[Federal Register Volume 67, Number 139 (Friday, July 19, 2002)]
[Rules and Regulations]
[Pages 47464-47466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18345]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Part 401

[USCG-2002-12840]
RIN 2115-AG46


Basic Rates and Charges on Lake Erie and the Navigable Waters 
From Southeast Shoal to Port Huron, MI

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule; request for comments.

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SUMMARY: This temporary final rule amends the rates charged for Great 
Lakes pilotage on the Designated Waters of Area 5 in District Two and 
restores them to those effective before August 13, 2001. The Lake 
Pilots Association, representing pilots in District Two, challenged the 
ratemaking effective on and after that date, and sued. The Coast Guard, 
while not agreeing with the allegations in the complaint, did learn 
during the course of litigation that it had inadvertently accounted for 
hours of delay and detention in District Two differently from how it 
was done in Districts One and Three. The Coast Guard is currently 
working on an updated ratemaking that will, among other things, correct 
this error. In the interim, it is considered in the best interest of 
the public to temporarily return the rates (in District Two, Area 5) to 
those effective prior to August 13, 2001. This temporary final rule 
will not be retroactive and future rates will not be adjusted as a 
result of this action.

DATES: This temporary final rule is effective from July 19, 2002, to 
July 21, 2003. Comments and related material must reach the Docket 
Management Facility on or before September 17, 2002.

ADDRESSES: To make sure your comments and related material are not 
entered more than once in the docket [USCG-2002-12840], please submit 
them by only one of the following means:
    (1) By mail to the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 
20590-0001.
    (2) By delivery to room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (3) By fax to the Facility at 202-493-2251.
    (4) Electronically through the Web Site for the Docket Management 
System at http://dms.dot.gov.
    You must also mail comments on collection of information to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, 
U.S. Coast Guard.
    The Docket Management Facility maintains the public docket for this 
temporary rule. Comments and material received from the public, as well 
as documents mentioned in this preamble as being available in the 
docket, will become part of this docket and will be available for 
inspection or copying at room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. You may also find 
this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary final rule, call Paul Wasserman, Office of Maritime and 
International Law, Commandant (G-LMI), U.S. Coast Guard, telephone 202-
267-0093. If you have questions on viewing or submitting material to 
the docket, call Dorothy Beard, Chief, Dockets, Department of 
Transportation, at 202-366-5149.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this temporary rulemaking by 
submitting comments and related material. If you do so, please include 
your name and address, identify the docket number for this temporary 
rule [USCG-2002-12840], indicate the specific section of this document 
to which each comment applies, and give the reason for each comment. 
You may submit your comments and material by mail, delivery, fax, or 
electronic means to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know they reached the Facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
temporary final rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
temporary final rule, and it takes effect immediately. Delay in 
implementing this rule would be contrary to the public interest. In 
2001, the Coast Guard amended existing ratemaking requirements for 
Great Lakes Pilotage and inadvertently accounted for hours of delay and 
detention in District Two in a manner different from Districts One and 
Three. Due to the impact on and disparate treatment among the 
districts, it is necessary to immediately correct this situation. This 
rule simply, and temporarily, restores the rates that were effective 
before the amendment, while we further evaluate the situation. 
Therefore, the Coast Guard finds under 5 U.S.C. 553(b)(B) and (d)(3), 
respectively, that neither notice-and-comment rulemaking nor 30 days' 
notice of effective date is required.

Background and Purpose

    On July 12, 2001, the Coast Guard published a final rule in the 
Federal Register [66 FR 36484] amending the ratemaking for the Great 
Lakes Pilotage. The new rates became effective August 13, 2001. They 
were challenged in court by the Lake Pilots Association, representing 
the pilots in District Two, Lake Erie. While preparing our defense, we 
discovered that we had inadvertently accounted for hours of delay and 
detention in District Two differently from how we had in Districts One 
and Three. We also noticed minor errors in computing the rates in 
District Two. We are undertaking a study to address, among other 
things, the issue of how we should count hours of delay and detention 
when computing bridge-hours in all three Districts.

Discussion of Temporary Final Rule

    While not agreeing with the allegations contained in the complaint 
of the Lake Pilots Association, for the reasons stated, the Coast Guard 
agreed to the relief sought in the lawsuit and

[[Page 47465]]

is temporarily restoring the rates that were effective before August 
13, 2001. The Coast Guard believes that this measure is in the best 
interest of the public. This measure will mitigate the effects, if any, 
of the Coast Guard's disparate treatment of the pilots in District Two, 
when accounting for hours of delay and detention. It should be noted, 
however, that this temporary final rule will not be retroactive and 
future rates will not be adjusted as a result of this action. 
Simultaneously, it is anticipated that this measure will resolve the 
lawsuit initiated by those pilots and so enable the Coast Guard to 
concentrate its efforts on addressing the system-wide concerns raised 
by the public with the input of all parties affected by rates for 
pilotage. During the effective period of this temporary final rule, we 
will devote our energy to promulgating a new ratemaking.

