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February 23, 2024 29 mins

Topic of the Week (2/23/24):

The FMC released their final D&D rule this morning - let's have a first impressions look.

Federal Maritime Commission Final Rule on Demurrage and Detention Billing Requirements:

Part 1 - MTOs included in the scope of this rule
(this will be a multi-part discussion)

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 Strategies)


The Maritime Professorᵀᴹ is an e-learning/educational based company on all things maritime and supply chain - we provide employee trainings, e-content/e-courses, general trainings/webinars, and executive recruiting. Make sure to sign up for the email list so that you will be alerted to when the e-learning content is available, but also, being on the email list will give you exclusive access to promo/discount codes!

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Episode Transcript

Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Lauren Beagen (00:55):
Did you hear the news?
The Detention and DemurrageFinal Rule has been released.
I've been combing through itall morning.
It's a doozy.
It's 115 pages long.
Yeah, 115 pages long.
But that's okay, we'll workthrough it.
Let's at least get some initialimpressions here.

I have notes all over on this.
Let's start chatting about it.
Let's go.
i, welcome to by land and bysea, an attorney breaking down
the weekend supply chainpresented by the Maritime
Professor Me.
I'm Lauren Beagen, 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 andthe wild world of supply chain.
As always, the guidance here isgeneral and for educational
purposes only.
It should not be construed bylegal advice and there is no
attorney client privilegecreated by this video or this
If you need an attorney,contact an attorney.
So usually before we get intothe discussion of the day, we go
through my top three stories ofthe week, but we're not going

to do that today.
We are going to just dive rightinto it.
There was notable news thathappened this week and last week
, admittedly, but let's justjump right into it because we
need to hit.
There's a lot of information inthis detention to merge final
There was some very importantthings that happened, but let's
just dive right into it.

Otherwise, there's going to bea two hour podcast.
I don't want to do that, so, inthe interest of keeping these
moving, I'm going to also.
We'll see how this goes.
I usually have a lot moreclarity on how I'd like this to
There's so much information inthis D&D final rulemaking that I
want to make sure that we hitas much as we can.

But I'd also like to give theinitial disclaimer that you can
probably see it.
I'm still digesting what someof this is and how this all
applies, but this is it.
This is the final rule.
So today, february 23rd, theFederal Maritime Commission
released their final rule text.

The final rule will actuallyappear in the Federal Register
on Monday, which will be thefirst, the true publication of
this final rule, but theyreleased it today so you can see
all the language.
So it was released today.
What the announcement said isthat this new rule established
new requirements for how commoncarriers and marine terminal

operators MTOs we're going totalk about that in a minute.
They said how common carriersand MTOs must bill for demerging
detention charges, providingclarity on who can be billed,
within what timeframe and theprocess for disputing bills.
I stopped at the MTOs because,if you remember and if you've
been listening to these podcastswe've talked about, there was a

big push to get MTOs removed.
Right, mtos, marine terminaloperators those are essentially
ports and terminals.
There was a big push to getmarine terminal operators
removed from this final rulecongressional push to get the
MTOs removed.
But here it is.
We'll talk about it.
Here's a little forward glimpse,though MTOs were not removed,

okay, so continuing on with theannouncement, a key provision of
this rule determines that D&Dinvoices can only be issued to
either one the person for whoseaccount the billing party
provides ocean transportation orstorage of cargo and who
contracted with the billingparty for the ocean
transportation or storage ofcargo, so that direct
contractual relationship thatthey've talked about many, many

times before.
Or they're also adding in nowthe consignee.
So they define the consignee asthe ultimate recipient of the
cargo, the person to whom finaldelivery of the cargo is to be
Again, this is the announcement, giving kind of a brief summary
They also say in thisannouncement D&D bills cannot be

issued to multiple partiessimultaneously.
We're going to be talking aboutthat again.
We're going to be talking aboutthat a little bit later too.
So the rule also requires VOCCsand MTOs here it is again and
MTOs to issue detention, tomerge invoices within 30
calendar days from when chargeswere last incurred.
Okay, so 30 calendar dayscalendar is new.
They previously just said days,30 calendar days from when

