[Federal Register Volume 68, Number 141 (Wednesday, July 23, 2003)]
[Rules and Regulations]
[Pages 43470-43472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18759]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 401

[USCG-2002-12840]
RIN 1625-AA74 (Formerly 2115-AG46)


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; change of effective period.

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SUMMARY: The Coast Guard is extending the effective period for the 
temporary final rule on basic rates and charges on Lake Erie and the 
navigable waters from Southwest Shoal to Port Huron, MI (District Two, 
Area 5), to December 24, 2003. Extension of the effective period 
ensures that the pilotage rates in District Two, Area 5, remain at the 
current rate while the Coast Guard completes its pending ratemaking 
project.

DATES: Effective July 18, 2003, Sec.  401.407(b), suspended at 67 FR 
47466, July 19, 2002, effective July 19, 2002, until July 21, 2003, 
will continue to be suspended through December 24, 2003; and Sec.  
401.407(c), temporarily added at 67 FR 47466, July 19, 2002, effective 
July 19, 2002, until July 21, 2003, will continue to be extended 
through December 24, 2003.

ADDRESSES: The Docket Management Facility maintains the public docket 
for this rulemaking. 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 rule, 
call Tom Lawler, Project Manager, Office of Great Lakes Pilotage, Coast 
Guard, Commandant (G-MW-1), at 202-267-1241. If you have questions on 
viewing to the docket, call Dorothy Beard, Chief, Dockets, Department 
of Transportation, at 202-366-5149.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On July 19, 2002, we published a temporary final rule entitled 
``Basic Rates and Charges on Lake Erie and the Navigable Waters From 
Southeast Shoal to Port Huron, MI'' in the Federal Register [67 FR 
47464].

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. Those 
rates were challenged in District Court by the Lake Pilots Association, 
representing the pilots in District Two. While preparing our defense, 
we discovered that we had inadvertently accounted for delay and 
detention hours 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. The Coast Guard has recently completed a study 
that addresses, among other things, the issue of how we should count 
hours of delay and detention when computing bridge-hours in all three 
Districts. Also the Coast Guard is currently in the process of 
adjusting the pilotage rates in all three Districts. See [USCG-2002-
11288].

Discussion of Temporary Rule

    We did not publish a notice of proposed rulemaking (NPRM) in order 
to extend this temporary final rule, and it takes effect immediately. 
Delay in implementing this rule would be contrary to the public 
interest. This rulemaking will maintain the status quo allowing 
litigation and associated rulemaking to be completed.
    While not agreeing with the allegations contained in the complaint 
of the Lakes Pilots' Association, for the

[[Page 43471]]

reasons stated, the Coast Guard agreed to the relief sought in the 
lawsuit and temporarily restored the rates that were effective in Area 
5 before August 13, 2001. The Coast Guard believes that this measure 
was in the best interest of the public, and mitigated 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. These reasons 
remain just as valid today as they were when the temporary final rule 
was first published. The Coast Guard sees no benefit to restoring the 
2001 rates in Area 5. 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.
    After the Coast Guard took this action, the District Court issued 
its ruling in the Lake Pilots Association lawsuit granting partial 
summary judgment for each side. The Court's decision was made 
considering a number of factors, including the Coast Guard's action 
with regard to the pilotage rates in Area 5. The Lake Pilots 
Association has appealed the District Court decision. Maintaining the 
current rates in Area 5 while the appeal is pending will facilitate the 
appellate process.
    In addition, the Coast Guard has proposed new pilotage rates for 
all three Districts, including Area 5 of District Two. Maintaining the 
current Area 5 rates while that ratemaking project is completed will 
enable the Coast Guard to devote its scarce resources to establishing 
new rates for all areas, rather than engaging in a separate rulemaking 
just for Area 5. We will therefore continue to devote our energy to 
promulgating an interim rule and/or final rule updating the pilotage 
rates on the Great Lakes rather than start a separate rulemaking for 
Area 5.

Regulatory Evaluation

    This 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 has been reviewed by the Office of Management 
and Budget under that Order. It is not ``significant'' under the 
regulatory policies and procedures of Department of Homeland Security 
(DHS).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Assessment under the regulatory policies and procedures 
of the DHS is unnecessary; however, a Regulatory Assessment has been 
prepared and may be viewed in the docket for this project.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this 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. 
This rule was not preceded by an NPRM and therefore is exempt from the 
requirements of the Regulatory Flexibility Act. Although this rule 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.

Assistance for Small Entities

    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. 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 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. Though this rule will not result in such an expenditure, the 
effects of this rule are discussed elsewhere in this preamble.

Taking of Private Property

    This 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 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 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 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 impact tribal governments, 
even if that impact may not constitute a ``tribal implication'' under 
the Order.

Energy Effects

    We have analyzed this 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

[[Page 43472]]

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 as a 
significant energy action. Therefore, it does not require a Statement 
of Energy Effects under Executive Order 13211.

Environment

    We have analyzed this temporary final rule under Commandant 
Instruction M16475.1D, which guides the Coast Guard in complying with 
the National Environmental Policy Act of 1969 (NEPA) [42 U.S.C. 4321-
4370f], and have concluded that there are no factors in this case that 
would limit the use of a categorical exclusion under section 2.B.2 of 
the Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(a), of the Instruction, from further 
environmental documentation. An ``Environmental Analysis Check List'' 
and a ``Categorical Exclusion Determination'' are available in the 
docket where indicated under the section of this preamble on ``Public 
Participation and Request for Comments''. We will consider comments on 
this section before we make the final decision on whether this rule 
should be categorically excluded from further environmental review.

List of Subjects in 46 CFR Part 401

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

0
For reasons discussed in the preamble, the Coast Guard amends 46 CFR 
part 401 as follows:

PART 401--GREAT LAKES PILOTAGE REGULATIONS

0
1. Revise the authority citation for part 401 to read as follows:

    Authority: 46 U.S.C. 2104(a), 6101, 7701, 8105, 9303, 9304; 
Department of Homeland Security Delegation No. 0170.1; 46 CFR 
401.105 also issued under the authority of 44 U.S.C. 3507.


0
2. In Sec.  401.407, paragraph (b), which was suspended at 67 FR 47464, 
July 19, 2002, from July 19, 2002, until July 21, 2003, will continue 
to be suspended through December 24, 2003; and paragraph (c), 
temporarily added at 67 FR 47464, July 19, 2002, from July 19, 2002, 
until July 21, 2003, will continue to be extended through December 24, 
2003.

    Dated: July 18, 2003.
T.H. Gilmour,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, 
Security and Environmental Protection.
[FR Doc. 03-18759 Filed 7-18-03; 4:27 pm]
BILLING CODE 4910-15-P