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April 26, 2024 35 mins

Topic of the Week (4/26/24):


There have been some questions about MTOs and their requirements for issuing invoices - let's dive into it a bit. 


Federal Maritime Commission D&D Final Rule text:

https://lnkd.in/gKYbbWvF


The Maritime Professorᵀᴹ presents By Land and By Sea - an attorney breaking down the week in supply chain


with Lauren Beagen (Founder of The Maritime Professorᵀᴹ and Squall Strategiesᵀᴹ)


Let's dive in...


1 - Happy 68th Birthday to the shipping container!


John D. McCown's post:

https://lnkd.in/gkRgwFg7


2 - Federal Trade Commission votes to ban noncompetes.


Matthew Leffler, the Armchair Attorney® has been following this:

https://lnkd.in/gX3xdqGd


3 - Baltimore opens a limited access shipping lane

https://lnkd.in/gm3Y4hU2


-------------------------------

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** As always the guidance here is general and for educational purposes only, it should not be construed to be legal advice and there is no attorney-client privilege created by this video or podcast. If you need an attorney, contact an attorney. **


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Episode Transcript

Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:14):
Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh,
oh, oh, oh, oh, oh, oh, oh, oh,oh, oh, oh, oh, oh, oh, oh, oh,
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oh, oh, oh, oh, oh, oh, oh, oh,oh, oh, oh, oh, oh, oh, oh, oh,
oh, oh, oh.
I got soul coming through.
Won't stop in the beat and ontop of the world Catwalk to the
beat when you see me coming,make some room.

(00:34):
Everywhere I go, I'm in thespotlight.
This is a good life I'm livingbold.
This is what it looks like.
I'm a victim of the world.

(00:56):
So the FMC's final rule ondetention and demurrage is
settling into the industry andthere's some really interesting
conversations and questionsemerging from the general
industry on how this is going towork right.
For the most part it's prettystraightforward, but there's
some gray areas.
We've talked about a few ofthose previously, but we're

(01:17):
going to start diving into someof those questions, and today
one such question is about MTOs,marine Terminal Operators, the
ports and how their requirementsfor invoicing D&D, how that's
going to work.
Let's dive into it a little bitmore today.
Hi, welcome to, by Land and bySea, an attorney breaking down
the weekend supply chainpresented by the Maritime

(01:38):
Professor me.
I'm Lauren Beacon, founder ofthe Maritime Professor and
Squall Strategies, and I'm yourfavorite maritime attorney.
Join me every week as we walkthrough both ocean transport and
surface transport topics in thewild world of supply chain.
As always, the guidance here isgeneral, for educational
purposes only.
It should not be construed tobe legal advice and there is no

(01:59):
attorney-client privilegecreated by this video or this
podcast.
If you need an attorney,contact an attorney.
So before we get into thediscussion of the day, let's go
through my top three stories ofthe week.
All right, well, story numberone happy 68th birthday to the
containerized cargo box.
Yes, yes, the box, thecontainer cargo box that we know

(02:23):
and love today, was onlygenerated, the idea it was only
started into effect 68 years ago.
The idea, born by a trucker,malcolm McLean, became the
foundation on which, I mean,almost all global trade is built
on.
What an invention, right Canyou believe?
We've only been using acontainerized cargo box for 68

(02:46):
years.
That's wild.
So 1956 was when Malcolm McLeanfirst used the box.
And to put a little perspectiveinto it, because sometimes we
talk about this when we talkabout the Key Bridge.
The Key Bridge in Baltimore wasonly built in 1972.
So sometimes it comes up right,why wasn't the bridge more
prepared for a vessel strike?
And I don't want to go too fardown that line, but I mean

(03:09):
vessels at the time had onlybeen carrying cargo boxes for
18-ish years, right 1956 to 1972.
Almost 20 years, but not quite.
It was 16 years.
I got my math wrong.
16 years different.
And they were.
Look, those vessels werenowhere close to as big as they
are now.
I mean, what a thing, right?

