This would include arguments and evidence that demurrage and detention have purposes other than as financial incentives. 214. However, an interpretive rule does not have to meet the requirements concerning notice to the public and opportunity for comment set out in the APA. [324], Marine terminal operators and ocean carriers also point out that they suffer costs due to government inspections despite having no control over inspections. NAWE at 17; PMSA at 12 ([T]he Commission has no authority to require non-tariff publication of rates and charges, however desirable it might be from a customer service standpoint.). Cotton Shippers Ass'n at 4; Am. In sum, none of these features of government inspections distinguish them from other circumstances that prevent shippers from retrieving cargo. League at 15; Shapiro at 2. 5 U.S.C. The terms "regulation" and "rules" are important concepts that are not always straightforward. See Florida Customs Brokers Forwarders Ass'n; IMC Companies at 2; John S. Connor Global Logistics at 7; Int'l Fed. 319. If you want to request a wider IP range, first request access for your current IP, and then use the "Site Feedback" button found in the lower left-hand side to make the request. 199. The same goes for commenters' assumptions that the rule requires things like starting and stopping the free time clock each time a container becomes unavailable on a minute-by-minute basis[155] Commission precedent is not binding on the Commissionthe Commission can change course in a subsequent case. 294. See Adenariwo v. BDP Int'l, FMC Case No. of Freight Forwarders Ass'ns at 7. 36. The APA provides that the notice-and-comment requirement does not apply to interpretive rules, and, thus, agencies may issue interpretive rules without any public input. League at 13; Sea Shipping Line at 2; see also IICL at 2. informational resource until the Administrative Committee of the Federal Administrative rulemaking is primarily done through "notice-and-comment rulemaking": generally, an agency drafts rules, publishes a notice in the Federal Register to announce the proposed rule and solicitpublic feedback (comments). But others have approached performance objectives with caution. See NYNJFFFBA (The NYNJFFBA would like to suggest that disputes that cannot be easily solved between the parties be decided by binding decision of an impartial arbitrator. 215. 1348, 1356 n.14 (ALJ 2003)). E.g., Ports Am. The primary purpose of the shipping laws administered by the FMC is to protect the shipping industry's customers, not members of the industry, Boston Shipping Ass'n v. Fed. 188. [243] Indus., 67 F. Supp. [402], The Commission also supported defining demurrage and detention in terms of what asset is the source of the charge (land or container) as opposed to the location of a container (inside or outside a terminal). In the import context, a dual move is where a trucker drops off an empty container and picks up a loaded container on the same trip to a terminal. WASHINGTON, D.C. Today, the Consumer Financial Protection Bureau (CFPB) issued an interpretive rule clarifying that the prohibition against sex discrimination under the Equal Credit Opportunity Act (ECOA) and Regulation B includes sexual orientation discrimination and gender identity discrimination. and the entire financial responsibility for no-fault situations.[245] Additionally, most ocean carriers and marine terminal operators requested confidentiality for the responses and documents they submitted to the Commission during Phase One of the investigation. Marine terminal operators and ocean carriers also prefer that billing be tied to contractual relationships. and gave some examples of the attributes of demurrage and detention practices that might, in the abstract, weigh favorably or unfavorably in the analysis.[44]. The report also noted shippers' perceptions that demurrage charges are not serving to speed the movement of cargo, the purpose for which those charges had originally been intended.[11]. Truckers likely have commercial and other incentives to return equipment in a timely fashion. This site displays a prototype of a Web 2.0 version of the daily 147. League at 6. 305. [217] issuance of rules and regulations. The former suggest that the Commission should set specific timeframes for dispute resolution and billing,[359] Business at 3; PMSA at (arguing that the NPRM erodes the broad and fact-specific standard of section 41102(c)). 122 Tuesday, June 27, 2023 FINANCIAL STABILITY OVERSIGHT COUNCIL 12 CFR Part 1310 [Docket No. The Commission proposed general guidance in the form of factors because the operations of industry stakeholders are too varied nationwide, and the risk of inhibiting commercial innovation is too great, for the Commission to prescribe or prohibit specific practices, at least in this rulemaking. [367] An interpretative rule can explain what the agency thinks a statute or regulation means, but it cannot change the meaning of the statute or regulation. and chassis shortages.[151]. Consequently, instead of prescribing practices that ocean carriers and marine terminal operators must adopt or avoid, the Commission's proposed rule was a non-exclusive list of factors that the Commission may consider when assessing the reasonableness of demurrage and detention practices under 46 U.S.C. penalties. at 252. Therefore, notice on the rule is to be published and comments received from the public should be applied to the rules if they are not against government policy. 