrier in advance 
by operation of 46 CFR 525.3. This is a very different situation than 
where a Motor Carrier is billed for demurrage or detention and the 
Motor Carrier has no contractual relationship with the billing party 
and is not privy to the specifics of the contractual agreement (such as 
where a Motor Carrier is billed demurrage or detention based on an 
agreement between a shipper and a billing party).
    This rule does require that when an MTO issues a bill for demurrage 
or detention for purposes of enforcing a Terminal Schedule, the billing 
must comply with part 541, including providing all the information 
required by Sec.  541.6. The Commission recognizes that this may 
require MTOs to revise their current business practices. As discussed 
in the NPRM, the Commission's primary concern with this rule is to 
ensure that billed parties understand the demurrage or detention 
invoices they receive.\294\ Any additional burden on MTOs to be able to 
provide the necessary data, which the Commission does not believe will 
be unduly burdensome, is outweighed by the benefits of transparency.
---------------------------------------------------------------------------

    \294\ E.g., 87 FR 62341, 62347.
---------------------------------------------------------------------------

    The Commission notes that other MTO billing relationships are also 
subject to part 541. For example, an MTO issuing a demurrage or 
detention invoice in order to collect on behalf of a VOCC or issuing a 
demurrage or detention invoice to an NVOCC must comply with part 541. 
However, MTOs sometimes require BCOs or their agents to pay freight 
charges prior to removal of cargo and those freight charges are 
excluded from the definition of ``demurrage and detention'' in Sec.  
541.3.

Sec.  541.5 Failure To Include Required Information

    Under 46 U.S.C. 41104(f), failure to include any of the required 
minimum information in 46 U.S.C. 41104(d) eliminates the obligation of 
the charged party to pay the applicable charge. Section 541.5 is 
intended to mirror this requirement. To clarify that intent, the 
Commission has changed the paragraph from ``applicable invoice'' in the 
NPRM to ``applicable charge'' in this final rule. It was not the 
agency's intent to imply that non-demurrage or detention charges could 
be voided by failure to include the information in Sec.  541.6.
    Similarly, pursuant to 46 U.S.C. 41102(c), it is a prohibited 
practice for an MTO to fail to include the required minimum information 
in a demurrage and detention invoice sent to a party other than a VOCC. 
Sending incomplete bills that do not contain sufficient information for 
shippers to verify if the bills received are accurate would not 
constitute having just and reasonable practices relating to or 
connected with receiving, handling, storing or delivering property. 
Extending the elimination of charge obligations provision at 46 U.S.C. 
41104(f) to MTOs issuing demurrage and detention invoices would enforce 
Congress' intent to have the Commission ``further define prohibited 
practices by . . . marine terminal operators, . . . under section 
41102(c) of title 46, United States Code, regarding the assessment of 
demurrage or detention charges'' and ensure that all demurrage and 
detention bills sent to billed parties provide the necessary 
information for the bills to be paid or disputed quickly thereby 
ensuring efficiency across the shipping system.

Sec.  541.6 Contents of Invoice

    This final rule makes minor changes to the proposed requirements 
regarding digital notification of how a billed party can request fee 
mitigation, refund, or waiver as well as minor, non-substantive changes 
to align language with OSRA 2022 and the defined terms in Sec.  541.3.
    The Commission has made changes throughout the regulation to align 
the text to the defined terms in Sec.  541.3. ``Invoice'' has been 
replaced with ``demurrage or detention invoice.'' ``Billing date'' and 
``billing due date'' have been changed to ``invoice date'' and 
``invoice due date.'' Finally, ``invoiced party'' has been changed to 
``billed party.''
    In response to comments, the Commission has added language that 
clearly specifies that the information submitted on the invoice must be 
accurate. Inclusion of the language aligns with the language used in 46 
U.S.C. 41104(d)(2).
    The Commission has amended the introductory sentences of paragraphs 
(a), (b), and (c) to make clear that these are minimum information 
elements. Billing parties may include additional information on the 
invoices and are encouraged to do so if they believe that such 
information will be useful to billed parties in verifying the validity 
of demurrage and detention charges.