charges were last incurred.
And then this is also newnon-vessel operating common
carriers NVOCCs must issue tomerge in detention invoices
within 30 calendar days from theissuance date of the invoice
they receive.
We're also going to talk aboutthat in a minute.
But this is new, the NVOCC nowhas 30 days, because sometimes

the NVOCC is the billed partyand the billing party, meaning
they might be passing it throughor they might be incorporating
it with other charges.
But that's what's happeninghere is they're saying look, the
billed party, the billed partycan send it to the NVO sorry,
the building part.
They send it to the NVO andthen the NVO has 30 days from

the issuance date of the invoicethey received to issue that
next one.
That goes down the line.
That's new.
We'll talk about that a littlebit more.
Build parties have at least 30calendar days to make fee
mitigation, refund or waiverrequests.
So this again is calendar daysthat they're including here.
So build parties have at leastat least they're making it a

clarification that it's at least30 days.
If a timely filed request ismade, the building party must
attempt to resolve the matterwithin 30 days.
So if they make that requestfor dispute resolution within
those 30 days at least 30 daysit must be attempted to be
resolved within 30 days.
You can't just sit on it unlessboth parties agree to a longer

We're going to be talking aboutthat in a minute too.
So that's new, right?
That's new, saying that atleast 30 days and that you can
agree to a longer timeframe ifyou want, if the two parties
The rule also ensures that buildparties understand that
demurged or detention invoicesthey receive by requiring

certain identifiable informationbe included on the building
party by the building party onthe invoice.
So failing to include any ofthe required information in a
detention to merge invoiceeliminates any obligation of the
build party to pay theapplicable charge.
I'm going to say that again.
This is in the announcementthat the FMC set out Failing to
include any of the requiredinformation in a D&D invoice

eliminates any obligation of thebuild party to pay the
applicable charge.
We're going to talk about thatalso in a few minutes.
But it used to say within 30days.
There was a 30 day piece.
The FMC has taken away that 30day piece and kept the
elimination of obligation to paybecause that's what was given

to them.
That was a statutorily I thinkit was congressionally put in
there, so they couldn't removethat.
So the elimination of anyobligation to the build party to
pay the applicable charge.
I say all that with caution,though, because I want you to
make absolutely sure that you'rereading that right.
For your instance, this doesnot eliminate the need for you

to talk to your attorney.
You definitely need to talk toyour attorney, or any attorney,
when you just determine if thisapplies to you and, if you have
been, if your obligation to payhas been eliminated based on
this final rule.
It also says that this is justthe announcement.
It also says if an invoice doesnot comply, a charge party does

have an obligation to pay.
If an invoice does comply sorry, excuse me, let me repeat all
this If an invoice does comply,a charge party does have an
obligation to pay charges bill.
Okay, simple.
The new rule will providerelief to parties who should
never have received a bill forD&D, and that's where they're
talking about that directcontractual relationship.

They want it to go to who it'ssupposed to go to, to the person
who knows the most about what'sgoing on.
Most important piece of thiswhole thing this rule takes
effect May 26, 2024.
They gave it a 90-day effectiveupon publication or effective
upon 90 days after publication.

So you have 90 days to readthis, digest it, understand it,
apply it to your own situation,perhaps update your systems to
be able to handle some of thisinvoicing requirement
information, although theindustry, it seemed, especially
over the last summer, started toupdate some of their systems
Thank you, but you have 90 daysfrom Monday.

