Federal Register / Vol. 89, No. 185 / Tuesday, September 24, 2024 / Proposed Rules 77787 

1Public Law 117–146, 136 Stat. 1272 (2022). 

2Section 7, codified at 46 U.S.C. 41102. 

3Section 541.6 sets out substantive requirements 

for what billing parties must include in their 

demurrage and detention invoices. It added several 

provisions in addition to those required by OSRA 

2022. While the statutory invoice elements are selfimplementing and immediately became effective 

upon passage of OSRA 2022, regulated entities were 

not required to comply with the additional 

elements imposed by the Commission until 46 CFR 

541.6 went into effect. Section 541.99 is an 

administrative provision that provides additional 

public notice of OMB approval of the collection of 

information; it does not impose requirements on the 

public. 

4Paperwork Reduction Act (44 U.S.C. 3501– 

3521). 

Stafford Act. 42 U.S.C. 5170(a), (b); 44 

CFR 206.36(a). 

The Public Assistance program is one 

of the programs that may be authorized 

by a declaration, which provides a 

broad range of assistance to State, 

Tribal, Territorial and local 

governments. It provides assistance for 

emergency protective measures, such as 

emergency evacuation, sheltering, and 

debris removal, as well as financial 

assistance for the permanent restoration 

of facilities. In addition, the Stafford Act 

authorizes Community Disaster Loans 

for any local or Tribal government that 

has suffered a substantial loss of tax and 

other revenues as a result of a major 

disaster, and that demonstrates a need 

for financial assistance to perform its 

governmental functions. 42 U.S.C. 5184. 

In ‘‘Update of FEMA’s Public 

Assistance Regulations,’’ FEMA 

proposes to amend its Public Assistance 

and Community Disaster Loan program 

regulations to both improve program 

administration and incorporate statutory 

changes relating to Public Assistance 

and Community Disaster Loans. These 

include the Post Katrina Emergency 

Management Reform Act of 2006 

(PKEMRA), Public Law 109–295, 120 

Stat. 1394, the Security and 

Accountability for Every Port Act of 

2006 (SAFE Port Act), Public Law 109– 

347, 120 Stat. 1884, the Pets Evacuation 

and Transportation Standards Act of 

2006 (PETS Act), Public Law 109–308, 

120 Stat. 1725, the Sandy Recovery 

Improvement Act of 2013 (SRIA), Public 

Law 113–2, 127 Stat. 39, the Emergency 

Information Improvement Act of 2015, 

Public Law 114–111, 129 Stat. 2240, the 

Bipartisan Budget Act of 2018, Public 

Law 115–123, 132 Stat. 64, and the FAA 

Reauthorization Act of 2018, Division D, 

Disaster Recovery Reform Act of 2018 

(DRRA), Public Law 115–254, 132 Stat. 

3438. 

On September 3, 2024, FEMA 

received a request to reopen and extend 

the public comment period in Docket ID 

FEMA–2023–0005. FEMA–2023–0005– 

0119; FEMA–2023–0005–0138. To 

provide additional time for interested 

parties to consider and comment on any 

implications of the ‘‘Update of FEMA’s 

Public Assistance Regulations,’’ FEMA 

reopens and extends the comment 

period from September 4, 2024, to 

October 18, 2024. 

FEMA will consider comments 

received from July 2, 2024 to October 

18, 2024. Please visit 

www.regulations.gov to view the 

proposed rule, comments received, and 

all supporting documents. 

Deanne Criswell, 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. 2024–21556 Filed 9–23–24; 8:45 am] 

BILLING CODE 9111–23–P 

FEDERAL MARITIME COMMISSION 

46 CFR Part 541 

[Docket No. FMC–2024–0010] 

Ocean Carrier Equipment Management 

Association; Denial of Petition for 

Delay of Effective Date of the 

Demurrage and Detention Billing 

Requirements Final Rule 

AGENCY: Federal Maritime Commission. 