[[Page 14358]]

    The Commission has amended paragraph (c)(2) by adding terminal 
schedule to the listed examples of documents, and changing ``i.e.,'' to 
``e.g.,'' to reflect that this is not an exhaustive list of all 
possible documents.
    The Commission has amended paragraph (d)(2) to expand the means of 
digital notification to billed parties of what they need to do to 
successfully submit a fee mitigation, refund, or waiver request. The 
language in the proposed rule required that the invoice contain a URL 
address that directs the billed party to a publicly accessible website 
that provides the necessary information. This final rule has expanded 
that to any digital means, including QR codes, or digital watermarks.

Sec.  541.7 Issuance of Demurrage and Detention Invoices

    This rule requires detention and demurrage invoices to be issued 
within specified timeframes. As the proposed timeframe language was 
ambiguous, in this final rule the Commission has clarified that all 
``days'' in the regulation are calendar days.
    The Commission is retaining the requirement as proposed in the NPRM 
that, generally, all demurrage and detention invoices must be issued in 
30 days. The Commission has removed the language ``required timeframe'' 
from the version of Sec.  541.7(a) that appeared in the NPRM in order 
to make this subsection clearer. The Commission has revised this 
subsection to more explicitly dictate the required timing for purposes 
of clarity.
    In response to comments received during the NPRM, the Commission 
has revised Sec.  541.7 to allow an exception for NVOCCs. That 
exception is located in paragraph (b) in this final rule. NVOCCs must 
issue demurrage and detention invoices within 30 days from the issuance 
date of the demurrage or detention invoice it received. If a billing 
party does not issue a demurrage or detention invoice within the 
required timeframe, then the billed party is not required to pay the 
charge. Paragraph (c) has been added to reflect situations where an 
NVOCC is acting as both a billing and billed party in relation to the 
same charge, and allows the NVOCC to inform its billing party that the 
charge has been disputed by the NVOCC's billed party. In that 
circumstance, the NVOCC must provide an additional 30 days for the 
NVOCC to dispute the charge upon notice.
    The final language of Sec.  541.7(d) has removed the link between a 
billing party reissuing an invoice with an incorrectly billed party's 
disputing of that invoice. This is consistent with the incentive 
present in the rest of the rule. The burden of issuing a correct 
invoice should not rely on an incorrectly billed party to dispute the 
incorrect invoice. Removing this link is also consistent with several 
comments that requested removing the 60-day requirement from Sec.  
541.7(d), which applied to bills sent to a correctly billed party 
following the billing of an incorrect party. Section 541.7(d) now gives 
a billing party 30 calendar days to issue a corrected invoice, which is 
consistent with the rule's purpose of a swift timeline for demurrage 
and detention billing.
    The NPRM's linking a billing party's ability to reissue an invoice 
with an incorrectly billed party's disputing that invoice also caused 
confusion as to whether there was any interplay between Sec.  541.7 and 
Sec.  541.8. The changes to the rule text adopted in this final rule 
make clear that Sec.  541.7 spells out the rules for issuing an invoice 
to the correctly billed party. By contrast, Sec.  541.8 speaks to a 
process that assumes the invoice was sent to the correct party, as the 
term ``billed party'' encompasses the fact that it is the correct 
party.

