[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Rules and Regulations]
[Pages 63444-63450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30081]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 1
[OST Docket No. 1; Amendment 1-272]
Organization and Delegation of Powers and Duties; Transfer of
Great Lakes Pilotage Authority From the Coast Guard to the Saint
Lawrence Seaway Development Corporation
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard's responsibility for administering the
Secretary's functions under the Great Lakes Pilotage Act of 1960, as
amended, and the Secretary's authority to enter into, revise, or amend
arrangements with Canada, are being transferred to the Saint Lawrence
Seaway Development Corporation. This rule affirms the interim final
rule amending the delegations to be in accordance with the changed
responsibilities. Although a comment period for the Secretary's
delegations is not required by the Administrative Procedure Act, the
Department of Transportation requested public comment on the interim
final rule because of public and Congressional interest in Great Lakes
Pilotage. This final rule responds to the comments and is necessary to
inform the public that the interim final rule has been affirmed.
DATES: This rule is effective on December 11, 1995.
FOR FURTHER INFORMATION CONTACT: Steven B. Farbman, Office of the
Assistant General Counsel for Regulation and Enforcement (202) 366-
9306, United States Department of Transportation, 400 7th Street SW.,
Washington, DC 20590.
REGULATORY HISTORY: On July 31, 1995, the Department of Transportation
(Department) published an interim final rule with request for comments
(60 FR 38971). The interim final rule contained language that would
transfer Great Lakes Pilotage authority from the Coast Guard to the St.
Lawrence Seaway Development Corporation (SLSDC). The comment period for
the interim final rule ended on September 29, 1995, and was to become
effective October 30, 1995. On October 27, 1995, the Department issued
a rule suspending the effectiveness of the interim final rule. This
final rule affirms the interim final rule and establishes a new
effective date.
SUPPLEMENTARY INFORMATION: The Coast Guard's responsibility for
administering the Secretary's functions under the Great Lakes Pilotage
Act of 1960, as amended, (the Act) is being transferred to the SLSDC.
This rule amends the delegations and enabling regulations to be in
accordance with the changed responsibilities. The functions that are
being transferred are: (1) Investigation and prosecution of violations
of the Act; (2) registration, qualification, and training of registered
pilots; (3) association working rules and dispatching procedures; (4)
pilot working conditions; (5) selection of pilots; (6) number of
pilots; (7) availability of pilots; (8) number of pilotage pools; (9)
articles of association; (10) auditing; and (11) ratemaking. The
licensing of pilots and the investigation and prosecution of marine
accidents and incidents are essential Coast Guard safety functions that
are separate from the Act and Great Lakes Pilotage Regulations. These
functions will remain with the Coast Guard.
Transfer of pilotage responsibilities to the SLSDC will place
pilotage under permanent civilian authority, and placing pilotage in a
smaller organization with an established presence on the Great Lakes
will give pilotage issues greater visibility and more timely attention.
In addition, the SLSDC is being given authority to negotiate directly
with Canada, which will allow timely adjustments to pilotage rates. The
lack of timely adjustments has been a subject of past pilot criticism.
The Secretary's authority to enter into, revise, or amend
arrangements with Canada is being delegated to the SLSDC Administrator
in coordination with the General Counsel of the Department. A
Memorandum of Arrangements between the United States and Canada, last
renegotiated in 1977, states that the Secretary and the Minister of
Transport of Canada ``will arrange for the establishment of regulations
imposing identical rates, charges, and any other conditions or terms
for services of pilots in the waters of the Great Lakes. * * *.'' In
1983, the Act was amended to provide that the ``Secretary, subject to
the concurrence of the Secretary of State, may make agreements with the
appropriate agency of Canada to * * * prescribe joint or identical
rates and charges .''
Discussion of Comments and Changes
The Department received comments from well over 100 commenters
regarding the transfer of Great Lakes Pilotage oversight from the Coast
Guard to the SLSDC. Comments on the interim final rule were received
from Federal and State legislators, pilot associations
[[Page 63445]]
and their employees, individual pilots, professional maritime
organizations, shipping associations, port authorities, labor
organizations, marine service companies, an environmental group, one
State regulatory agency, and interested members of the public.