(03:29):
So I don't know.
That's just something to put itall into perspective, right?
I'm going to link the post byJohn McCowan.
He actually wrote a chapterabout McLean.
He worked closely with him formany, many years and he wrote a
chapter in a book that he wroteabout Malcolm McLean's life and
how Malcolm McLean got to theidea of having a box for

(03:53):
shipments.
So really interesting stuff.
Go check out the show notes andgo check out that chapter from
John McCown.
All right, story number two Didyou see that non-competes might
be on the way out?
This is a little bit tangentialto the otherwise ocean shipping
that we normally cover, but Ithought that this was pretty
interesting and something thatwe do want to cover, because

(04:14):
many in all industries, right,but certainly in the ocean
shipping or just shippinglogistics world non-competes
come into play.
So what is a non-complete?
It's basically like arestrictive covenant on a
contract right when one partyagrees to not enter into or
start a similar profession ortrade in competition with that

(04:35):
original party.
That's requiring thenon-compete right, so you can't
compete once you leave thiscompany is the overall, overly
simplistic gist of what thenon-competes are.
That's what we're talking about.
So what happened?
So, just this week, the FederalTrade Commission so that's
another independent regulatoryagency similar to the FMC the

(04:56):
Federal Trade Commission votedin a three to two vote to ban
non-competes and they put it outin a final rule.
But be careful, this isn't aslam dunk yet it has an
effective date of 120 days frompublication in the federal
register, and so that's justlike any rule, right.
Even though they voted on it onthat day, the 120 days doesn't

(05:17):
start until it gets posted inthe federal register.
It's kind of like the modernday version of getting put in
the newspaper, right.
So it got put in the FederalRegister so, roughly, the end of
August would probably be theeffective date.
It probably hit the FederalRegister either today or
yesterday, since this vote justhappened this week.
Usually it takes a few days,but likely that puts us at like

(05:39):
the end of August.
But don't count your chickensjust yet, because this is likely
to get appealed, which wouldlikely cause this rule to be
paused.
It's been reported that theChamber of Commerce has said
that they will be filing apetition to the rule.
We'll see if that happens.
This is really interesting,though Matt Leffler, the

(06:00):
armchair attorney, posts aboutthis quite often.
He's been following this quiteclosely for some time.
He was just chatting about ittoday with Dooner on what the
truck.
So go take a look at that.
Follow Matt Leffler and thearmchair attorney if you want to
really follow the details.
But he posted recently aboutthis and he kind of talked about

(06:20):
what he sees and how this isgoing to be moving and he said
look for existing non-competes.
This is how the rule willlikely get put into practice,
what the rule actually said.
So this is from his post.
It said for existingnon-competes, the final rule
adopts a different approach forsenior executives than for other
workers.
It says for senior executives,existing non-competes can remain

(06:42):
in force.
Existing non-competes withworkers other than senior
executives are not enforceableafter the effective date.
The final rule defines the termsenior executive to refer to
workers earning more than$151,164, so just over $151,000,
who are in policy-makingpositions right, so it's policy

(07:04):
making position and making over151, is that senior executive?
And so, matt, this is Matt'slanguage.
And what if it doesn't go toplan?
Well, lawyers are the swords ofthe century and a great battle
is at hand.
If the chamber or others sue,they will challenge this rule in
federal court.
During the challenge, this ruleis likely to be enjoined, and
he says lawyers speak for paused.