Sec.  541.8 Requests for Fee Mitigation, Refund, or Waiver

    This rule requires billing parties to allow at least 30 days for 
billed parties to submit a fee mitigation, refund, or waiver request. 
The Commission has retained the NRPM's proposal that if such a request 
is submitted by the billed party, the billing party must resolve the 
request within 30 days. However, based on public comments, the 
Commission has allowed an exception. A request for fee mitigation, 
refund, or waiver may be resolved later than 30 days if both parties 
agree to the later date. The Commission has added language to clarify 
that the timeframes in the regulation are calendar days. Also based on 
public comment, the Commission has removed the penalty provision 
proposed in the NPRM that if the billing party fails to resolve the fee 
mitigation, refund, or waiver request within the 30-day deadline, the 
billed party is not required to pay the charge at issue. This proposed 
penalty provision is not a requirement of OSRA 2022.
    Section 541.8 does not impact a party's right to file a Charge 
Complaint with the Commission. Parties do not need to wait a certain 
period of time or for a triggering event to occur prior to filing a 
complaint. Parties interested in filing a Charge Complaints at the 
Commission may do so by following the steps outlined on the 
Commission's website.\295\
---------------------------------------------------------------------------

    \295\ Industry Advisory--Interim Procedures for Submitting 
``Charge Complaints'' Under 46 U.S.C. 41310--Federal Maritime 
Commission--Federal Maritime Commission (fmc.gov) (posted July 14, 
2022) (https://www.fmc.gov/industry-advisory-interim-procedures-for-submitting-charge-complaints/).
---------------------------------------------------------------------------

    When the Commission receives sufficient information, it will 
promptly initiate an investigation.\296\
---------------------------------------------------------------------------

    \296\ Id.

                                    Table 1--Changes From NRPM to Final Rule
----------------------------------------------------------------------------------------------------------------
               Section                        Paragraph             Change from NPRM              Reason
----------------------------------------------------------------------------------------------------------------
541.2 Scope and applicability........  (a)....................  Removes ``to a billed    Language unnecessary.
                                       (b)....................   party or their          Correction of
                                                                 designated agent''.      scrivener's error.
                                                                Changes ``regulation''
                                                                 to ``part''.
541.3 Definitions....................  ``Billing dispute''....  Definition removed.....  Language unnecessary.
                                                                                          Correction of
                                                                                          scrivener's error.
                                                                                          Term not used in Sec.
                                                                                          Sec.   541.4-541.99.
                                       ``Consignee''..........  Definition added.......  Final Rule allows
                                                                                          consignees to be an
                                                                                          alternative billed
                                                                                          party.
                                       ``Person''.............  Definition added.......  Clarification.
541.4 Properly issued invoices.......  (a)....................  Paragraph divided into   Final Rule allows
                                                                 subparagraphs (a)(1)     consignees to be an
                                                                 and (2); consignees      alternative billed
                                                                 listed as an             party.
                                                                 alternative billed
                                                                 party.

[[Page 14359]]