370. WebStudy with Quizlet and memorize flashcards containing terms like True or false: In creating an interpretive rule, an administrative agency is required to allow for public participation at 2 (Instead, we endorse the view, espoused by Coalition for Fair Port practices that disputes over detention and demurrage should [be] between the ocean carrier and the BCO, simply because the commercial relationship exists only between the BCO and the ocean carrier.). 41102(c)[1] Coffee Corp.; Green Coffee Ass'n; Am. Likewise, shippers, intermediaries, and truckers identify ocean carrier and marine terminal operator practices that they believe raise reasonableness issues. . Intermediaries Ass'n at 4. [71] The Commission, based on the Fact Finding Officer's reports, noted in the NPRM that these were potentially valuable ideas, but they were not intended to be the only ideas. The Commission emphasized that although the factors in the proposed rule would guide its analysis, each section 41102(c) case would continue to be decided on the particular facts of the case.[45] 135. See Mary Whisner,Some Guidance About Federal Agencies and Guidance, 105 Law Libr. Interim Report at 5-6, 10-11, 12, 14; see also Final Report at 11-18. This assumes that shippers are willing to run the risk of paying demurrage charges on the off chance a force majeure event occurs. For complete information about, and access to, our official publications As to what these extenuating circumstances could be, the NPRM specified one: An example of an extenuating circumstance is whether a cargo interest has complied with its customary responsibilities, especially regarding cargo retrieval (e.g., making appointments, paying freight, submitting paperwork, retaining a trucker). The Commission stated in the NPRM that it would consider in the reasonableness analysis whether and how those policies are made available to cargo interests and truckers and the public.[336] The Commission therefore does not agree with some commenters' arguments that it is always a reasonable practice to charge detention and demurrage after free time regardless of cargo availability or the ability to return equipment. OCEMA at 6 (As noted in the NPRM, OCEMA has encouraged its members to publish their demurrage and detention policies and related dispute resolution processes either directly or via link on the OCEMA website.). Interpretive rule. Merriam-Webster.com Legal Dictionary, Merriam-Webster, https://www.merriam-webster.com/legal/interpretive%20rule. The Bureau of Consumer Financial Protection (Bureau) is issuing this interpretive rule to clarify that, with respect to any aspect of a credit transaction, the prohibition against sex discrimination in the Equal Credit Opportunity Act (ECOA) and Regulation B, which implements ECOA, encompasses sexual orientation discrimination That said, commenters' APA-related arguments are unpersuasive. See Fed. 1989) (It seems to us presumptively reasonable that a controlling principle announced in one adjudication may be modified in a subsequent adjudication . Aggrieved shippers, intermediaries, and truckers took action in 2016 by petitioning the Commission to adopt a rule specifying certain circumstances under which it would be unreasonable for ocean carriers or marine terminal operators to collect demurrage or detention. This interpretation of Boston Shipping Association is consistent with the New York cases. or the interests of chassis lessors,[184] The Commission's point was that disputes about demurrage and detention might be resolved more efficiently if a shipper or trucker knows in advance what type of documentation or other evidence an ocean carrier or marine terminal operator needs to see to grant a free time extension or waiver. By listing examples of ideas that would weigh favorablyideas suggested by shippers and truckersthe Commission was not mandating a specific practice. at 415. [216] Mar. at 3; John S. Connor Global Logistics at 5 ([W]e do not believe it is appropriate for the carriers and/or MTO operators to escalate charges (i.e., impose penalty demurrage) in these situations.). This paragraph of the rule first considers the existence of demurrage and detention policies, that is, whether a regulated entity has demurrage and detention policies that reflect its practices.[334] In addition, although there is a standard UIIA agreement, many terms are dictated by each equipment provider's addendum to the UIIA, which is defined as the provider's schedule of economic and commercial terms not appropriate for inclusion in the uniform Agreement and other terms and conditions of Equipment use.[174]. [182], Commenters did not object to limiting the rule to containerized cargo, to defining demurrage and detention broadly, or to including reefer cargo within the rule's ambit. [154] WebThis involves a period during which. 