The interim final rule was supported in comments from Members of
Congress, individual members of the public, port authorities, labor
organizations, professional maritime organizations, pilot
organizations, pilots, a pilot association and its employees, and
marine service companies. Among the organizations supporting the rule
is the owner and operator of one of the largest fleet of Great Lakes-
dedicated deep sea ships; this organization is also one of the largest
consumers of pilotage services in the St. Lawrence Seaway system. Also
in support of the rule was the Association of Great Lakes Ports,
representing the public port authorities of Green Bay, Milwaukee,
Chicago, Burns Harbor, Detroit, Monroe, Toledo, Cleveland, Erie,
Ogdensburg, Superior, and Oswego. Comments in support of the transfer
of delegation also came from the International Longshoremen's
Association (ILA) and individual ports, representing approximately
95,000 members and associated parties. A subgroup of the ILA,
representing approximately 10,000 members, the International
Organization of Masters, Mates and Pilots, is in favor of transferring
delegation from the Coast Guard, but want it moved to an
``Undersecretary'' in the Department. Of the three Great Lakes pilot
associations, District 2 favors the transfer to SLSDC. As of the close
of the comment period, there were 12 pilots in District 2.
Those in favor gave the following reasons in support of the
transfer of delegation: (1) the SLSDC is a smaller organization than
the Coast Guard, and it can significantly reduce the amount of ``red
tape'' associated with pilotage oversight; (2) the SLSDC is a civilian
agency, and it can guarantee a civilian Director of Great Lakes
Pilotage with better continuity than a military Director; (3) the
SLSDC's focus is on the Great Lakes; (4) pilotage issues would receive
more attention from the Administrator of the SLSDC and the Secretary of
Transportation; and (5) the SLSDC's interaction with all elements of
the Great Lakes community would give the pilots significant new
contacts with their customer base.
The interim final rule was opposed in comments from Members of
Congress and State legislators, pilot associations and their employees,
individual pilots, professional maritime organizations, shipping
associations, an environmental group, one State regulatory agency, and
interested members of the public. Among the organizations opposed to
the transfer are the American Pilots Association, Save The River, Inc.,
Lake Carriers' Association, and the Association of International Ship
Masters, which represents about 3,000 to 5,000 members. Of the three
Great Lakes pilot associations, Districts 1 and 3 oppose the transfer.
As of the close of the comment period, there were 9 pilots in District
1 and 19 pilots in District 3.
Those objecting to the transfer of authority did so for the
following reasons: (1) The SLSDC is primarily concerned with economic
and financial issues, and, because of this focus, it will sacrifice
safety by reducing American pilotage jobs and pay, increasing hours of
service, or taking other actions that will have an impact on the
working conditions of pilots and, therefore, the protection of the
environment; (2) many of the functions being transferred to the SLSDC
are related to both safety and economics; (3) the SLSDC does not have
the knowledge to oversee pilotage or negotiate with Canadian officials
regarding pilotage issues; (4) the Coast Guard's recent transfer of
Great Lakes pilotage oversight to the newly-established National
Maritime Center (NMC) reduces red tape, and establishes a civilian
Director without the need for a transfer; (5) the fate of the SLSDC is
in transition because of the DOT's restructuring plans, and this
restructuring will remove the SLSDC and Great Lakes pilotage from
government oversight; (6) there should have been more public input and
more information published regarding the transfer of authority,
including extensive public hearings; (7) the interim final rule
violated the notice and comment requirements of the Administrative
Procedure Act (APA); and (8) Congress intended that pilotage functions
remain in the Coast Guard.
The Department agrees with those commenters who stated that many of
the 11 functions being transferred to the SLSDC relate in part to
safety as well as economics. While the interim final rule stated that
those functions ``are considered to have economic effects,'' the
Department did not mean to imply that only economic functions could be
transferred. The fact that there are safety ramifications involved,
however, should not, and does not, disqualify SLSDC as the agency in
which the authority should reside.