 
                                                                ``provided ocean         The term ``cargo'' was
                                                                 transportation or        added to put the focus
                                                                 storage'' changed to     on the storage of the
                                                                 ``provided ocean         container rather than
                                                                 transportation or        the merchandise inside
                                                                 storage of cargo''.      of it and to be
                                                                                          consistent with the
                                                                                          addition of the term
                                                                                          in the second clause.
                                                                ``for the carriage or    The term ``goods'' was
                                                                 storage of goods''       changed to ``cargo''
                                                                 changed to ``for the     for a broader term
                                                                 ocean transportation     that put the focus on
                                                                 or storage of cargo''.   the container rather
                                                                                          than the merchandise
                                                                                          inside it.
                                       (b)....................  Language added stating   Clarification.
                                                                 that invoices cannot
                                                                 be issued to more than
                                                                 one party.
                                       (c)....................  Formerly paragraph (b).  Conforming amendment.
541.5 Failure to include required                               ``invoice'' changed to   Conforms regulatory
 information.                                                    ``charge''.              language to statutory
                                                                                          language.
541.6 Contents of invoice............  Introductory paragraph.  removed................  Information
                                                                                          incorporated into
                                                                                          other paragraphs.
                                       (a)....................  ``The invoice'' changed  Correction of
                                                                 to ``A demurrage or      scrivener's error.
                                                                 detention invoice''.
                                                                ``including'' changed    Clarification.
                                                                 to ``and at a minimum
                                                                 must include''.
                                                                In (a)(4), ``invoiced    Correction of
                                                                 party'' changed to       scrivener's error.
                                                                 ``billed party''.
                                                                ``must be accurate''     Clarification.
                                                                 added.
                                       (b)....................  ``The invoice'' changed  Correction of
                                                                 to ``A demurrage or      scrivener's error.
                                                                 detention invoice''.
                                                                ``including'' changed    Clarification.
                                                                 to ``and at a minimum
                                                                 must include''.
                                                                ``must be accurate''     Clarification.
                                                                 added.
                                                                In (b)(1) and (2)        Conforming change;
                                                                 ``billing date''         elsewhere in the
                                                                 changed to ``invoice     regulatory text
                                                                 date''.                  ``invoice'' is used.
                                       (c)....................  ``The invoice'' changed  Correction of
                                                                 to ``A demurrage or      scrivener's error.
                                                                 detention invoice''.
                                                                ``including'' changed    Clarification.
                                                                 to ``and at a minimum
                                                                 must include''.
                                                                ``must be accurate''     Clarification.
                                                                 added.
                                                                In (c)(2) ``(i.e., the   Clarification/
                                                                 tariff name and rule     Correction of
                                                                 number, applicable       scrivener's error.
                                                                 service contract         Adds terminal schedule
                                                                 number and section, or   to the list of
                                                                 applicable negotiated    examples and clarifies
                                                                 arrangement)'' changed   that this is a non-
                                                                 to ``e.g., the tariff    exhaustive set of
                                                                 name and rule number,    examples.
                                                                 terminal schedule,
                                                                 applicable service
                                                                 contract number and
                                                                 section, or applicable
                                                                 negotiated
                                                                 arrangement)''.
                                       (d)....................  ``The invoice'' changed  Correction of
                                                                 to ``A demurrage or      scrivener's error.
                                                                 detention invoice''.
                                                                ``including'' changed    Clarification.
                                                                 to ``and at a minimum
                                                                 must include''.
                                                                In (d)(2), ``The URL     Expands the means of
                                                                 address'' changed to     digital notification.
                                                                 ``Digital means, such
                                                                 as a URL address, QR
                                                                 code, or digital
                                                                 watermark, that
                                                                 directs the billed
                                                                 party to''; ``portion
                                                                 of the billing party's
                                                                 website'' removed.
                                       (e)....................  ``The invoice'' changed  Correction of
                                                                 to ``A demurrage or      scrivener's error.
                                                                 detention invoice''.
                                                                ``must be accurate''     Clarification.
                                                                 added.
541.7 Issuance of demurrage and        (a)....................  ``30 days'' changed to   Clarification.
 detention invoice.                                              ``thirty (30) calendar
                                                                 days''.
                                                                ``demurrage or           Correction of
                                                                 detention invoices''     scrivener's error.
                                                                 changed to ``a
                                                                 demurrage or detention
                                                                 invoice''.
                                                                In the second sentence   Clarification.
                                                                 ``the required
                                                                 timeframe'' changed to
                                                                 ``thirty (30) calendar
                                                                 days from the date on
                                                                 which the charge was
                                                                 last incurred''.

[[Page 14360]]