(07:25):
Continuing Matt's post here.
Until a final ruling is made,there are three levels of
federal courts to wade throughdistrict court, appellate court
and Supreme Court.
And so, look, I think Matt'spretty right here.
I think that this probably doeshave Supreme Court potential.
But, like I said, step one,what happened this week was the
final rule was voted on andreleased out of the Federal

(07:45):
Trade Commission 120 days foreffective date.
So it's not in place yet.
Right, that's the end of August.
This is just beginning.
Really interesting beginning,though right, we'll have to see
how this ultimately plays out,but a really, really interesting
start here.
But follow Matt Leffler and thearmchair attorney to follow,

(08:05):
kind of, the developments onthese non-competes.
All right.
Story number three Great news Alimited access channel has been
opened in the Baltimore Harborfollowing the collision and
collapse of the Francis ScottKey Bridge.
So yesterday, april 25th, fivecargo vessels were able to
transit through the Fort McHenryLimited Access Channel.

(08:27):
That's what they're calling it,the Fort McHenry Limited Access
Channel.
These were five cargo vesselsthat were otherwise stuck on the
port side of the bridgecollapse right.
So once the bridge went down,part of the story was oh my gosh
, what about the ships that arealready at port, right, that are
berthed at port?
So they finally were able toget out.
So just a few days earlier,april 22nd, us Coast Guard

(08:52):
Sector Maryland announced that a300-foot-wide and 35-foot-deep
limited access channel to thePort of Baltimore was set to
open, and that happenedyesterday.
So this is a 300-foot-wide,35-foot-deep limited access
channel and the announcementsaid that the captain of the

(09:12):
port planned to establish theFort McHenry limited access
channel.
I'm going to read off theirannouncement for commercially
essential vessels on Thursday,april 25th, until 6 am, monday
April 29th or Tuesday April 30thif weather adversely affects
vessel transits.
So they're only opening thisfor about four days well, three

(09:34):
days actually.
As with the other temporarychannels, this new channel will
be marked with lighted aids tonavigation and will be limited
to transit at the direction ofthe captain of the port and
based on the prevailing weatherconditions.
So yesterday, good weather fivevessels were able to get out.
The Fort McHenry Limited AccessChannel will have a controlling
depth of 35 feet, like we said,a 300-foot horizontal clearance

(09:56):
and vertical clearance of 214feet.
Due to the adjacent power lines, the controlling depth and
available width may increasebased on pending survey analysis
.
So it might actually get bigger, but for now that was what they
needed.
Deep draft vessels utilizingthe channel will require a
Maryland state pilot and twoescort tugs ahead and astern of

(10:17):
centerline.
The Maryland pilots will imposea three-foot under keel
clearance requirement for allvessels and limit transits to
winds being less than 15 knotsDue to this channel I'm
continuing to read theannouncement due to the
channel's proximity to thegrounded MV dolly and effects of
a passing vessel, all transitsmust be at or below five knots.
Now remember the dolly wasgoing about seven or eight knots

(10:40):
when it was going through thechannel.
Additionally, each vesselrequesting to transit this
channel must provide theirlength, breadth, depth and total
displacement to be assessed forpotential impacts to the MV
Dolly for planning purposes.
And then it keeps going on.
So that's what's going on,right, that's pretty good.
And actually the DredgingContractors of America said that

(11:00):
, based on this, this 35 footdepth, 300foot wide channel that
should be able to handle about42% of the vessels by size that
normally transit through theport, including many of the
roll-on roll-'s.
Just a testament to, you know,the system really coming
together and the maritimecommunity working together here
and getting this done, andcertainly no short order from

(11:32):
dredging contractors of Americahave been working very hard with
all of the assets coming in.
So all right.
Well, let's get to the meat andpotatoes of the day.
What are we talking about here?
The Federal Maritime Commissionpreviously released the final
rule on detention and demurrage.
They said that the effectivedate of the rule will be May.
You're asking for informationfrom the public.
It has to go through thisregulatory process, this

(12:12):
Paperwork Reduction Act.
So this new rule definesbilling practices.
Let's just take a quick breakhere and make sure that we go
through.
Everybody's on the same pagefor this D&D rule right.
The new rule defines billingpractices for detention to merge
with the main purpose ofsimplifying and identifying what
is being billed by whom.