Some commenters opposing the rule pointed to a November 1994 Coast
Guard memorandum approved by the Secretary; attached to the November
1994 memorandum is an options paper, which noted that both safety and
economic functions are vested in the Director of Great Lakes Pilotage,
and that the registration of pilots is a safety function. It also
acknowledged that some economic issues such as travel and work-hour
limits also have safety implications (e.g., their effect on fatigue).
Four options for Departmental oversight of Great Lakes pilotage
functions, each listing pros and cons were provided: (1) Separate
safety and economic oversight; (2) retain in the Coast Guard; (3)
transfer to the Office of the Secretary (OST); and (4) transfer to
SLSDC/MARAD.
Included in this last option was the following statement: ``A
transfer to SLSDC or MARAD may have an adverse impact on safety because
the mission of each agency is economic in nature and primarily
associated with promotion of shipping.'' The memorandum that the
Secretary approved recommended that the responsibility for safety
aspects of Great Lakes pilotage remain with the Coast Guard, but that
economic elements of pilotage oversight be transferred to another
Department office or agency. It also recommended that a Great Lakes
Pilotage Working Group (Working Group) be formed to develop this
option.
The Working Group was formed and included representatives from OST,
the Coast Guard, MARAD, and SLSDC. In developing the option that SLSDC
should assume responsibility for the 11 Great Lakes pilotage functions,
the Final Report of the Working Group was not inconsistent with the
November 1994 memorandum, which had stated that a transfer to SLSDC may
have an adverse impact on safety. The Final Report listed the functions
to be transferred under the heading, ``Economic Functions,'' and it
referred to them as ``essentially economic functions. * * *'' The
Department believes that the 11 functions are essentially, though not
entirely, economic functions. The option in the November 1994
memorandum that contained the ``adverse impact on safety'' statement
envisioned the transfer to SLSDC of not only the 11 ``essentially
economic'' functions, but the following two safety functions as well:
(1) The licensing of pilots and (2) the investigation and prosecution
of marine accidents and incidents.
The Final Report judged these to be essential Coast Guard functions
solely related to safety, and said they should remain with the Coast
Guard. Similarly, the November 1994 memorandum intended that
responsibility for only the safety aspects of Great Lakes pilotage
[[Page 63446]]
remain with the Coast Guard, but not those ``essentially economic''
functions that also have safety ramifications. In fact, the Final
Report stated that the Working Group believed that the transfer of the
11 functions out of the Coast Guard--to any other recipient, including
the SLSDC--would not have a detrimental effect on safety.
Moreover, to the extent the functions involve safety, the
Department has determined there is no problem transferring them to the
SLSDC. As described below, the SLSDC has significant safety
responsibilities, which it has performed successfully for over thirty-
five years. An examination of the SLSDC's operations shows that it has
an impeccable safety record with respect to its authority over one of
the most difficult sections of the entire Great Lakes/Saint Lawrence
Seaway System. Furthermore, in implementing its safety
responsibilities, there is no evidence that the SLSDC has ever
sacrificed safety considerations for economic gain.
The SLSDC operates two locks, a fleet of vessels, maintains
navigational aids, and carries out safety inspections of vessels. In
the St. Lawrence Seaway System, the SLSDC works closely with the Coast
Guard, and performs the same Captain-of-the-Port functions in the
principal operating areas of the Seaway System that the Coast Guard
performs elsewhere. In the Port and Tanker Safety Act of 1978, Congress
expressly reserved that authority to the SLSDC.
In addition, the SLSDC has a comprehensive emergency response plan
designed to protect the environment on the St. Lawrence River and
adjacent areas. The plan directly involves U.S. and Canadian Federal,
state, and local governments, private organizations, and other
interested parties, including pilots. The plan is in place, is tested
yearly, and has been used in actual circumstances twice with complete
success. This year's drill included participation by Federal, state,
and local agencies, in addition to representatives from U.S. and
Canadian pilot organizations.