ACTION: Denial of petition for 

rulemaking. 

SUMMARY: The Federal Maritime 

Commission (FMC) is denying a petition 

submitted by the Ocean Carrier 

Equipment Management Association 

requesting that FMC delay the effective 

date of the agency’s ‘‘Demurrage and 

Detention Billing Requirements’’ final 

rule. This document includes the 

contents of the actual denial with minor 

modifications to meet publication 

requirements for the Federal Register. 

DATES: The Commission served an order 

denying the petition on September 17, 

2024. 

ADDRESSES: To view background 

documents or comments received, you 

may use the Federal eRulemaking Portal 

at www.regulations.gov under Docket 

No. FMC–2023–0010. 

FOR FURTHER INFORMATION CONTACT: 

David Eng, Secretary; Phone: (202) 523– 

5725; Email: secretary@fmc.gov. 

SUPPLEMENTARY INFORMATION: On May 

28, 2024, the date the Federal Maritime 

Commission’s (Commission or FMC) 

‘‘Demurrage and Detention Billing 

Requirements’’ final rule, 89 FR 14330 

(February 26, 2024), went into effect, the 

Ocean Carrier Equipment Management 

Association (OCEMA) filed with the 

Commission a petition under 46 CFR 

502.51(a) for an extension of the 

effective date of the rule by at least 90 

days. On September 17, 2024, the 

Commission denied the petition for the 

reasons below. 

I. Background 

On June 16, 2022, the Ocean Shipping 

Reform Act of 2022 (OSRA 2022) was 

enacted into law.1 Section 7 of the Act 

prohibits common carriers from issuing 

an invoice for demurrage or detention 

charges unless the invoice includes 

specific information required by the 

statute, and any additional information 

required by the Commission through 

regulation. OSRA 2022 mandated that 

the Commission, by June 16, 2023, issue 

a final rule ‘‘further defining prohibited 

practices by common carriers, marine 

terminal operators, shippers, and ocean 

transportation intermediaries under [46 

U.S.C. 41102(c)] regarding the 

assessment of demurrage or detention 

charges.’’ 2

On February 26, 2024, the 

Commission published the Demurrage 

and Detention Billing Requirements 

final rule in the Federal Register, 89 FR 

14330. With certain limited exceptions, 

the Administrative Procedure Act (APA) 

requires rules to have an effective date 

no sooner than 30 days after publication 

in the Federal Register, 5 U.S.C. 553(d). 

The rule had an effective date of May 

28, 2024, 90 days after publication, 

except for 46 CFR 541.6 and 541.99.3

The effective date of those two 

provisions was delayed pending 

approval of the associated Collection of 

Information by the Office of 

Management and Budget (OMB) as the 

Paperwork Reduction Act requires OMB 

to approve collections of information 

before an agency can enforce collection 

requirements.4

On May 9, 2024, the Commission 

issued a Correction to the preamble, 89 

FR 39569. At page 14336 in the 

preamble to the February 26, 2024, final 

rule, the Commission responded to a 

comment requesting that the FMC revise 

the definition of ‘‘billed party’’ to 

address situations in which vesseloperating common carriers (VOCCs) 

enter into written contracts with motor 

carriers that use containers in the 

transportation of goods. The 

Commission responded by declining to 

adopt this proposed change. The 

supporting discussion explaining why 

the request was denied was intended to 

explain that the rule only addresses 

carrier-trucker relationships on through 


lotter on DSK11XQN23PROD with PROPOSALS1
77788 Federal Register / Vol. 89, No. 185 / Tuesday, September 24, 2024 / Proposed Rules 

5 89 FR 41895 (When processing the document, 

the Office of the Federal Register incorrectly 

specified the effective date in the DATES section. As 

a result, the DATES section read that the ‘‘correction 

is effective May 14, 2024’’, even though the body 

of the document itself correctly stated that the 

provisions would be effective May 28, 2024. The 

Office of the Federal Register issued a correction on 

May 24, 2024, 89 FR 45772, stating that the DATES

section should have read that the rule was effective 

on May 28, 2024. The Commission did not receive 

any questions from the public concerning this 

error.). 