Regulatory Evaluation

    This temporary final rule is not a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of that Order. It is not 
``significant'' under the regulatory policies and procedures of the 
Department of Transportation (DOT) [44 FR 11040 (February 26, 1979)].
    Because the rates are being restored to already-approved rates, the 
Coast Guard expects the economic impact of this rule to be so minimal 
that a full Regulatory Assessment under paragraph 10e of the regulatory 
policies and procedures of DOT is unnecessary. However, a detailed 
Regulatory Assessment is available in the docket from the rulemaking 
that established those previous rates [Saint Lawrence Seaway 
Development Corporation (RIN 2135-AA08)].

Small Entities

    Under the Regulatory Flexibility Act [5 U.S.C. 601-612], we have 
considered whether this temporary final rule would have a significant 
economic impact on a substantial number of small entities. The term 
``small entities'' comprises small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. For the reasons stated under 
Regulatory Information and because this rule does not affect small 
entities, it was not preceded by an NPRM and therefore is exempt from 
the requirements of the Regulatory Flexibility Act. Although it is 
exempt, we have reviewed it for potential economic impact on small 
entities.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this rule will not have a significant economic impact on a substantial 
number of small entities. If you think that your business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this rule will have a significant economic impact on it, 
please submit a comment to the Docket Management Facility at the 
address under ADDRESSES. In your comment, explain why you think it 
qualifies and how and to what degree this rule will economically affect 
it.

Assistance for Small Entities

    Small businesses may send, to the Small Business and Agriculture 
Regulatory Enforcement Ombudsman and the Regional Small Business 
Regulatory Fairness Boards, comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations. The Ombudsman evaluates these actions annually and rates 
each agency's responsiveness to small business. If you wish to comment 
on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-
734-3247).

Collection of Information

    This temporary final rule calls for no new collection of 
information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-
3520].

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this temporary 
final rule under that Order and have determined that it does not have 
implications for federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 [2 U.S.C. 1531-1538] 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Although this temporary final rule will not result in such an 
expenditure, the effects of this rule are discussed elsewhere in this 
preamble.

Taking of Private Property

    This temporary rule will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Civil Justice Reform

    This temporary final rule meets applicable standards in sections 
3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to 
minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this temporary final rule under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. This rule is not an economically significant rule and 
does not create an environmental risk to health or risk to safety that 
may disproportionately affect children.

Indian Tribal Governments

    This temporary final rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it does not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.
    To help the Coast Guard establish regular and meaningful 
consultation and collaboration with Indian and Alaskan Native tribes, 
we published a notice in the Federal Register [66 FR 36361 (July 11, 
2001)] requesting comments on how to best carry out the Order. We 
invite your comments on how this rule might affect tribal governments, 
even if the effect may not constitute a ``tribal implication'' under 
the Order.

Energy Effects

    We have analyzed this temporary final rule under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use. We have determined that it is not a 
``significant energy action'' under that Order because it is not a 
``significant regulatory action'' under Executive Order 12866 and is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. It has not been designated by the 
Administrator of the Office of Information and Regulatory Affairs a 
significant energy action. Therefore, it

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does not require a Statement of Energy Effects under Executive Order 
13211.

Environment

    We have considered the environmental impact of this temporary final 
rule and concluded that under figure 2-1, paragraph (34)(a), of 
Commandant Instruction M16475.lD, this rule is categorically excluded 
from further environmental documentation. This rule amends the rates 
charged for Great Lakes pilotage, restoring them to the rates 
previously in effect. It is procedural in nature and therefore is 
categorically excluded. A Determination of Categorical Exclusion is 
available in the docket where indicated under ADDRESSES.

List of Subjects in 46 CFR Part 401

    Administrative practice and procedure; Great Lakes; Navigation 
(water); Penalties; Reporting and recordkeeping requirements; Seamen.

    For reasons discussed in the preamble, the Coast Guard temporarily 
amends 46 CFR part 401 as follows:

PART 401--GREAT LAKES PILOTAGE REGULATIONS

    1. The authority citation for part 401 continues to read as 
follows:

    Authority: 46 U.S.C. 2104(a), 6101, 7701, 8105, 9303, 9304; 49 
CFR 1.45, 1.46 (mmm); 46 CFR 401.105 also issued under the authority 
of 44 U.S.C. 3507.

    2. In Sec. 401.407, suspend paragraph (b) and temporarily add 
paragraph (c) to read as follows:


Sec. 401.407  Basic rates and charges on Lake Erie and the navigable 
waters from Southeast Shoal to Port Huron, MI.

* * * * *
    (c) Area 5 (Designated Waters):

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                                                   Toledo or any
                                                   point on Lake
       Any point on or in:           Southeast     Erie west of    Detroit river   Detroit pilot     St. Clair
                                       Shoal         Southeast                         boat            river
                                                       Shoal
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Toledo or any port on Lake Erie             $988            $583          $1,282            $988             N/A
 west of Southeast Shoal........
Port Huron Change Point.........       \1\ 1,720       \1\ 1,993           1,293           1,005            $715
St. Clair River.................       \1\ 1,720             N/A           1,293           1,293             583
Detroit or Windsor Or the                    988           1,282             583             N/A           1,293
 Detroit River..................
Detroit Pilot Boat..............             715             988             N/A             N/A          1,293
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\1\ When pilots are not changed at the Detroit pilot boat.


    Dated: July 12, 2002.
Paul J. Pluta,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, 
Security and Environmental Protection.
[FR Doc. 02-18345 Filed 7-17-02; 10:29 am]
BILLING CODE 4910-15-P