 
                                       (b)....................  New paragraph added....  Clarifies timeframe for
                                                                                          NVOCCs passing through
                                                                                          demurrage and
                                                                                          detention charges to
                                                                                          issue their own
                                                                                          invoices.
                                       (c)....................  New paragraph added....  Clarifies timeframe for
                                                                                          NVOCCs when acting as
                                                                                          both a billing and
                                                                                          billed party in
                                                                                          relation to the same
                                                                                          charge.
                                       (d)....................  Formerly paragraph (b).  Conforming amendment.
                                                                In the first sentence    Correction of
                                                                 ``the incorrect          scrivener's error and
                                                                 party'' changed to       clarification to
                                                                 ``an incorrect           further distinguish an
                                                                 person''.                incorrectly issued
                                                                                          invoice.
                                                                ``days'' changed to      Clarification.
                                                                 ``calendar days''.
                                                                In the NPRM, the         Shifts burden to the
                                                                 correct billed party     billing party to issue
                                                                 had to receive the       accurate invoices.
                                                                 invoice within 30 days
                                                                 from the date of the
                                                                 dispute, but no later
                                                                 than 60 days after the
                                                                 charges were last
                                                                 incurred. The final
                                                                 rule instead imposes a
                                                                 strict 30-calendar-day
                                                                 deadline from when the
                                                                 charges were last
                                                                 incurred for the
                                                                 issuance of an invoice
                                                                 to a correct billed
                                                                 party, regardless of
                                                                 whether or not there
                                                                 may have been an
                                                                 invoice previously
                                                                 issued to an incorrect
                                                                 party.
541.8 Requests for fee mitigation,     (a)....................  Paragraph reworded.....  Clarification. The
 refund, or waiver.                                                                       paragraph has been re-
                                                                                          worked for clarity. No
                                                                                          substantive change
                                                                                          from the NPRM; billing
                                                                                          parties must still
                                                                                          allow billed parties
                                                                                          30 days from when an
                                                                                          invoice is issued to
                                                                                          request mitigation,
                                                                                          refund or waiver.
                                                                                          Clarification that the
                                                                                          timeframe is in
                                                                                          calendar days.
                                       (b)....................  ``must resolve''         Change promotes good-
                                                                 changed to ``must        faith efforts of
                                                                 attempt to resolve''.    billing and billed
                                                                                          parties to work
                                                                                          resolve disputes.
                                                                ``30 days'' changed to   Clarification.
                                                                 ``thirty (30) calendar
                                                                 days''.
                                                                added ``or at a later    Clarification.
                                                                 date as agreed upon by
                                                                 both parties'' to the
                                                                 end of the first
                                                                 sentence.
                                                                ``If the billing party   Removes non-statutory
                                                                 fails to resolve the     penalty.
                                                                 fee mitigation,
                                                                 refund, or waiver
                                                                 request within the 30-
                                                                 day deadline, the
                                                                 billed party is not
                                                                 required to pay the
                                                                 charge at issue.''
                                                                 removed.
----------------------------------------------------------------------------------------------------------------

V. Rulemaking Analyses and Notices

A. 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 
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.
    This final rule requires VOCCs, NVOCCs, and MTOs to include 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, 
billing parties must issue demurrage and detention invoices within 30 
calendar days from when charges stop accruing. See 87 FR at 27975-
27976.
    The Commission presumes that VOCCs and MTOs generally do not 
qualify as small entities under the guidelines of the Small Business 
Administration (SBA). 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-calendar 
day deadline to issue an invoice from when demurrage and detention 
charges stop accruing could result in a loss of revenue to the billing

[[Page 14361]]

party. In addition, 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 this rule will not have a significant economic impact on 
a substantial number of small entities.

B. Congressional Review Act

    The rule is not a ``major rule'' as defined by the Congressional 
Review Act (5 U.S.C. 801 et seq). The rule will not result in: (1) An 
annual effect on the economy of $100,000,000 or more; (2) a major 
increase in costs or prices; or (3) significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based companies to compete with foreign based 
companies. 5 U.S.C. 804(2).