6 89 FR 14330. 

7 46 CFR 502.51(a) and 502.115. 

8 46 CFR 502.21(a). 

9 89 FR 48865. 

10See, e.g., Clean Air Council v. Pruitt, 862 F.3d 

1 (D.C. Cir. 2017) (‘‘EPA’s stay, in other words, is 

essentially an order delaying the rule’s effective 

date, and this court has held that such orders are 

tantamount to amending or revoking a rule.’’); see 

also FCC v. Fox Television Stations, Inc., 556 U.S. 

502 (2009) (‘‘The [APA] makes no distinction, 

however, between initial agency action and 

subsequent agency action undoing or revising that 

action.’’). 

11E.g., Nat. Res. Def. Council v. Nat’l Highway 

Traffic Safety Admin., 894 F.3d 95, 113 (2d Cir. 

2018) (‘‘Under the APA, before promulgating a rule 

an agency must publish ‘[g]eneral notice of 

proposed rule making . . . in the Federal Register,’ 

as well as ‘an opportunity to participate in the rule 

making through submission of written data, views, 

or arguments.’ These requirements apply with the 

same force when an agency seeks to delay or repeal 

a previously promulgated final rule. A basic 

principle of administrative law is that ‘an agency 

issuing a legislative rule is itself bound by the rule 

until that rule is amended or revoked.’ Similarly an 

agency ‘‘may not alter such a rule without notice 

and comment,’’ nor does the agency have any 

inherent power to stay a final rule . . . A significant 

body of authority reinforces this proposition.’’ 

citations omitted); NRDC v. EPA, 683 F.2d 752, 

761–62 (3d Cir. 1982) (‘‘[S]uspension or delayed 

implementation of a final regulation normally 

constitutes substantive rulemaking under APA 

§ 553.’’); See also FCC v. Fox Television Stations, 

Inc., 556 U.S. 502, 515 (2009) (‘‘The [APA] makes 

no distinction . . . between initial agency action 

and subsequent agency action undoing or revising 

that action.’’). 

12Ctr. for Biological Diversity v. Regan, 691 F. 

Supp. 3d 1, 8 (D.D.C. 2023), judgment entered, No. 

CV 21–119 (RDM), 2024 WL 1591671 (D.D.C. Apr. 

12, 2024) (‘‘The Court has also previously 

suggested—and now holds—that section 705 

permits an agency to ‘postpone the effective date’ 

of a rule that has not yet taken effect, but does not 

permit an agency to suspend, without notice and 

comment, a rule that is already in effect. As the 

Court explained in CBD I, that understanding of 

Section 705 comports with: (1) the D.C. Circuit’s 

non-precedential decision in Safety-Kleen Corp. v. 

EPA, 1996 U.S. App. LEXIS 2324, at 2–3 (D.C. Cir. 

Jan. 19, 1996); (2) the usual APA rule, which 

‘mandate[s] that agencies use the same procedures 

when they amend or repeal a rule as they used to 

issue the rule in the first instance;’ and (3) the plain 

language of Section 705, which does not grant 

agencies the same broad equitable authority vested 

in courts but, rather, merely permits agencies to 

‘postpone’—that is, ‘put off for a later time’—agency 

action that is subject to judicial review. CBD I, 597 

F. Supp. 3d at 204–05 (first quoting Perez v. Mortg. 

Bankers Ass’n, 575 U.S. 92, 101, 135 S.Ct. 1199, 191 

L.Ed. 2d 186 (2015); and then quoting Postpone, 

Merriam-Webster Dictionary Online, https://

www.merriam-webster.com/dictionary/postpone 

(last visited Mar. 28, 2022)) . . . Court now holds 

that an agency’s authority to ‘postpone the effective 

date’ of a rule ends when the rule takes legal 

effect.’’). 

bills of lading. The Commission meant 

this to be understood in the context of 

its statement in the final rule that ‘‘the 

FMC’s jurisdiction, and thus this rule, 

would apply only to cargo moved 

inland under a through bill of lading 

and contracts between a VOCC [and] a 

motor carrier not based on a through bill 

of lading would likely be outside the 

scope of this rule.’’ The Correction 

amended the preamble accordingly. The 

Correction did not amend any of the 

regulatory text of the final rule. 