(12:33):
So through this final rule theFMC clarifies who may be
invoiced, information to beincluded in the invoices, the
timeline for invoicing andrequirements for clear invoice
dispute processes.
So there's a lot of claritythat comes from this rule.
But what we see is that the FMCreally kind of erred on the

(12:53):
side of staying in theguardrails instead of getting
into the real nitty and I don'tthink that ever really happened.
Right, that's kind of theover-exaggerated, but it wasn't
a violative of any rules at thetime to now having some

(13:20):
parameters on what needs to beincluded on an invoice.
That certainly came throughwith OSRA 22,.
But now through this rulemaking, this final text, we have a lot
more clarity on what needs tobe in those invoices.
But we also have clarity onwhat is a properly issued
invoice, and so that goes to thedirect contractual relationship
for properly issued invoices.
And they added consignee whenthe ultimate recipient of cargo

(13:42):
or final delivery.
So what I wanted to talk abouttoday is there's a few questions
that are being asked from theindustry, kind of just generally
popping up about what thismeans for different areas and
different aspects of the supplychain.
And so one of those questionswas about MTOs.
And what about MTOs when theysend their bills to the ocean

(14:04):
carriers to be paid or viceversa, when the MTOs are
collecting the D&D charges onbehalf of the VOCC right?
So sometimes the MTO will sendover to VO to collect and
sometimes the MTO will collecton behalf of.
So there's a lot that's kind ofhappening here and I don't know

(14:27):
if I have a really, reallyclear answer.
But I want to walk through thelanguage with you today.
Again, all of this is not legaladvice.
This is just generaleducational purposes.
If you have specific legalquestions on how you and your
specific instance applies inthis situation, contact an
attorney.
I can't tell you that enough.
If you have specific, directlegal questions, contact an

(14:49):
attorney so that they can walkthrough your specific instance
and how that applies to whatwe're going to be talking about
today.
But for our purposes todaywe're talking about MTOs
generally, and so here's thelanguage from the final rule
discussion.
Essentially, what I see themsaying is it kind of depends on
an agent relationship, and solet's walk through the language

(15:15):
discussion here.
So it said the need forconsistency and demerge of
detention invoicing furthersupports requiring MTOs to
comply with this rule.
And again I've taken this alittle bit out of context, but
this is from the final rulerelease and the discussion part,
so not the actual text of thefinal rule but the discussion
part of what the FMC released.
And they said to comply withthis rule because billed parties

(15:38):
should be able to expect astandardized set of information
in a demurrage or detentioninvoice, regardless of whether
it comes from a carrier or anMTO.
So what this is saying is thatthe shipper or whoever is being
billed for the invoice shouldhave an expectation of a clear
invoice that has all of theinformation that this final rule

(15:59):
is requiring.
So they're saying we don't carewhether it's coming from an MTO
or a carrier, we want what thebilled party receives to be
clear and to contain these 20different data points that we've
outlined in the invoicecontents requirements.
So, continuing on from thediscussion, language requiring
standardized practices from MTOsalso addresses the confusion

(16:21):
raised in comments about whatactual role MTOs play in
invoicing for demerger detention.
Some MTOs told Congress thatthey do not issue their own D&D
invoices, separate from carriers.
Some MTOs have told thecommission that they do not send
traditional demerge ordetention invoices but instead
issue demerge receipts ordisclose charges.

(16:43):
One MTO contended to thecommission that it does not send
D&D invoices to BCOs ortruckers and that it is the
VOCCs who charge BCOs to mergerdetention.
But the same MTO also said thatMTOs sometimes collect merger
detention on behalf of the VOCCs.
So other MTOs said that they dosend D&D invoices.
Yet even if those MTOs agreedthat they do send D&D invoices,

(17:07):
they disagreed with the ideathat these invoices should be
subject to the same regulationas other billing parties.
So I think the FMC went intoall of that detail to kind of
highlight how difficult it is toascertain exactly what usually
happens right.
And so here's continuing onwith the language.