The SLSDC also has ample, long-standing safety law enforcement
experience. It is responsible for administration of the Seaway
Regulations and Rules (33 CFR Part 401) regarding the clearance,
readiness, and operating requirements for safe passage of vessels
transiting the St. Lawrence Seaway. It operates the Seaway under these
regulations, which are jointly promulgated and enforced with the
Canadian Saint Lawrence Seaway Authority and which contain many vessel
safety rules. In addition, its Captain-of-the-Port responsibility
carries with it enforcement authority, including the ability to fine
for violations, which the SLSDC exercises under subpart B of part 401.
The SLSDC not only has this independent, significant law
enforcement experience, but under an agreement with the Coast Guard,
the SLSDC coordinates the exercise of its authority with related
enforcement activities of the Coast Guard, including those related to
pilotage. Moreover, the SLSDC's personnel carry out many of the Coast
Guard inspection and related functions for the Coast Guard, including
inspections performed by the SLSDC in Canadian waters before vessels
transit the Seaway. In this regard, the SLSDC has the added advantages
of long-standing, joint enforcement with Canada of laws and regulations
relative to the Seaway, including safety laws and regulations, and
ready, cooperative access to Canadian waters for joint as well as U.S.
law enforcement purposes.
Several commenters cited the SLSDC's handling of an incident
involving the M/T CONCORDE as a demonstration of the SLSDC's concern
for economics over safety, alleging that the SLSDC permitted a master
who was drunk to pilot a vessel alone. This refers to an incident in
which it was reported to U.S. and Canadian authorities that the master
of the M/T CONCORDE may have been intoxicated. Upon learning of these
allegations, the St. Lawrence Seaway Pilots Association (SLSPA)
requested permission to assign two pilots to the vessel. In response to
the allegations of intoxication, the M/T CONCORDE was boarded by the
Coast Guard and the master was given a breathalyzer test. The master
not only passed the breathalyzer test, but he showed no signs of misuse
of alcohol. As a result of the U.S. Coast Guard boarding, the Coast
Guard, the SLSDC, and the Canadian Great Lakes Pilotage Authority
cleared the M/T CONCORDE to proceed on its voyage without restriction
with one pilot. Accordingly, the Department finds no basis for the
position of those commenters who described this incident as an example
of the SLSDC favoring economics over safety. Rather, the Department
believes that it is an excellent example of coordination and
cooperation among the Coast Guard, SLSDC, and Canadian authorities
regarding safety issues that affect the entire St. Lawrence Seaway.
Some commenters objected to the interim final rule's
characterization that it was issued in response to ``pilot concerns;''
they argued instead that it was issued in response to outside political
pressure. Some commenters stated that the transfer of authority is
supported by only one Great Lakes Registered pilot, and is opposed by
all three Great Lakes pilot associations.
The Department's examination of a possible transfer of Great Lakes
pilotage authority was the result of a request from a delegation of
interested persons, which included the President of a Great Lakes Pilot
Association (also Vice President of the American Pilots Association for
the Great Lakes), and President of the American Pilots Association.
These organizations expressed concerns on behalf of their members about
the lengthy ratemaking process and the lack of prompt attention given
to pilotage issues. The Department continued its examination and
discovered that similar concerns were expressed by many other
interested parties throughout the Great Lakes. Commenters who believe
the transfer of authority is not supported by any pilots are incorrect.
While two Great Lakes Pilot Associations are opposed to the transfer,
one Great Lakes Pilot Association supports the transfer. Letters of
support for the transfer were also received from individual Great Lakes
Registered Pilots, and from many other interested Great Lakes parties.
The Department did not issue the interim final rule in response to
Congressional pressure. Although the Department has received some
Congressional support for the transfer, it has also received letters
from individual Members of Congress expressing misgivings.
Some commenters contended that the SLSDC lacks the knowledge or
experience to negotiate issues with Canada. The Department disagrees.