So actually you have like 93days, right?
They give you an extra threedays because today's the 23rd.
This goes into the federalregister on February 26th.
That will be the day that 90days starts, which puts us at
May 26, 2024, as the date thatthis final rule will become

So the question is is this done?
Are there any comments allowed?
Is there any way that thismight stop in its tracks or
somehow not be implemented comeMay 26?
Great question, probably, thisis it, and, and every lawyer
loves to say probably right, andthis is not legal advice, this

is general information.
But I say probably because ifthere is a significant adverse
comment filed or significantadverse Reason for this not to
go into effect, it couldpotentially be stopped.
But I'm telling you the trainhas been built, the people are
on board, that the.
The conductor has said allaboard, the doors are shut and

it's about to pull away from thestation.
We are there and unlesssomething happens that you put a
blockade in front of that trainand it's got to be a
Significant blockade it's got tobe a significantly adverse
comment or a significantlyadverse reason the the train is
going to move forward.
So there's a small bite at theapple, but this is not likely to

be stopped at this point.
That's what made the advancednotice of proposed rulemaking
Stage so important.
That's what made the notice ofproposed rulemaking so important
So the a nprm and the nprmthat's what made those stages so
important, because yourcomments would be addressed.
The comments that come inShould they come in in the next
90 days need to be significantlyadverse and likely, because

there were over a hundred and ahundred eighty hundred ninety
comments submitted.
We're not likely to seeanything that rises to that
level because there was plentyof opportunity and plenty of
comments that came in that asignificantly adverse comment
likely would have been addressedthrough those, those exhaustive

So here we are.
We're already 12 minutes in.
We're just going through theannouncement.
So I think what we're gonna dofor today is go really high
We'll hit some of the maintopics, but I'm gonna have to do
a one, two, maybe even threepart series on this.
I'm also gonna be distillingthis down into webinars, should
you want a, a direct webinar toyour employees or to your

association or whatever you'dlike.
But there's a lot of informationhere, so let's go through.
That was the announcement.
There's one little caveat.
There's a piece of the finalrule that may or may not be
effective on May 26.
Contents of invoice sectionfive four one, point six
involves information collectionand must be approved, as Stated
by the FMC, by the OMB, theoffice of management and budget,

so that five four, one dot sixMight have a different effective
Maybe that all happens quickand maybe that can still be part
of this May 26, but just so youknow, there's one little piece
that is outside of the FMC'sability to have it effective on
this 90-day.
So if we go through the history, let's let's kind of take a
step back right.
So the FMC on its own, throughthe fact finding 29, decided

that this was an important thing, that detention and demerge
billing practices, invoicing,was important and that they
needed to clarify it.
They needed to get some, someguardrails in place here,
because prior to this wholeProcess, you could have a
barnapkin that had a number onit and say this is your demerge
charge, and there wasn't a lotof clarity on what was required.

So then, okay, so that the FMCactually started its own
They started in the spring of2022 their own rulemaking.
That was the advanced notice ofproposed rulemaking, and at
that point they asked a lot ofquestions to the industry,
saying what do you think we'rethinking about doing the
rulemaking here?
What do you think?
We have some questions.
What do you think the languageshould be?

Congress was working throughOsra at the time.
The OSHA should bring a formact of 2022, and so that was the
spring of 2022, it was the.
The spring of 2022 was theANPRM and then over that summer
is when Congress finally passedOsra.
The OSHA should inform, liketheir 2022, and said, hey, in
It said, hey, fmc, you shoulddo a rulemaking on detention to

The FMC is like we already,we're already started that.
That started in the spring.
Did you read fact finding 29?
Did you know that we startedthis rulemaking process?
But, regardless, fmc said okay,okay, thanks, congress, we will
take that under advisement.
And so they they folded thatinto their already existing
process of this detention tomerge rulemaking Process that

they had, and so in Osra in theUS, to ship or inform after 2022
, congress listed which I foundvery unique, but Congress listed
13 minimum informationrequirements that you needed to
include on detention to mergebilling invoices.
So no longer could a napkin beappropriate.
You had to have all of thisstuff on an invoice, and so

these items were the date thatthe container is made available.
The port of discharge.
The container number or numbersfor 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 ordemerge rule on which the daily
rate is based.
The applicable rate or ratesper the applicable rule.

The total amount due.
The email, telephone number orother appropriate contact
information for questions orrequests for mitigation of fees.
A statement that the chargesare consistent with any of
federal maritime commissionrules with respect to detention
and merge.
And a statement that the commoncarriers performance did not
cause or contribute to theunderlying invoice charges.