(17:27):
These inconsistent statements byMTOs highlight the need for
clear rules governing all D&Dbilling parties so that billed
parties receive accurateinformation to facilitate faster
payment and dispute resolution.
Allowing MTOs to escape thebasic requirements of this rule
by artfully styling their D&Dinvoices as receipts or
disclosures would undermine thestatute, frustrate the

(17:49):
commission's express intentionto simplify and clarify demerge
and detention invoicing forbilled parties and leave in
place the confusing status quothat spurred Congress to pass
OSRA 2022.
I mean, the FMC almost seems alittle mad.
They're saying look, we want tomake sure that the billed party
gets the accurate informationand gets all of the information

(18:12):
in a clear and consistent way sothat not only is it faster
payment but it's faster todispute resolution.
Continuing on here from some ofthe recopied text from the final
rule discussion further, thelogic of the MTO argument
against regulation is notpersuasive.
If, as some MTOs claim, they donot invoice shippers, bcos and

(18:32):
truckers for D&D, the rule wouldnot affect their practices.
In any event, if MTOs do sendinvoices, however, they should
abide by the same rules as anyother billing party.
So saying if they send thoseinvoices, the invoice has to be
consistent.
If they do have contractualprivity, they should be able to
obtain any information necessaryto issue a compliant invoice

(18:56):
through their contract.
So they're saying look, directcontractual relationship, they
should have all the informationthat they need.
But the FMC continues if MTOs donot have the information
required to issue invoicesconsistent with these rules,
they should not send invoices.
So if they don't have all theinvoice requirement, all the
invoice information that'srequired in this rule, they

(19:17):
should not be the one sendingthe invoice.
They said if they still need tosend these invoices, they
should obtain all of therequired information like any
other billing party, right?
They're saying this invoiceneeds to be consistent and clear
, as outlined in the 20different parts that are
required in the invoice contents.
Continuing on, if they the MTOscannot obtain that information

(19:39):
and they still wish to collect acharge, they should forward the
invoice to a billing party withwhom they have a contractual
relationship and that can complywith this rule and collect the
demerger detention charge afterproviding the billing party
accurate information about thecharge.
So that's where they're kind ofpointing to that, well, if you
want someone else to charge itor send it in an invoice, send

(20:01):
them all the information.
If you don't have all theinformation, send them what you
have.
But they are still going to beon the hook to provide all
accurate information thatcomplies with this rule.
So they forward the invoice tothe billing party with whom they
have that contractualrelationship and then they need
to comply with the rule.
So it's still not exactly clearif MTOs can push their D&D

(20:24):
charges to the VOCCs, right,because they're just saying
whoever they have thecontractual relationship kind of
assumes that that's the VO, butlet's talk through it a bit.
So, like I said, it looks likethey're still allowing for this
opportunity and we see it alittle bit later in the
discussion.
So it said that the FMC itlooks like the FMC is calling
these agent relationships and soeither party who is invoicing

(20:47):
for the other would need todetermine the nature of that
relationship, that agentrelationship.
But the ultimate invoice goingto the shipper, no matter what,
it seems, is the FMC saying thatultimate invoice needs to
comply with the final rule onall these billing requirements.
Right?
The shipper or whoever is thebilled party needs to have that
reliability and consistency ofclarity that this rule provides,

(21:10):
that administrative clarity ofthose 20 data points that need
to be part of the invoicerequirements.
So, reading from the text, thediscussion text, it says MTOs
collecting demerger detention onbehalf of other parties.
So they identify the issue,saying MTOs have raised
questions about I'm going toparaphrase this a bit MTOs have
raised questions about when theyare collecting emergency

(21:31):
detention charges on behalf ofVOs and VOCCs and BCOs.
So the FMC clearly says FMCresponse said in the scenario
described above it is assumedthat the MTO would be acting and
there was a scenario describedof a terminal and when they bill
so it said it is assumed thatthe MTO would be acting as an
agent of the VOCC and VOCC orBCO.