The SLSDC has over thirty-five years of experience in direct
negotiations with the government of Canada over the Joint Tariff of
Tolls, Joint Seaway Operating Regulations, and other matters of mutual
concern. Moreover, the SLSDC has daily contact and coordination of
activities and implementation of policies with the Great Lakes Pilotage
Authority, Ltd. and the Canadian Seaway authority. In this respect, the
SLSDC is experienced in, and well suited to, the role of negotiator on
pilotage matters with the Canadian government.
Some commenters stated that out of the 12 or so reviewers of rate
adjustments, the SLSDC is the one agency that consistently opposed rate
adjustments and was responsible for slowing down or halting the
process. The Department, however, has found the opposite to be true.
The Department has checked its records for the last seven years, the
time during which a rulemaking data base has been kept, and, in that
time period, the SLSDC has
[[Page 63447]]
not opposed rate adjustments or been responsible for slowing down or
halting the process.
Some commenters declared that only the Coast Guard has pilotage
expertise such as the experience to determine who is qualified to be a
registered pilot. We are aware, too, that the Inspector General of the
Department has sent a letter to Congressman David Obey, claiming that
the SLSDC has no experience or expertise in many, if not all, of the
responsibilities to be transferred. (The Inspector General also has
raised this concern in the Department's coordination of the interim
final rule.) The pilotage expertise resides in the Coast Guard's Great
Lakes Pilotage Staff (the Staff), which is comprised of the Director of
Great Lakes Pilotage, a Transportation Specialist who serves as the
Assistant Director, and an Economist; the Staff and, thus, the
expertise will transfer in its entirety to the SLSDC when the functions
are transferred. Those who are executing the Great Lakes pilotage
program now, including enforcement of the Act, will continue to do so
after the transfer.
The Staff will continue to operate in the SLSDC in the same manner
in which it has operated in the Coast Guard. In preparation for the
upcoming winter meetings of the three pilot associations, the Director
of Great Lakes Pilotage has written to each of the association
presidents to make them aware of pilotage issues that he would like to
discuss. In each letter, the Director stated that he would like to
reach an agreement on how the process can be improved. ``Identifying
the areas where we need better procedures is beneficial to the system
and the goals of safety. In the spirit of partnership, I hope we can
improve the process together.'' These same goals are transferring to
the SLSDC with the Director.
Moreover, since shortly before its transfer to the NMC in July
1995, the Staff has performed its Great Lakes pilotage responsibilities
without receiving any specialized Coast Guard support to enable the
Staff to perform these responsibilities better. It is not clear,
therefore, why some believe that the expertise will suddenly evaporate
when the Staff is transferred to the SLSDC. Furthermore, the SLSDC
itself has developed an expertise in pilotage issues; it has directed
vessel traffic in the Seaway system for decades and in so doing has
substantial experience in dealing with pilots and pilotage matters. To
the extent the Coast Guard has some special expertise necessary for a
particular matter, the Staff can obtain Coast Guard support regardless
of where the Staff is located.
Some commenters questioned Department statements that the current
Director of Great Lakes Pilotage has ten years of experience in Great
Lakes Pilotage issues. The person who is the current Director became
the Assistant Chief of the Coast Guard's Merchant Vessel Personnel
Division in January 1985. As Assistant Chief, the Coast Guard's
Pilotage Staff reported to him, and he was involved in every major
pilotage policy decision. Since the function was moved from Cleveland
to Washington, DC in 1990, he has been the alternate Director of Great
Lakes Pilotage, that is, the person acting as Director in the latter's
absence. In 1994, he assumed his present duties as Director of Great
Lakes Pilotage. In addition, his career includes over 20 years of
experience as a merchant marine officer, an officer in charge of U.S.
naval vessels, navigation and seamanship instructor at the U.S. Naval
Academy, and head of the Navigation Department at the Maritime
Institute of Technology and Graduate Studies, an advanced school
operated by the International Organization of Masters, Mates and
Pilots. The Assistant Chief of the Pilotage staff also has many years
of experience as a merchant marine officer, has commanded a vessel, and
is a licensed first class pilot on the Great Lakes.