141. When an administrative agency has an obligation to enforce or administer a statute, the agency will have the power to create interpretative rules that explain the procedure to enforce the statute. Inc. at 4. . (describing VACIS/X-ray inspection, Radioactive Portal Monitor inspections, and tailgate inspections). Otherwise, notice about container status is typically provided by marine terminal operators. Distribution Servs., 24 S.R.R. The Final Report of the Commission's Supply Chain Innovation Initiative noted that the Initiative excluded two subjects infrastructure investment and port performance metrics. Commissioner Rebecca F. Dye, Supply Chain Innovation Initiative Final Report at 16 (Dec. 5, 2017), https://www.fmc.gov/wp-content/uploads/2019/03/SCITFinalReport-reduced.pdf. The Commission's guidance emphasizes cargo availability and notice thereof because ocean carrier and marine terminal operators generally agreed that their carrier obligations were related to the concepts of reasonable notice of cargo availability and reasonable opportunity to retrieve cargo, and because the issue most frequently discussed during Phase Two was notice of container availability and the relationship between container availability and demurrage free time. Webcauses or is reasonably expected to cause adverse or harmful reactions in the beneficiary. Transworld Logistics Shipping Servs. ) (emphasis added). PMSA at 5-6; WCMTOA at 10-11. 252. [351] [131] The rule further states that the Commission may consider the type of notice, to whom notice is provided, the format of notice, method of distribution of notice, the timing of notice, and the effect of the notice. [65] 3. Am. Generally, it governs relationships between signatory ocean carriers and truckers. SSA Marine at 2; WCMTOA at 5 n.2 (asserting that rule will encourage an explosion of litigation by shippers and truckers who do not want to pay demurrage or detention); see also NAWE at 13. John S. Connor Global Logistics at 6. [103], The other executive order mentioned by commenters is Executive Order 13777, titled Enforcing the Regulatory Reform Agenda.[104] They tend to be complicated and difficult to navigate even for those in the industry (let alone, say, household goods shippers or others less familiar with international ocean shipping). Additionally, fears of an explosion of litigation due to the rule are speculative. . Comm'n, 706 F.2d 1231, 1238 (1st Cir. Interpretation of Shipping Act of 1984Unjust and unreasonable practices with respect to demurrage and detention. Webrule making. The commenters also raised several policy issues relating to the rule in general rather than specific sections. 1921(I), 2014 FMC LEXIS 46, at *3 (FMC Feb. 20, 2014), vacated on other grounds Adenariwo v. Fed. As explained in the NPRM, it makes sense that if free time represents a reasonable opportunity for a shipper to retrieve a container, it should be tied, to the extent possible, to cargo availability, and the Commission recognizes the merits of that approach. But in any case, the Commission would need to examine precisely the lien at issue. v. CFTC, 720 F.3d 370, 381 (D.C. Cir. (As far as ports go it[']s important each terminal be certified with a capacity like in any other industry, this capacity should be based on the standard of efficiency and the turnaround time.). J. c. the administrators notice a problem and comment on it. Gulf Coast Ports, 24 S.R.R. In other words, charges should not be assessed in circumstances beyond the shipper's or receiver's reasonable control. ); Int'l Logistics at 1 (I do not think it is fair to say the ocean lines are responsible for the problems associated with billing port storage and container per diem when they are required by your tariff requirements to bill everyone according to their published tariff.); cf. If the answer to any of these questions is affirmative, we have a legislative, not an interpretive rule. [89] This relationshiphow marine terminal operators are compensated by ocean carriers for use of their terminal facilitiesis not the primary concern of the guidance in the rule, even if marine terminal operators are compensated by carriers via charges called wharf demurrage or terminal demurrage.[196] WCMTOA and PMSA read this incorrectly to mean that a shipper who was sloppy in its paperwork or did not pay its freight would get extra free time under the rule. National Customs Brokers and Forwarders Association of America (NCBFAA) at 15 (Carriers often decline mitigation citing FMC regulations that necessitate that they must apply all tariffed charges without exception, which is of course not a reasonable construction of the Shipping Act's requirements.). Interim Report at 9; Final Report at 18. 167. 420. Delivered to your inbox! 1, 2017). Intermediaries Ass'n at 4; Retail Indus. a. judges, legislators, and the president are asked about a proposed rule. [340] 14. Comcast noted that five major cable and telecom industry trade groups petitioned the FCC in January to change the rules. This argument misses the mark, however, because the rule does not determine, prescribe, or order enforcement of a reasonable practice; that is, it does not prescribe specific practices that regulated entities must adopt. at 48852 n.16; Final Report at 20. [317] Examples of such metrics commonly used to assess cargo fluidity include container dwell time, truck turn time, and gate moves. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations." But nothing in the rule changes the burden of proof. In issuing this interpretive rule, were making it clear that lenders cannot discriminate based on sexual orientation or gender identity, said CFPB Acting Director David Uejio. The Commission continues to believe that such guidance will promote fluidity in the U.S. freight delivery system by ensuring that demurrage and detention serve their purpose of incentivizing cargo and equipment velocity, and that the interpretive rule will also mitigate confusion, reduce and streamline disputes, and enhance competition and innovation in business operations and policies. Share sensitive information only on official, secure websites. 