(21:54):
Whether an MTO must comply withthis rule in this case depends
upon the contractual duties ofthe MTO as an agent.
They say traditional rules ofagency remain applicable under
the Shipping Act.
So then they go on to quote arestatement third of agency.
So this is a legal text andthey say as defined by the

(22:14):
common law, the concept ofagency posits a consensual
relationship in which one person, to one degree or another or
respect or another, acts as arepresentative of or otherwise
acts on behalf of another personwith power to affect the legal
rights and duties of the otherperson.
The principal has a right tocontrol the actions of the agent

(22:35):
, but a principal's failure toexercise the right of control
does not eliminate it.
So they're kind of positioningthis principal and agent
relationship right.
So they go on to kind of applyit to the situation.
So while the circumstances ofeach case must be known to make
any particular determination asto whether the agency

(22:56):
relationship exists, it is fairto assume, based on the
restatement's description ofagency, that the majority of
instances where MTOs collectmerge or detention charges on
behalf of another party likelycreate an agency relationship.
Thus, except to the extent thata principal VOCC or NVOCC has
not delegated their obligationsunder 46 USC 41104, the agent

(23:20):
MTO must assume thoseobligations when acting to
collect a merger detentioncharges.
Of course, the exact principalagent relationship is open to
negotiation between theprincipal and agent.
This is all getting a littlebit legalese so I'm going to
continue but I'm going to breakit down.
So what they're kind of sayingis look, it depends on the agent
, the agent MTO and theprincipal relationship.

(23:43):
And it said an agent is free tonegotiate the specific acts
they will or will not undertakeon behalf of the principal, acts
they will or will not undertakeon behalf of the principal.
They can talk about look, whatam I going to be doing in this
agent-principal relationship ifthe MTO is going to be providing
the invoice or if the principalis going to be providing the
invoice and the MTO just givesthem the information.

(24:03):
That's part of thatagent-principal relationship.
So it said, continuing on, mtois responsible for providing all
of the invoice elements in thisrule while in another MTO
principle demerge and detentionbilling relationship that the
MTO complies with only certainelements.
So that's what they're sayingis that the agency relationship
can change and the parties candetermine that.

(24:26):
But then here's the kicker,right at the end, and that the
invoice must be sent back to theprincipal for completion.
So if the MTO agent decidesthey're only going to be
complying with part of the rule,they're kind of saying, look,
it doesn't matter because whatgoes to the build party has to
be a properly issued invoice.
So they're saying the invoicemust be then sent back to the

(24:47):
principal if the MTO is onlydoing part of it, for completion
of the other elements, beforethe invoice is issued to the
build party.
So that says to me that it canbe one or the other issuing the
invoice, but that the invoicethat goes out has to have all

(25:08):
required information and ofcourse properly issued invoice
has to have that directcontractual relationship.
So there's another section inthe final text that discusses
the FMC, saying MTO shouldinvoice shippers directly when
they have all the informationthat is otherwise needed in this
rule and when they don't, thenthey pass.
That information's still alittle bit murky but I think

(25:46):
it's important, right, they gothrough all the different
scenarios when the MTOs may ormay not and when they're telling
the commission that sometimesthey do issue the invoice and
sometimes they don't.
And I'm going to restate thissection.
The inconsistent statement bythe MTOs highlight the need for
clear rules governing alldemersion detention billing

(26:06):
parties so that billed partiesreceive accurate information to
facilitate faster payment anddispute resolution.
That really is the kicker forme.
I think that the FMC is sayinglook, no matter what, the bill
party needs this reliability andthis accurate information.
So, changes to current MTOpractices this is another
section of the discussion of thefinal rule.