Some commenters asked what the relationship would be between the
Coast Guard and the SLSDC after the transfer of delegation of pilotage
functions. The Department expects the Coast Guard and SLSDC to continue
their current strong relationship of cooperation and coordination.
Concerning pilotage on the Great Lakes, the Coast Guard will continue
to perform the functions of evaluating, testing, grading, issuing and
upgrading pilot licenses, investigating accidents and other
infractions, and suspending or revoking pilot licenses. The SLSDC will
perform all other functions related to Great Lakes registered pilots.
The Coast Guard and SLSDC will enter into a Memorandum of Agreement
(MOA) to ensure coordination and cooperation between the parties.
One commenter argued that giving SLSDC the authority to enter into,
revise, or amend arrangements with Canada with respect to pilotage
rates, which until now has been reserved to the Secretary, may cost
U.S. jobs as a bargaining tool to extract concessions from Canada on
Seaway tolls. The Department disagrees. The transfer of the delegation
of authority does not affect pilotage jobs, pay, or working conditions,
increase hours of service, or impact adversely on safety or the
environment. There is no connection between negotiations with Canada on
Seaway tolls and on pilotage rates. Pilotage rates are now set in
accordance with the published methodology; because rules setting
pilotage rates generally are significant, Department policy requires
that they be coordinated with and cleared through several Department
offices and agencies before negotiations with Canada begin. Those
negotiations were routinely conducted in the past by Coast Guard staff
in Cleveland with no involvement by the Office of the Secretary or any
of the other Department agencies. Under this delegation, the
Secretary's authority to enter into, revise, or amend arrangements with
Canada must be coordinated by SLSDC with the General Counsel of the
Department, in the Office of the Secretary.
That same commenter averred that the May 1972 Great Lakes Pilotage
Review by the Department said that the significant policy leadership
and review function must be retained by the Office of the Secretary.
Policy review and oversight of pilotage is so retained. The Secretary
is transferring one of his responsibilities from one agency that
reports to him (the Coast Guard) to another (the SLSDC). He is not
abrogating his responsibilities. The pilotage functions and personnel
positions created to carry them out are designed to ensure that those
responsibilities will be fully met. The individuals who occupy the
positions must meet the requirements and qualifications demanded of
those positions, irrespective of the agency in which they reside.
The same commenter claimed that it is the layers of review by the
Office of the Secretary (OST), not the size of the Coast Guard or
negotiations with Canada, that have created the less than timely
attention to pilotage issues and less than timely rate adjustments.
Again, the Department disagrees. Coordination by OST allows review
among interested Department elements. This review is necessary in the
Department's decision-making process. The Department's experience shows
that OST review has not caused unreasonable delay. Furthermore, there
are no ``layers of review;'' review by OST and other interested
elements is accomplished in one step and the document is then sent to
the Secretary for approval.
On the other hand, there can be multiple layers of review in
Department agencies before a document is submitted to OST for
coordination. Although approvals can take varying amounts of
[[Page 63448]]
time, the Department has no doubt that the SLSDC, with a short review
process, will be able to give more timely attention to pilotage issues
and make more timely rate adjustments than would the Coast Guard,
including the NMC. In addition, a transfer to the SLSDC would guarantee
that there would always be a civilian Director of Great Lakes Pilotage.
Some commenters believe that the transfer should not take place
during the busiest part of the shipping season, i.e., November and
December. These commenters indicated that a transfer at this time will
disrupt pilotage operations. They cited the Final Report, which says
that a target date for the transfer of March 31 is believed to be
necessary to minimize disruption to the operation of the pilotage
pools. If the Working Group believed that there would have been
disruption had the transfer taken place in April, the commenters
argued, how could there not be disruption to the operation of the
pilotage pools during the height of the shipping season?
The Department expects no disruption to pilotage operations,
notwithstanding the position of the Working Group. The transfer does
not in any way represent a shift in pilotage policies or operations. It
only affects the internal delegation of responsibilities within the
Department. There should be no negative effect on pilotage service.