On May 14, 2024, following approval 

of the Collection of Information by 

OMB, the Commission announced in 

the Federal Register that 46 CFR 541.6 

and 541.99 would become effective on 

May 28, 2024, the same date as the other 

provisions of the rule.5

II. Petition for Delayed Effective Date 

On May 28, 2024, the date the final 

rule went into effect, the Commission 

accepted for filing a petition from 

OCEMA requesting an extension of the 

effective date of the rule by at least 90 

days.6 Petitioner argues that the 

requested extension is necessary ‘‘to 

allow time for stakeholders to revise 

their practices based on the revised 

guidance provided in the [May 9, 2024] 

Correction and to address questions 

raised by the Correction.’’ Petitioner 

asserts that ‘‘as a result of an apparent 

reversal in the FMC’s position with 

regard to the assessment of detention 

and demurrage to motor carriers, VOCCs 

are now put in a position of needing to 

unwind and/or further revise the 

arrangements they made based on the 

FMC’s previous guidance.’’ OCEMA 

claims that as a result of the Correction, 

VOCCs only had 19 days to prepare to 

come into compliance with the rule and 

that they need more time. It further 

asserts that the Correction did not fully 

clarify the FMC’s position with respect 

to invoicing motor carriers and that 

additional time is needed to understand 

the rule’s requirements. 

III. Responses and Public Comment to 

the Petition 

A petitioner seeking the amendment 

or repeal of an FMC rule must provide 

proof of service on all persons named 

in/that participated in such a rule,7 and 

those served have the opportunity to 

respond.8 OCEMA provided such proof 

of service. No replies were filed. 

On June 10, 2024, the Commission 

published a notice of filing of the 

petition in the Federal Register and 

solicited comments from the interested 

public.9 The comment period closed on 

July 1, 2024. Seventeen comments were 

submitted. Sixteen of the commenters 

said that the petition should be denied. 

One commenter, the National Customs 

Brokers and Forwarders Association of 

America (FMC–2024–0010–0018), 

proposed that, rather than an extension, 

the FMC should implement an interim 

period of ‘‘informed compliance,’’ 

which would allow all ocean industry 

stakeholders to work toward full 

compliance and assess the practical 

applications of these new demurrage 

and detention billing requirements. The 

association noted that such ‘‘informed 

compliance’’ period would mirror U.S. 

Customs and Boarder Protection 

practice with respect to new Customs 

regulations. Commenters supporting 

denial of the petition cited concerns 

about an extension leading to massive 

confusion and a high administrative 

burden given that the rule has already 

gone into effect. Some commenters also 

said that an extension is not necessary 

because carriers are already complying 

with the rule. 

IV. Analysis 

Delay of an effective date of a rule is 

itself a substantive rulemaking action 

that is subject to the requirements of 5 

U.S.C. 553 of the Administrative 

Procedure Act.10 This includes the 

requirement that an agency must engage 

in the notice and comment process in 

accordance with 5 U.S.C. 553(b)(B) prior 

to delaying a rule’s effective date unless 

it finds good cause not to do so.11

Section 705 of the Administrative 

Procedure Act permits an agency to 

‘‘postpone the effective date’’ of a rule, 

without providing notice-and-comment, 

if the agency ‘‘finds that justice so 

requires.’’ However, 5 U.S.C. 705 does 

not permit an agency to suspend, 

without notice-and-comment, a rule that 

is already in effect.12

After thorough review of the petition 

requesting that the Demurrage and 

Detention Billing Requirements final 

rule’s effective date be delayed, the 

Commission denies the petition for the 

following reasons. 