(26:29):
The FMC outlines MTOs the issue.
Mtos argued that this rulewould upend settled practices
and increase confusion andcongestion of ports, and the
FMC's response to that readingagain, current billing practices
and the lack of transparency inthose practices have raised
concerns about whether currentpractices allow for a
competitive and reliableAmerican freight delivery system
.
The changes to currentpractices this rule requires are

(26:52):
meant to change the settledpractices that do not ensure
accuracy, clarity and visibilityof charges.
This rule seeks to improve uponexisting practices that do not
provide adequate information forthe efficient invoicing of
charges.
They're saying look, we'retrying to clean all this up, so
whatever that operationalapplication is that you're

(27:13):
having problems with.
We need to clean this up.
And so here's where theycontinue.
Further, these changes provideclarity on how billed parties
access the dispute resolutionprocess.
Requiring targeted informationmay ultimately lead to fewer
disputed bills and thereforestreamline the demurrage and
detention billing process.
As discussed further in thispreamble, the commission is
delaying implementation of therule by 90 days.

(27:35):
The commission believes thatthis is sufficient time to allow
MTOs and other regulatedparties to make the necessary
changes to their businessoperations in order to comply
with the rule.
So they're saying look, thismight be tough, but we're giving
you 90 days.
Get to work, change your system, change your billing practices,
your operational side of things, so that you're ready when this

(27:58):
goes into effect.
And so he said 90 days.
Again, the content the invoicecontents requirement doesn't go
into effect necessarily on May28th.
And I say necessarily becausethat's waiting on OMB approval.
So we'll see what the FMCreleases as that final effective
date.
They could still have thatfinal effective date because

(28:18):
technically they've given noticeof that going into effect.
They just don't have the actualdate.
They could still have thatfinal effective date because
technically they've given noticeof that going into effect.
They just don't have the actualdate, so that one we'll have to
see, but I would say plan forMay 28th, just in case.
It certainly wouldn't be a badpractice to be early prepared in
case that date does slide forthe contents of the invoice
Remember that's the PaperworkReduction Act, that's with OMB.

(28:41):
The rest of the rule goes intoeffect May 28th, as of now.
Another section that I want tohighlight here is burden on MTOs
to comply with the rule andsecurity concerns.
The FMC says the issue here isMTOs argued that applying these
rules to MTOs would force themto expend significant resources
to overhaul their websites andcreate additional security

(29:01):
measures.
The FMC's response is MTOs didnot submit estimates of or
proposals for what work would beneeded or would cost to modify
their systems to comply withthis rule.
One MTO explained they havealready invested significant
resources to modify their systemto incorporate the information
from carriers required by OSRA2022.
So they said at least one MTO.

(29:24):
They said one MTO, but at leastone MTO said that they've
already updated their systemsbecause in OSRA 22, the law that
went into effect June 16, 2022,there were 13 invoice
requirements under that law.
So it says this.
Certainly, reading again, thiscertainly suggests it is
reasonable to expect MTOs tomodify their systems to comply

(29:45):
with this rule.
It is not clear why MTOs coulddo this for their VOCC
customers' invoices but nottheir own invoices.
So that's what the FMC issaying.
Look, we're sorry that this isgoing to be perhaps a pain point
, but at least one has alreadydone it and they think that this
shouldn't be too much of aupheaval.
So what does all that say?

(30:08):
I think and it's going to bevery, very fact, specific, right
, very, very fact, specific andintensive on how it applies.
And that's why, like I said,this is not legal advice, this
is just general discussion.
But it seems to me as a generalthought that MTOs and VOCCs can

(30:29):
shift from one to the other,that the practice of one
collects on behalf of the otherif they don't have all the
information.
But no matter what, the invoicethat goes to that final
customer, that shipper, thebuild party has to have all the
information that's requiredunder this rule.
What that's going to look likeoperationally, right?