So that's what Congress said.
They went through and saidthese 13 things must be included
So then, fast forward a littlebit to October 2022, the FMC
came out with the notice ofproposed rulemaking, and that
was the last stage.
That's the stage that we'vebeen mulling over quite a bit
We've been talking about it.
I think a lot of the industrywas already starting to maybe

make some initial modificationsbased on some of the NPRM
thinking that, you know,probably some of this might end
up in the final rule, and so 191comments were received from
this notice of proposedrulemaking from this October
14th 2022 text, and so that'swhat the NPRM was was a text

that the commission put out thatsaid we're thinking about this
being the final rule.
What do you think?
So then they received 191comments that tweaked it, and
that's where we're at now.
Is those tweaks?
The FMC, through this 115 pagefinal rule document, addresses
some of those comments,addresses whether they adopted

or declined to adopt any ofthose comments and why.
So this goes through prettysystematically and actually, I
think, very cleanly, looking ateach little area.
So if you had an area that youare really passionate about or
that you felt very strongly thatthe FMC should amend or correct
or change, you can kind of aslong as it was kind of part of

one of those bucket categoriesgo through pretty quickly and
find your topic and see if itwas something that was maybe
modified, updated or declined tobe included at this stage.
And so what we had was 191comments.
They said all major groups ofinterested persons were
represented in the comments.
So they had VOCCs, they hadNVCCs, they had MTOs, they had

motor carriers, they hadbeneficial cargo owners, bcos,
ocean transportationintermediaries, otis, third
party logistics providers, wehad customs brokers, we had
bipartisan groups of the USHouse of Representatives.
We talked about those letters acouple of times.
We had other federal agencies.
We had the National ShippingAdvisory Committee.
That is the commission's ownfederal advisory committee.

All of those differentinterested groups submitted
comments in this 191.
This was, I feel, like a prettyexciting collection of comments
that were submitted.
What they said was about 75% ofcommenters supported the rule
About 75% of commenterssupported the rule.
About 15% questioned the ruleand about 10% did not specify

which to me, if they're breakingit down into percentages, they
were dissecting those commentsso finely and they really were
taking into consideration whatpeople were saying.
What they said was motorcarriers overwhelmingly
supported the entire rule.
Bcos beneficial cargo ownersmostly supported the rules, but
some objected to prohibitingothers from being billed.

Nvoccs and OTIs generallysupported the rules, but with
many objecting to the inclusionof NVOCCs they wanted to be left
Voccs overwhelmingly questionedor did not support the rule.
Nearly all VOCCs questioned therule prohibiting billing other
parties and the timing ofbilling requirements.
About half of VOCCs questionedthe required information from

the ANPRM that the commissionadded to the information
specifically required by ASRA2022.
And MTOs overwhelminglyquestioned this rule, with most
arguing these regulations shouldnot apply to MTOs.
Like I said, there wascongressional support.
There was a lot of discussionover MTOs being included at all.

They were ultimately included.
They were.
So the FMC addressed oridentified that the top three
issues addressed by commenterswere one concerns with the
prohibition on billing otherparties that are not
contractually connected.
Two concerns with additionalinformation the commission
proposed to require, in additionto the ASRA 2022 mandated

And three concerns with timeperiods for billing.
So we are already 20 minutes in,so I'm unfortunately not gonna
be able to go through each andevery one today.
This is gonna have to be a partone, part two, but I do wanna
start to tackle a little bit andmaybe what we can do is tackle
a little bit of the MTOdiscussion.
So the FMC breaks it down into,kind of the different pieces of

the new part 541.
So this part 541 will be theentirely new part that talks
about detention emergencybilling practices, and so Under
541.2, scope and applicability,1a is regulation of MTO demerge
and detention billing practicesand FMC's authority to Regulate.