C. 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 1500-1508) require it 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). After an environmental assessment, the 
Commission issued a Finding of No Significant Impact (``FONSI''), 87 FR 
73278 (Nov. 29, 2022), and explained that the FONSI would become final 
10 days after publication unless a petition for review was filed with 
FMC by Dec. 9, 2022. (The World Shipping Council and Pacific Merchant 
Shipping Association jointly filed a petition for review on December 9, 
2022.\297\ FMC denied the petition on January 6, 2023.\298\). The FONSI 
and environmental assessment, as well as the petition and the 
Commission's denial of the petition are available for inspection in the 
docket at www.regulations.gov.
---------------------------------------------------------------------------

    \297\ FMC-2022-0066-0162.
    \298\ FMC-2022-0066-0278.
---------------------------------------------------------------------------

D. Paperwork Reduction Act

    This final rule calls for a collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 
CFR 1320.3(c), ``Collection of Information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other, similar 
actions. In compliance with the PRA, the Commission submitted the 
proposed information collection to the Office of Management and Budget. 
Notice of the information collections was published in the Federal 
Register and public comments were invited. 87 FR 62341, 62356 (Oct. 14, 
2022). Neither the Commission nor OMB received any comments that 
impacted the FMC's burden calculation or provided additional 
information to improve the calculation estimate.
    The title and description of the information collections, a 
description of those who must collect the information, and an estimate 
of the total annual burden follow. The estimate covers the time for 
reviewing instructions, searching existing sources of data, gathering 
and maintaining the data needed, and completing and reviewing the 
collection.
Title: 46 CFR Part 541--Demurrage and Detention Billing Requirements
    Summary of the Collection of Information: Title 46 U.S.C. 
41104(a)(15) and (d)(2), as well as 46 CFR part 541 subpart A, 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 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.
    Need for Information: 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, 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.
    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 person-hours 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.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this rule to the Office of 
Management

[[Page 14362]]

and Budget (OMB) for its review of the collection of information. 
Before the Commission may enforce the collection of information 
requirements in this rule, OMB must approve FMC's request to collect 
this information. You need not respond to a collection of information 
unless it displays a currently valid control number from OMB.

E. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards in E.O. 12988, ``Civil 
Justice Reform,'' (61 FR 4729, Feb. 7, 1996) to minimize litigation, 
eliminate ambiguity, and reduce burden.

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 amends title 46 of the CFR by adding part 541 to read as 
follows:

0
1. Add part 541 to read as follows:

PART 541--DEMURRAGE AND DETENTION

Sec.
Subpart A--Billing Requirements and Practices
541.1 Purpose.
541.2 Scope and applicability.
541.3 Definitions.
541.4 Properly issued invoice.
541.5 Failure to include required information.
541.6 [Reserved]
541.7 Issuance of demurrage and detention invoice.
541.8 Requests for fee mitigation, refund, or waiver.
541.9-541.99 [Reserved]
Subpart B [Reserved]

    Authority: 5 U.S.C. 553; 46 U.S.C. 40101, 40102, 40307, 40501-
40503, 41101-41106, 40901-40904, and 46105; and 46 CFR 515.23.

Subpart A--Billing Requirements and Practices


Sec.  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 be adhered to when invoicing for demurrage or 
detention.


Sec.  541.2  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 for the collection of demurrage or detention 
charges.
    (b) This part does not govern the billing relationships among and 
between ocean common carriers and marine terminal operators.


Sec.  541.3   Definitions.

    In addition to the definitions set forth in 46 U.S.C. 40102, when 
used in this part:
    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.
    Consignee means the ultimate recipient of the cargo; the person to 
whom final delivery of the cargo is to be made.
    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.
    Person means an individual, corporation, or company, including a 
limited liability company, association, firm, partnership, society, or 
joint stock company existing under or authorized by the laws of the 
United States or of a foreign country.


Sec.  541.4   Properly issued invoices.

    (a) A properly issued invoice is a demurrage or detention invoice 
issued by a billing party to:
    (1) The person for whose account the billing party provided ocean 
transportation or storage of cargo and who contracted with the billing 
party for the ocean transportation or storage of cargo; or
    (2) The consignee.
    (b) If a billing party issues a demurrage or detention invoice to 
the person identified in paragraph (a)(1) of this section, it cannot 
also issue a demurrage or detention invoice to the person identified in 
paragraph (a)(2) of this section.
    (c) A billing party cannot issue an invoice to any other person.