(30:53):
And I think that's where thatagent relationship is going to
come into play.
I think it kind of goes back towell, what does your contract
say?
What is that agent relationship?
What are the terms of how youwork with each other?
So we'll see.
We'll see how that goes intoeffect, but something to
consider, something to look intoyourself, right?
Most of the texts that I justread is right out of the

(31:15):
discussion of the final rule.
So go take a look, talk to yourattorney, your specific
attorney, about it and see howit relates to your specific
instance.
There's a few other questionsthat are out there and I'm going
to continue to collectquestions on the gray areas and
do my best to decode.
So if you have questions aroundthis, again, this isn't legal
advice unless we're in a directengagement.

(31:38):
But for our purposes, this isjust general discussion.
This is not legal advice.
We're just.
This is an exercise in tryingto figure out what it says, and
so some of the other questionsthat I want to be looking into
that I've just heard as generalquestions are well, what about
this World Shipping Councilpetition that's been filed in
the US Court of Appeals for theDC Circuit?

(31:58):
They talk about in the petitionfiling exceeding authority.
The FMC is exceeding theirauthority, but it's also been
reported that the World ShippingCouncil is saying in the
petition that the VOCC anddirectly contracted port trucker
.
How does that work?
Right, because that's thedirectly contracted, direct
contractual relationship withthe port trucker.

(32:19):
How does that work right,because that's the directly
contracted, direct contractualrelationship with the port
trucker.
How does that work for billing?
Can they bill?
Because that's a directcontractual relationship, but
it's not necessarily clear underthe final rule text.
I think we could look into thatone a little bit more.
I'm certainly going to befollowing that one along.
There was also a question aboutNVOCCs and the 30, 30, 30, the

(32:42):
30 calendar days.
There's an added 30, right?
We've talked about that.
When an NVOCC goes from buildparty to billing party so they
can be part of that chain ofthey switch.
The billing party sends theinvoice to the NVOCC.
The NVOCC then has 30 days toissue it out as the billing
party to the ultimate bill partyrecipient.

(33:04):
But what happens if there's adispute that goes through the
NVOCC?
That we know.
But what about the disputeprocess?
Website publicly accessiblewebsite requirement that's in
this final rule.
Does the NVOCC have to havethat publicly accessible website
?
I don't know.
That one's going to be aninteresting one.

(33:24):
We're going to dive into thatone a little bit more to see if
we can see any more clarity fromthe text and if there's any
general implementation guidancethat comes out from the FMC.
But there might be some hintsin the text, so we'll dive into
that one.
I've also heard peoplequestioning what about
warehouses and drainageproviders?
Can they be actually sent theinvoice?
They can't be issued theinvoice right, that's what it

(33:45):
said is, it can't be issued.
But can they be sent?
Can they just be on the emailchain so that if they did want
to pay the invoice, they can?
Good question, right, that's agood question.
That's an interesting question.
I don't see why not, but I'mcautious to say that and I'd
like to look into it a littlebit more.
Again, all of this is not legalinformation, legal advice

(34:09):
directly related to your matter.
This is just general,educational information, general
discussion.
But that's it for today.
Tune in every week as wecontinue to break down this D&D
rule periodically, right, andwe're going to continue to
provide updates on some of theother hottest topics in ocean
and surface transportation.
As always, the guidance here isgeneral and for educational

(34:29):
purposes only.
It should not be construed tobe legal advice directly related
to your matter.
If you need an attorney, contactan attorney, but if you do have
specific legal questions, feelfree to reach out to me at my
legal company, squall Strategies.
Otherwise, for the non-legalquestions, the e-learning and
general industry information andinsights, come find me at the
Maritime Professor.
If you like these videos, letme know, comment, like and share

(34:51):
.
If you want to listen to theseepisodes on demand, or if you
missed any of my previousepisodes, check out the podcast
by land and by sea.
If you prefer to see the video,they live on my youtube page by
land and by sea, presented bythe maritime professor.
And while you're at it, checkout the website
maritimeprofessorcom.
So until next week, this islauren beagan, the maritime
professor and you've justlistened to by land and by sea.
See you next time.
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