This rule will not change the pilotage rules and the manner in which
they are administered, make the pilots employees of the SLSDC, or
change the status or organizational structure under which the pilots
now function. As it is with the Coast Guard, pilotage safety will
remain the paramount concern of the SLSDC and will not become secondary
to economic considerations. Since the Great Lakes Pilotage Staff is
transferring with the functions, the only expected change is that the
phone numbers for the Great Lakes Pilotage Staff will change. The new
phone numbers will be widely distributed, and will not cause a
disruption to pilotage operations.
The DOT restructuring, if it occurs, will not remove Great Lakes
pilotage from Federal government oversight. The Administrator will
always exercise authority over Great Lakes pilotage under a delegation
from the Secretary of Transportation and his successors. The transfer
would not compromise the Secretary's ability to intervene in pilotage
issues should that become necessary. Even if the SLSDC were to become
separate from the Department, the legislation proposed by the
Administration to accomplish this would provide for continued
delegation of Secretarial authority to the SLSDC. The SLSDC would also
remain a wholly-owned Federal government agency. The proposed
legislation, in pertinent part, reads as follows:
(b) Section 1 of the Act of May 13, 1954, Public Law 358 (33
U.S.C. 981), as amended, is amended to read as follows:
``(a) There is hereby created a body corporate to be known as
the Saint Lawrence Seaway Development Corporation (hereinafter
referred to as the 'Corporation').
``(b) The Secretary of Transportation may delegate his or her
authority to the Administrator as the Secretary deems appropriate or
as directed by law.''
Thus the Secretary's ability to intervene would continue. If the
legislation is enacted, the manner in which the Secretary's oversight
of Great Lakes pilotage would be carried out would be set forth in a
document to be published in the Federal Register.
In a ``voice mail'' communication from counsel for the SLSPA to an
OST staff attorney, an additional argument against the transfer was
posed. A memorandum concerning this communication has been entered into
the docket. SLSPA's counsel points out that the Great Lakes Pilotage
Act is set forth in section 46 of the United States Code (U.S.C.),
which contains the following definition at 46 U.S.C. 2101:
(34) ``Secretary'', except in part H, means the head of the
department in which the Coast Guard is operating.
Since Great Lakes Pilotage is contained in Part F, this definition
of ``Secretary'' pertains to it. The SLSPA maintains that whatever
Congress intended to reside within the Coast Guard is contained within
Title 46 under this definition and that, therefore, this transfer to
the SLSDC would be in contravention of Congressional intent.
Three Members of Congress submitted to the Secretary the House
Report for the legislation that defines ``Secretary.'' The report
states: `` `Section 2101(34) defines `Secretary' so that maritime
safety and seamen's welfare jurisdiction remains within the Coast Guard
at all times.'' They also refer to 46 U.S.C. 2104(a), which states that
``[t]he Secretary may delegate the duties and powers conferred by this
subtitle [which includes Great Lakes pilotage] to any officer,
employer, or member of the Coast Guard * * *.'' The Congressmen
conclude that the House Report and the statutory section concerning
delegation ``appear to confirm Congress's determination that [Great
Lakes pilotage functions] reside with the Coast Guard.''
The definition of ``Secretary,'' which is clear on its face, does
not change with the transfer of pilotage authority to the SLSDC. The
Secretary of Transportation is still the head of the Department in
which the Coast Guard is operating. Upon declaration of war or when the
President directs, the Coast Guard would operate in the Navy (14 U.S.C.
3). In that event, the Secretary of Defense would be the head of the
Department in which the Coast Guard is operating. (N.B.: even during
the Vietnam War and the Persian Gulf War, the Coast Guard remained part
of the Department of Transportation.) The House Report explanation is
not the statutory definition. Even if it were the statutory definition,
it says that maritime safety is to remain in the Coast Guard at all
times. While many of the 11 functions to be transferred have safety
ramifications, they are still essentially economic. The House Report
language did not address where functions should reside that fall
outside the parameters of maritime safety and seamen's welfare
jurisdiction.
