FEDERAL MARITIME COMMISSION 800 North Capitol Street, N.W.

 Washington, DC 20573-0001

Phone: (202) 523-5725

Secretary@FMC.gov

October 28, 2022

Mr. Michael Symonanis

Acting Chair

National Shipper Advisory Committee

Dear Acting Chair Symonanis:

On behalf of the Federal Maritime Commission (Commission), this responds to Recommendation 1 

from the National Shipper Advisory Committee (NSAC) submitted on August 31, 2022.

NSAC Recommendation 1: A recommendation to codify regulation in concert with the 

Interpretive Rule that prohibits any unreasonable application of charges on containers for 

Early Return Dates (ERD) changes, documentation cut dates, and cargo cut dates while 

shifting the burden of proof to vessel operators and strengthening requirements for

reasonable and timely dispute resolution.

Commission Response

The imposition of any demurrage or detention charge, regardless of cause, is subject to the general 

prohibition contained in 46 U.S.C. § 41102(c) against failure “to establish, observe, and enforce just and 

reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering 

property.” This includes charges resulting from changes to the Earliest Return Dates (ERD). Accordingly, when 

vessel-operating common carriers (VOCCs) assess demurrage or detention fees, the Commission’s interpretive 

rule on demurrage and detention (46 C.F.R. § 545.5) applies. The reasonableness of any charge is evaluated

against the standard in 46 U.S.C § 41102(c) and the interpretative rule. The Commission will evaluate the 

reasonableness of demurrage practices against the practice’s ability to serve the primary purpose as financial 

incentives to promote freight fluidity. 

Although neither section 41102(c) nor the interpretive rule shifts the burden of proof to VOCCs, the 

Commission will take this recommendation into consideration. 

Additionally, the Commission is undertaking a rulemaking aimed at strengthening requirements for 

reasonable and timely dispute resolution with respect to all demurrage and detention invoices received by 

shippers. On February 15, 2022, in response to an interim recommendation from Fact Finding Investigation 29, 

the Commission issued an advance notice of proposed rulemaking (ANPRM) seeking to regulate the billings 

and billing practices of both common carriers and marine terminal operators (MTOs).1 After considering 

comments received in response to the ANPRM and requirements in the Ocean Shipping Reform Act of 2022, the 

Commission recently issued Notice of Proposed Rulemaking.2 The proposed regulation would require a 

1 Demurrage and Detention Billing Requirements, 87 Fed. Reg. 8506 (proposed Feb. 15, 2022). Documents related to this 

rulemaking are available under Docket No. FMC-2022-0066 on www.regulations.gov. 2 Demurrage and Detention Billing Requirements, 87 Fed. Reg. 62341 (proposed Oct. 14, 2022). Comments on the 

proposed rule are due December 13, 2022, and may be submitted through www.regulations.gov.
2

demurrage or detention invoice 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. In addition, it would require billing parties to include the URL address 

of a publicly accessible portion of their website that provides a detailed description of the information and 

documentation that the billed party must provide to successfully request fee mitigation, refund, or waiver. The 

proposed regulation would also require billing parties to resolve fee mitigation, refund, or waiver requests 

within 30 days of receiving the request.

In addition to strengthening requirements for reasonable and timely dispute resolutions with respect to 

demurrage and detention invoices, the proposed regulation would also:

• Adopt the list of minimum information that common carriers must include in demurrage or detention 

invoices as mandated in OSRA and codified at 46 U.S.C. 41104(d)(2);

• Add to the list referenced immediately above additional information that must be included in or with a 

demurrage or detention invoice;

• Further define prohibited practices by clarifying which parties may be billed for demurrage or detention 

charges; and

• Establish billing practices that billing parties must follow when invoicing for demurrage or detention 

charges.

Your recommendation includes two additional matters. First, you recommended the Commission 

investigate carriers charging demurrage or detention fees when Cargo Receiving Windows are changed without 

sufficient notice. The Commission previously engaged issues surrounding ERDs in the Fact-Finding 

Investigation No. 29 A summary of the findings can be found in the Fact Finding Investigation 29 Final Report,

which is on the Commission website.3

Your recommendation also suggested the Commission prohibit MTOs from invoicing shippers directly 

for detention and demurrage charges that are not compliant with VOCCs’ ERD at time of motion. Again, 

section 41102(c) prohibits the imposition of unjust and unreasonable regulations including those related to the 

assessment of demurrage and detention charges. If a shipper believes that common carrier or MTO practices 

related to the assessment of demurrage or detention charges are unreasonable, there are multiple avenues for

shippers to file complaints at the Commission, or report the alleged unreasonable conduct for investigation. 

Thank you for sharing this recommendation of the NSAC. Per the requirements set forth in legislation 

establishing the NSAC, these recommendations will be published on the Commission website and will be 

submitted to the appropriate Congressional committees. Please direct any questions regarding this response to 

the NSAC Designated Federal Officer.

Sincerely, 

William Cody

Secretary

3 Fact Finding Investigation 29 Final Report, Effects of the COVID-19 Pandemic on the U.S. International Ocean Supply 

Chain: Stakeholder Engagement and Possible Violations of 46 U.S.C. 41102(c) at 37 (May 31, 2022), available at: 

https://www.fmc.gov/wp-content/uploads/2022/06/FactFinding29FinalReport.pdf.