Well, I should I should pausethere.
This is just kind of how, likeI said, they're identifying it
within the final rule text.
And so this is what they said isthe issue is MTO's and MTO,
which rated associations arguedthe MTO should fall, should not
fall within the scope of thisrule and the FMC's response.
And that's how they issued,that's how they identified and

kind of captured all of this isthat they would go with the
regulation that they're talkingabout.
They would go with kind of the,the shortened issue, and then
they would write out and sayissue and who said what, and
then, not much further down,they would say the FMC's
response in italics and and gothrough.
It's a very systematic way ofaddressing all of these comments

and they've kind of clumpedthem together and and
highlighted some of the notablecommenters Making some of these
So really good process.
I think that as a documentitself, I think that the FMC did
a great job here.
Okay, so MTO's and MTO tradeassociations argue that MTO's
should not fall within the scopeof this rule.
Fmc said the Commission has thestatutory authority to apply

this rule to MTO's and declinesto exclude them from the duties
and responsibilities of issuingAccurate D&D invoices Declines
to exclude them.
Commenters raised two majorarguments against the
Commission's proposed inclusionin the regulations of MTO's.
Commenters argued that theCommission did not have
authority to apply theregulations to MTO and that it

should not apply regulations toMTO's for a variety of reasons
Addressed below individually,and that's where they kind of go
through each of the differentcommenters and what they said.
The Commission is clearstatutory authority to regulate
MTO's under section 4 1 1 0 2sub sub part C, that's the
shipping act.
There is also a clear need,based on the record of this

rulemaking, for theseregulations to address MTO's D&D
invoices sent to entities otherthan VOCC's.
It continues on to say theCommission concludes that this
rule will help ensure the MTO'sD&D billing practices are just
and reasonable Pursuant to theshipping act generally.
4 1 1 0 2 is the section theyreference.

The FMC also declined to followthe commenters into Discussion
of legislative intent and sothat's what was happening here
was the MTO's and certainly anyanybody who was Making an
argument saying that the MTO'sshould not be included.
We're saying that legislativeintent and perhaps some of the
Discussions of Osra leading upto the final enactment of law
Osra Suggested that MTO'sshouldn't be part of it, but the

FMC pretty clearly said thatthey didn't want to go into a
discussion of legislative intentand that it wasn't as
compelling as the actuallanguage given to the FMC and
some of that statutory statutorytext.
And they said they insteadwould like to focus on the plain
letter of the law and theshipping act to keep the
jurisdiction of MTO's intact.
So what they said was this isdirect language, the actual

statutory text of 46 USC 4 1 1 0, 2 sub part C in Congress's
direction to use 46 USC.
So this is the code, this isthe shipping act to define
prohibited, prohibited emergentattention practices for MTO's is
clear and does not necessitateresorting to the incomplete
history of the legislativedrafting process of Osra 2022.
So that's what they're saying.

They didn't want to keep goingdown that line of of the.
It almost felt like the FMC wassaying speculatory or
speculative, but but basicallythey said look, our statutory
sec text says that we can defineProhibited detention merge
practices for MTO's under theshipping act, and so that's what
we are going to be doing here.
Further, on the issue of MTO'sbeing subject to this final rule

, it's as part 5 4 1 governs anyinvoice issued by an ocean
common carrier and VOCC for thecollecting of D&D charges.
Part of the 5 4 1 does notgovern the billing relationship
among in between ocean commoncarriers and Marine terminal
So this is talking about VO's,vocc's and the MTO's the ports.
So the Commission has notreceived information about the
relationship or interactionsbetween VOCC's and MTO's that

warrants regulating the formatused by MTO's to bill VOCC's
At the present time theCommission is confident that the
strong commercial relationshipbetween the parties is enough to
ensure that the properinformation is shared and that
the party who ultimatelyreceives the invoice is
receiving accurate information.
Remember, the FMC said and thisis something to kind of guide

the discussion as you readthrough this rulemaking the FMC
said that the whole reason fortheir starting this rulemaking,
that is the reason for theFOMC's.
This is something to kind ofguide the discussion as you read
through this rulemaking.
The FMC said that the wholereason for their starting this
rulemaking, that they startedthis rulemaking on, was to
clarify what is being billed bywhom.