Sec.  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 eliminates any obligation of 
the billed party to pay the applicable charge.


Sec.  541.6  [Reserved]


Sec.  541.7   Issuance of demurrage and detention invoices.

    (a) A billing party must issue a demurrage or detention invoice 
within thirty (30) calendar days from the date on which the charge was 
last incurred. If the billing party does not issue a demurrage or 
detention invoice within thirty (30) calendar days from the date on 
which the charge was last incurred, then the billed party is not 
required to pay the charge.
    (b) If the billing party is a non-vessel-operating common carrier, 
then it must issue a demurrage or detention invoice within thirty (30) 
calendar days from the issuance date of the demurrage or detention 
invoice it received. If such a billing party does not issue a demurrage 
or detention invoice within thirty (30) calendar days from the issuance 
date of the demurrage or detention invoice it received, then the billed 
party is not required to pay the charge.
    (c) A non-vessel-operating common carrier (NVOCC) can be both a 
billing and billed party in relation to the same charge. When an NVOCC 
is acting in both roles, it can inform its billing party that the 
charge has been disputed by the NVOCC's billed party. The NVOCC's 
billing party must then provide an additional thirty (30) calendar days 
for the NVOCC to dispute the charge upon this notice.
    (d) If the billing party invoices an incorrect person, the billing 
party may issue an invoice to the correct billed party provided that 
such issuance is within thirty (30) calendar days from the date on 
which the charge was last incurred. If the billing party does not issue 
this corrected demurrage or detention invoice within thirty (30) 
calendar days from the date on which the charge was last incurred, then 
the billed party is not required to pay the charge.


Sec.  541.8  Requests for fee mitigation, refund, or waiver.

    (a) The billing party must allow the billed party at least thirty 
(30) calendar days from the invoice issuance date to request 
mitigation, refund, or waiver of fees from the billing party.
    (b) If a billing party receives a fee mitigation, refund, or waiver 
request from a billed party, the billing party must attempt to resolve 
the request within thirty (30) calendar days of receiving such a 
request or at a later date as agreed upon by both parties.

[[Page 14363]]

Sec.  541.9-541.99   [Reserved]

0
2. Delayed indefinitely, add Sec.  541.6 to read as follows:


 Sec.  541.6   Contents of invoice.

    (a) Identifying information. A demurrage or detention invoice must 
be accurate and contain sufficient information to enable the billed 
party to identify the container(s) to which the charges apply and at a 
minimum must include:
    (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 billed party is the proper party of 
interest and thus liable for the charge.
    (b) Timing information. A demurrage or detention invoice must be 
accurate and 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 and at a minimum must include:
    (1) The invoice date;
    (2) The invoice 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. A demurrage or detention invoice must be 
accurate and contain sufficient information to enable the billed party 
to identify the amount due and readily ascertain how that amount was 
calculated and must include at a minimum:
    (1) The total amount due;
    (2) The applicable detention or demurrage rule (e.g., the tariff 
name and rule number, terminal schedule, 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. A demurrage or detention invoice must be 
accurate and 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, and at a minimum must include:
    (1) The email, telephone number, or other appropriate contact 
information for questions or request for fee mitigation, refund, or 
waiver;
    (2) Digital means, such as a URL address, QR code, or digital 
watermark, that directs the billed party to a publicly accessible 
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
    (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. A demurrage or detention invoice must be 
accurate and 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.

0
3. Delayed indefinitely, add Sec.  541.99 to read as follows:


 Sec.  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. The valid control number for this 
collection of information is 3072-XXXX.

Subpart B [Reserved]

    By the Commission.
David Eng,
Secretary.
[FR Doc. 2024-02926 Filed 2-23-24; 8:45 am]
BILLING CODE 6730-02-P