3d 373, 422 (D.D.C. 41. Ass'n Port Auth. Transp. [259], The chassis situation is more complicated. The Commission focused on the incentive principle because section 41102(c) requires that regulations and practices be tailored to meet their intended purpose,[69] 353. Accessing Apple Mail Settings from the Mail menu. The Commission adopted the Fact Finding Officer's recommendation on September 6, 2019, and on September 13, 2019, issued its proposed guidance in an NPRM. Bd., Policy Statement on Demurrage and Accessorial Rules and Charges (STB Oct. 4, 2019), https://www.stb.gov/decisions/readingroom.nsf/UNID/F844367E52874F138525848C0042BFB3/$file/47133.pdf. A few commenters question whether statements in the NPRM that the Commission may consider whether demurrage or detention practices provide for mitigation of charges when cargo cannot be retrieved, or containers returned, can be reconciled with the filed rate doctrine. The filed rate doctrine provides that any entity required to file tariffs governing the rates, terms, and conditions of service must adhere strictly to those terms.[109] [268] FMC Case No. Interim Report at 12; see also FMC Demurrage Report at 18 (There are exceptions to the application of demurrage fees known sometimes as stop the clock provisions.); id. 282. . At the end of the day, the Commission's proposed guidance in this regard is intended to provide advance notice that if ocean carriers or marine terminal operators use terms that are unclear, or use terms inconsistently, and as a consequence confuse or mislead shippers, intermediaries, or truckers, the Commission may take that into account as part of the reasonableness analysis under section 41102(c). Guidance documents may also be known as: "interpretive memoranda, policy statements, guidances, manuals, circulars, memoranda, bulletins, advisories, and the like." FMC Congestion Report at 9, 18. 9 S.R.R. Webinterpretation can be an interpretive rule in any case. 80. Most of the comments about this aspect of the rule were supportive. It reasoned that allowing free time to run during government inspections was permissible because delays related to government inspections were not attributable to ocean carriers or related to their operations. The Commission explained that it may consider in ascertaining reasonableness under section 41102(c) whether ocean carrier and marine terminal operator demurrage and detention dispute resolution policies address things such as points of contact for disputing charges; time frames for raising disputes, responding to cargo interests or truckers, and for resolving disputes; and the types of information and evidence relevant to resolving demurrage or detention disputes.[352] See, e.g., .); id. They argued that the Commission lacks the authority to issue the rule, and that the rule is unnecessary, costly, burdensome, and unfair to ocean carriers and marine terminal operators. 159. Delays related to government inspections, the Commission stated, are not factors that carriers are required to consider in fixing the duration of free time.[316] 19 CFR 118.4(k). Interpretative rule is one among the categories of rules developed by administrative agencies in the exercise of lawmaking powers. represents extreme government intrusion. It is unclear based on the comments whether there is anything the Commission could do regarding demurrage and detention that ocean carriers and marine terminal operations would not object to as overly intrusive regulation. the comments about this model are mostly negative because most commenters preferred billing relationships tied to the entity with whom contractual relationships exist. This rule does not contain any collections of information as defined by 44 U.S.C. Additionally, the rule's primary focus is situations where demurrage and detention do not work because cargo cannot move. The Commission's guidance is not inconsistent with Executive Order 12866. at 864. And the Commission later held in Distribution Services that in the context of a carrier's terminal practices, a regulation or practice must be tailored to meet its intended purpose.[320] Transp. allowing cargo to move freely during disputes,[363] 288. at 2. The In ordinary circumstances, a shipper could not escape liability for demurrage because it is unable to procure a trucker or because its trucker cannot obtain a chassis. 96. [165] Even assuming that is true, the rule does not go so far as to require this change. In Maher Terminals, LLC v. Port Auth. A few commenters assert without citation that free time contemplates that there are pockets within that time where units will be unavailable for various reasons. Ocean Network Express at 1; OCEMA at 4. Shippers, intermediary, and trucker comments are no more self-interested than comments from ocean carriers, marine terminal operators, or chassis providers. The Commission may consider in the reasonableness analysis the existence, accessibility, content, and clarity of policies implementing demurrage and detention practices and regulations, including dispute resolution policies and practices and regulations regarding demurrage and detention billing. [190] none argued that the scope of the rule should be enlarged to include charges imposed by chassis owners. 