FMC approves container availability recommendations

By Chris Gillis for Freight Waves

The U.S. Federal Maritime Commission on Sept. 6 unanimously approved a set of recommendations to bring about fairness in the way demurrage and detention fees are administered by ocean carriers and marine terminal operators against American shippers.

Commissioner Rebecca Dye delivered her recommendations to Chairman Michael Khouri and Commissioners Daniel Maffei and Louis Sola for their consideration and approval on Aug. 27.

“I would like to convey how deeply appreciative I am for all the support from my colleagues at the commission and the freight delivery system,” Dye said in an interview.

She particularly complimented the ocean carriers and marine terminal operators, as well as the numerous American importers and exporters, for their input throughout the year-and-a-half-long fact finding investigation. “I’m thrilled,” she said.

Demurrage pertains to the time an import container sits in a container terminal, with carriers responsible for collecting penalties on behalf of the marine terminals. Detention relates to shippers holding containers for too long outside the marine terminals.

In the past five years, shippers have become increasingly outspoken about the way these fees are assessed against them, often pointing out that they are financially penalized for industry events such as sudden marine terminal congestion, which are largely out of their control.

In December 2016, the Coalition for Fair Port Practices filed a petition with the FMC requesting regulatory action against unfair demurrage and detention fee assessments, which was followed by public hearings at the commission in early 2018. The FMC approved the initiation of the Fact Finding 28 investigation in the spring of 2018 and put Dye in charge.

Dye’s recommendations to bring clarity to the way these fees are assessed include:

• Promoting standardized language for demurrage and detention.

•  Simplifying the dispute resolution process and billing practices associated with the assessment of these fees.

•  Providing guidance on what evidence is relevant to promptly resolving demurrage and detention disputes between shippers, ocean carriers and marine terminals.
• Ensuring consistent industry notice for container availability and equipment returns.

To put these recommendations into practice, the FMC will soon publish a notice of proposed rulemaking to establish “interpretive” rules for addressing future demurrage and detention disputes brought before the commission by the industry. (An interpretive rule is an agency rule that clarifies or explains existing laws or regulations.)

Dye has remained transparent with the ocean shipping industry during the investigation. She has further emphasized in industry forums that more work lies ahead in remedying problems related to demurrage and detention assessments.

Among the recommendations approved by the commission will be the establishment of a shippers’ advisory board that will work with the commission on solutions to future container availability problems.

Dye recommended the formation of a shippers’ advisory board that will work with the commission on myriad issues.

In addition, Dye proposed continuing the FMC’s Memphis Supply Chain Innovation Team, which since 2016-17 has brought together shippers, ocean carriers and railroads to address the shortage of available chassis for containers arriving and departing the railhead in Memphis, TN.

“The Memphis team concluded that current chassis provisioning models are not keeping up with growing intermodal container demand and that change is necessary,” Dye said in testimony on May 22 before a Surface Transportation Board hearing focused on rail demurrage and detention.

She explained to the STB members how the Memphis team concluded that a gray chassis pool should be implemented for the Memphis rail hub.

“Major U.S. importers and exporters shared their stories of millions of dollars in inventory held up in congestion in Memphis, resulting from a lack of chassis,” Dye told the STB. “U.S. agricultural shippers believe that they cannot afford another season with current chassis issues.”

The FMC commissioners on Sept. 6 also approved Dye’s recommendation to continue the commission’s involvement with the Memphis team to implement a gray chassis pool.