1. Delaying the effective date of the 

Demurrage and Detention Billing 

Requirements final rule, as requested by 

the Petitioner, would directly impede 

the explicit instructions of Congress. 

OSRA 2022 mandated that the 

Commission issue a final rule ‘‘further 

defining prohibited practices by 

common carriers, marine terminal 

operators, shippers, and ocean 

transportation intermediaries under [46 

U.S.C. 41102(c)] regarding the 

assessment of demurrage or detention 

charges . . . not later than [June 16, 

2023].’’ Despite best efforts, the 


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Federal Register / Vol. 89, No. 185 / Tuesday, September 24, 2024 / Proposed Rules 77789 

13 293 F. Supp. 3d 1050, 1060 (N.D. Cal. 2018) 

(‘‘The clear purpose of the Act and the plain 

meaning of its core provisions was to set 

expeditious emission compliance standards (not to 

exceed 180 days past the promulgation of 

implementing regulations) and to allow the sell off 

or use of preexisting noncompliant inventory but to 

prohibit stockpiling. This clear purpose and plain 

meaning cannot be reconciled with the EPA’s 

suggestion that a year-long extension of the 

designated date of manufacture in the sell-through 

provisions permissibly leads to a commensurate 

year-long extension of the mandatory compliance 

deadlines. The EPA’s interpretation creates 

inconsistency within the full text of the Act, 

renders the 180-day compliance deadline 

superfluous, leads to the absurd result of permitting 

the perpetual delay of the effectiveness of the 

Formaldehyde Rule, and fails to satisfy the stated 

purpose of the Act.’’); cf. Pennsylvania v. DeVos, 

480 F. Supp. 3d 47, 66 (D.D.C. 2020) (‘‘And ‘when 

the statute authorizing agency action fails to specify 

a timetable for effectiveness of decisions, the agency 

normally retains considerable discretion to choose 

an effective date.’ ’’ (internal citations omitted). 

14Texas Children’s Hosp. v. Azar, 315 F. Supp. 

3d 322, 334 (D.D.C. 2018). 

15 Id. (citations omitted). 

16E.g., comments of the Shippers Coalition 

(FMC–2024–0010–0001), ContainerPort Group Inc. 

(FMC–2024–0010–0002), Agriculture 

Transportation Coalition (FMC–2024–0010–0011), 

Intermodal Motor Carriers Conference (FMC–2024– 

0010–0012). 

Commission was unable to issue the 

Demurrage and Detention Billing 

Requirements final rule until February 

26, 2024. This was in large part because 

the agency needed the time, as required 

by the Administrative Procedure Act, to 

carefully analyze and respond to the 191 

public comments submitted on the 

proposed rule. In the interest of fairness, 

based on those public comments, the 

agency granted an additional 60 days 

beyond the required 30-day period 

before the final rule became effective, 

with the final rule having an effective 

date of May 28, 2024. Granting the 

Petitioner’s request—which was not 

effectively filed with the Commission 

until the day the rule went into effect— 

would result in pushing the rule’s 

effective date even further beyond the 

explicit statutory deadline. Federal 

Register documents would need to be 

drafted, and comments analyzed and 

responded to. If, after analyzing 

comments on a notice of proposed 

rulemaking, the agency was to move 

forward with a final rule to temporarily 

delay the effective date, the final, 

permanent effective date of the rule 

would most likely be at least two years 

past the specified Congressional 

deadline. Courts have found that 

granting significant extensions to rules 

in direct contradiction to clear statutory 

deadlines is ‘‘in excess of statutory 

jurisdiction, authority, or limitations, or 

short of statutory right,’’ under 5 U.S.C. 

706(2)(C). For example, in Sierra Club v. 