They wanted clarity over thebilling practices on what is
being billed and by whom.
It says Part 5, 4, and 1 doesapply to all other demerging
detention invoices issued byMTOs.
Mtos often do not have directcontractual relationships with
However, mtos are entitled toseparately assess demerge as an

implied contract, provided thatit is published as part of an
MTO schedule, and there are somesituations where marine
terminal operators impose feesdirectly on shippers and NVOCCs.
A primary concern of thecommission is to ensure billed
parties understand the D&Dinvoices they receive.
That's what they want to do.
They want to ensure billedparties understand the D&D

invoices they receive.
Therefore, in those cases whenMTO charges any party other than
a VOCC, detention or demergecharges so anytime the MTO is
charging anybody other than thecommon carrier, the VOCC, the
commission finds that MTOsshould be subject to the same
regulations that apply to VOCCsand NVOCCs.

So that's what they're saying.
Mtos were not carved out.
They also went on to say veryplainly that the need for
consistency in demerge anddetention invoicing further
supports requiring MTOs tocomply with this rule, because
billed parties should be able toexpect a standardized set of
information in a demerge ordetention invoice, regardless of

whether it comes from a carrieror an MTO.
They're saying look, in theinterest of keeping this clean,
we're not going to createseparate rules here.
We're going to say that MTOs,when they're invoicing demerge
or detention, need to includeall of the same information and
follow all of the same rulesthat the, whether it comes from

a carrier or an MTO.
The FMC also addressed MTOscollecting D&D on behalf of
ocean carriers and basicallysaid that they see this as akin
to an agent relationship.
So they called the MTO theagent who must assume the same
obligations as the VOCC or theNVOCC under the Shipping Act, as
kind of a general statement.
So the text also says look,this is what the text says of

the final rule.
An agent is free to negotiatethe specific acts they will or
will not undertake on behalf ofthe principal.
It is possible that inparticular MTO principle demerge
and detention billingrelationship that the MTO is
responsible for providing all ofthe invoice elements in 41 USC
41104D2, while in other MTOprinciple demerge and detention

billing relationship that theMTO complies with only certain
elements of the code and thatthe invoice must be sent back to
the principal for completion ofthe other elements before the
invoice is issued to the billparty.
So what they're saying is theMTO can act as an agent on
behalf of the VOCC, but whenthat happens they're going to be

responsible for providing allof the invoice elements unless
it was otherwise agreed to, andthen it could be sent back to
the principal for the otherelements, but that it needs to
be even in that agentrelationship.
It needs to be that consistency.
So that's where we're going tostop today.
We already have about a half anhour of discussion here.

I'm going to be doing a parttwo, probably a part three here.
Perhaps I'll even release theseearlier than my weekly Fridays.
But that's what we have fortoday.
I hope that you are as excitedas I am about this rule coming
out because, whether you like itor hate the final result here,
it's a decision, it's a movementin a certain direction.

We have progress.
There is a final rule out.
We have 90 days to digest it,93.
We have May 26 as the finalrule effective date.
This is when all of this goesinto effect.
But, as always, the guidancehere is general and for
educational purposes.
It should not be construed tobe legal advice directly related
to your matter.
If you need an attorney,contact an attorney, but if you

have specific legal questions,feel free to reach out to me at
my legal company, skollStrategies.
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
If you want to listen to theseepisodes on demand or if you
missed any previous episodes,check out the podcast by Landon
by Seed.
If you prefer to see the video,they live on my YouTube page by

Landon by Seed, presented bythe Maritime Professor.
While you're at it, check outthe website MaritimeProfessorcom
Until next week.
This is Lauren Began, theMaritime Professor, and you've
just listened to by Landon bySeed.
I said see you next week, butlook, I think we're going to be
hitting this sooner than nextweek, so we'll see you next time
This is part one of theDetention and Demerge final rule

released from the FederalMaritime Commission.
We'll see you next time.
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