41102(c). This prototype edition of the Establish a nondiscriminatory regulatory process for the common carriage of goods by water in the foreign commerce of the United States with a minimum of government intervention and regulatory costs; Provide an efficient and economic transportation system in the ocean commerce of the United States that is, insofar as possible, in harmony with, and responsive to, international shipping practices; Encourage the development of an economically sound and efficient liner fleet of vessels of the United States capable of meeting national security needs; and. Petitioners argued that not only were current ocean carrier and marine terminal demurrage and detention practices unjust and unreasonable, but permitting ocean carriers and marine terminal operators to levy these charges even when cargo and equipment could not be retrieved or returned weakened any incentive for them to address port congestion and their own operational inefficiencies. The Act also requires that a tariff be made available electronically to any person . There was significant discussion during the investigation about who should be providing notice related to cargo availability. Relatedly, a frequent complaint of ocean carriers and marine terminal operators is that shippers wait until the last free day to retrieve cargo and that the rule does not account for whether there might be other times within the free time that a shipper could have retrieved its cargo. The NPRM merely proposed that one factor that the Commission may consider in combination with other factors in the reasonableness analysis is how terms are used in light of how they are used elsewhere. Start Printed Page 29655Depending on the facts of the case, the Commission may consider things such as appointment systems and appointment availability and trucker access to the terminal, i.e., congestion. See id. OCEMA at 6. 166 (FMC 1969) for the proposition that terminal operators are only responsible for delays within their control. [270] 84 FR at 48853 ([n]otice that cargo is discharged and in an open area, notice that cargo is discharged, in an open area, free of holds, and proper paperwork has been submitted, and notice of all of the above and that an appointment is available.). 161. An agency is not required to publish a FRFA, however, for the following types of rules, which are excluded from the APA's notice-and-comment requirement: interpretive rules; general statements of policy; rules of agency organization, procedure, or practice; and rules for which the agency for good cause finds that notice and comment is impracticable, unnecessary, or contrary to public interest. at 539). [286] Univ. Shippers, intermediaries, and truckers strongly support notice of cargo availability and urged that the Commission require such notice and specify what information a notice must contain. It is possible that those comments can be reconciled, if the former is referring to demurrage and the latter, detention. E.g., WSC at 18 (arguing that a common thread in the NPRM is that it is completely one-sided). The question in Boston Shipping Association was who should be responsible, the ocean carrier or the consignee, for paying the terminals' cost: Thus, where the terminal is the intermediate link between the carrier and the shipper or consignee, one of these two persons must pay the terminal's cost of providing the services rendered.[237] [260] 604. The Commission also sought in the preamble of the NPRM to give a sense of how those factors might weigh in particular contexts[43] If for some reason the marine terminal could not honor the appointment, it would accommodate the trucker in some other way, such as restarting free time, giving priority to a new appointment, or waiving the need for an appointment. Transp. 160. [274] 339. See 83 FR at 64479 (noting that shippers may have remedies outside the Shipping Act for some complaints, under principles of contract law, agency law, or admiralty law). Gov. and 46 CFR 545.4(d). And, like contracts of adhesion, the terms of tariffs and marine terminal schedules may be drafted with a view to protect to the maximum degree the enterprise that propounds the form, thus minimizing the realization of the reasonable expectations of the adhering party.[166], This is not to say that shippers and intermediaries do not negotiate certain aspects of demurrage and detention, such as free time, in service contracts. As one commenter noted, government holds [impose on marine terminal operators and ocean carriers] a hardship, too.[326] Financial firms use behavioral analytics to connect with potential customers. 103. v. Supertrans Int'l, Inc., 29 S.R.R. [181] 126. Consequently, the final rule does not incorporate any of the language options proposed in the NPRM. 386. At 2; Nat'l Indus. 5th Circuit just asked what the ATF will do if they issue a nationwide injunction against the pistol brace rule. These can be useful [250] . 41102(c). They were already subject to section 41102(c)'s requirement that their practices be just and reasonable. Further, the NPRM makes clear that each demurrage and detention case under section 41102(c) would be decided on its own facts, and the Commission is adding a provision to the final rule to expressly reflect that the Commission may consider additional factors, arguments, and evidence presented in individual cases.
Repo Cars For Sale In Arkansas,
Articles A
an interpretive rule is a rule that