Pruitt, the court found that the 

Environmental Protection Agency 

violated the Formaldehyde Act by 

extending a rule’s compliance deadline 

well beyond the deadline set out in the 

statute.13

2. Petitioner asserts that the 

Correction created confusion about what 

the rule requires of regulated parties, 

but that claim is unpersuasive. While 

the Commission acknowledged in the 

Correction that the original preamble 

language was potentially ‘‘ambiguous’’, 

the Correction was not a ‘‘reversal’’ of 

position. The Correction was for the 

preamble language only; it did not 

change any of the regulatory text. The 

regulatory text is clear and 

unambiguous: ‘‘A properly issued 

invoice is a demurrage or detention 

invoice issued by a billing party to: (1) 

The person for whose account the 

billing party provided ocean 

transportation or storage of cargo and 

who contracted with the billing party 

for the ocean transportation or storage of 

cargo; or (2) the consignee.’’ 46 CFR 

541.4(a). A rule’s preamble cannot be 

used to create ambiguity and contradict 

regulatory text.14 As summarized by the 

U.S. District Court for the District of 

Columbia in Texas Children’s Hosp. v. 

Azar: ‘‘To be clear, the preamble to a 

statute or rule may be used to help 

inform the proper interpretation of an 

ambiguous text. The preamble cannot, 

however, be used to contradict the text 

of the statute or rule at issue.’’ 15

Furthermore, the comments submitted 

in response to this petition are 

counterweights to Petitioner’s claims. 

Sixteen of the seventeen comments that 

were submitted in response to the 

Federal Register notice of the filing 

petition argued that the petition should 

be denied and that billing parties are 

largely in compliance with the rule. 

3. Granting the requested delay would 

lead to greater confusion in the 

regulated community than what the 

Petitioner claims was caused by the 

Correction. Because the rule would have 

to continue in effect until such time as 

a delay could be effectuated by 

rulemaking, the rule would be in effect 

at least six months, then be temporarily 

stayed, and then go back into effect. As 

commenters discussed in their 

submissions, this has the potential for 

massive disruption and confusion, as 

billing parties switch between systems, 

and would likely raise questions about 

what rules apply to any given 

transaction.16

4. By the time such a delay could take 

effect, after completion of the required 

administrative procedures, the 

Petitioner’s justification for delay would 

no longer be present, as the Petitioner 

would have had ample time to make any 

necessary adjustments to their practices. 

V. Conclusion 

For the reasons explained above, the 

Commission denies the petition filed by 

the Ocean Carrier Equipment 

Management Association for a delay of 

the effective date of the Demurrage and 

Detention Billing Requirements final 

rule. 

By the Commission. 

David Eng, 

Secretary. 

[FR Doc. 2024–21586 Filed 9–23–24; 8:45 am] 

BILLING CODE 6730–02–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 240911–0235] 

RIN 0648–BM91 

Marine Mammal Protection Act List of 

Fisheries for 2025 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comment. 

SUMMARY: NMFS is publishing its 

proposed List of Fisheries (LOF) for 

2025, as required by the Marine 

Mammal Protection Act (MMPA). The 

proposed LOF for 2025 reflects new 

information on interactions between 

commercial fisheries and marine 

mammals. NMFS must classify each 

commercial fishery on the LOF into one 

of three categories under the MMPA 

based on the level of mortality and 

serious injury (M/SI) of marine 

mammals that occurs incidental to each 

fishery. The classification of a fishery on 

the LOF determines whether 

participants in that fishery are subject to 

certain provisions of the MMPA, such as 

those regarding registration, observer 

coverage, and take reduction plan (TRP) 

requirements. 

DATES: Comments must be received by 

October 24, 2024. 

ADDRESSES: A plain language summary 

of this proposed rule is available at 

https://www.regulations.gov/docket/ 

NOAA-NMFS-2024-0037. You may 

submit comments on this document, 

identified by NOAA–NMFS–2024–0037, 

by either of the following methods: 

Electronic Submission: Submit all 

electronic public comments via the 


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