That Congress did not intend that all statutory authority that
comes under the above-cited definition of Secretary reside in the Coast
Guard is demonstrated by the Port and Tanker Safety Act of 1978. That
Act contains the following definition at 33 U.S.C. 1222:
(2) ``Secretary'' means the Secretary of the department in which
the Coast Guard is operating.
Nevertheless, that Act also states that certain authority granted
to the Secretary shall not be delegated to any agency other than the
Saint Lawrence Seaway Development Corporation (33 USC 1229). Thus,
Congress envisioned a situation in which authority residing within the
``Department in which the Coast Guard is operating'' not only could be
delegated to an agency within the Department of Transportation that was
not the Coast Guard, but must not be delegated to the Coast Guard.
Moreover, by this language, Congress has also demonstrated that, when
it intends for authority to remain within one agency and not be
delegated elsewhere, it will so state.
Furthermore, had Congress desired that the Great Lakes pilotage
function remain solely within the Coast Guard, it could have given the
authority directly to the Commandant instead of the Secretary. By
contrast, in other circumstances, Congress has given authority, not
first to the Secretary to be delegated, but directly to the Federal
Aviation Administrator and to the Federal Highway Administrator. For
example, the Intermodal Surface Transportation Efficiency Act of 1991
[[Page 63449]]
(section 6016) directs the Federal Highway Administrator to conduct
certain studies, while legislation concerning nationality and ownership
of aircraft as well as safety regulation of civil aeronautics gives
authority to the Federal Aviation Administrator (49 U.S.C. 44101 et
seq.; 49 U.S.C. 44701 through 44717, 44720 through 44722). (N.B.:
Within the safety regulation chapter, three sections, 49 U.S.C. 44718,
44719, and 44723, set forth requirements for the Secretary.)
Moreover, the Department of Transportation Act (Public Law 89-670,
1966) (DOT Act), which created the Department, specifically authorized
the Federal Railroad Administrator and the Federal Highway
Administrator to carry out certain functions, powers, and duties of the
Secretary (section 6(f) (3)(A) and (3)(B)). Unlike 46 U.S.C. 2104(a),
which states that the Secretary ``may'' delegate duties and powers to
any officer, employee, or member of the Coast Guard, the DOT Act stated
that the Federal Railroad and Highway Administrators ``shall'' carry
out the functions, duties, and powers of the Secretary. In addition,
the DOT Act did not authorize the Commandant of the Coast Guard to
carry out the functions, powers, and duties of the Secretary regarding
Great Lakes pilotage. On the contrary, the DOT Act, which transferred
the Coast Guard to the Department, also transferred to, and vested in
the Secretary, the functions, powers, and duties relating to the Coast
Guard (section 6(b)(1)).
In a formal comment to the docket, the SLSPA also argued that the
interim final rule violated the notice and comment requirements of the
APA. It asserted that the statutory exemption from the notice and
comment requirements does not extend to ``any action which goes beyond
formality and substantially affects the rights of those over whom the
agency exercises authority.'' [citation omitted.] The SLSPA concluded
that since this rule affects timeliness and, therefore, substantially
affects the rights of pilots, the exemption does not apply. It pointed
to the timely adjustments to pilotage rates as demonstrating the effect
of the rule on the rights of pilots. It contended that the Department
failed to provide a concise general statement of its basis and purpose,
as required by the APA, and that no explanation was offered for
overturning a regulation that ``has been in place since DOT was
established in 1967.''
The Department disagrees. If the Department were to accept SLSPA's
argument that, since the rule affects timeliness and, therefore,
substantially affects the rights of pilots, all delegations of
authority would have to be published for notice and comment. One of the
paramount reasons for delegations is to reduce delays by eliminating
needless work at the top levels. All delegations, therefore, can affect
timeliness. Moreover, requesting public comment on delegations of
authority is not required by the APA. 5 U.S.C. 553(b)(3)(A) states that
the notice and comment requirements of the APA do not apply to rules of
agency organization, procedure, or practice.
The Department, therefore, disagrees with SLSPA's contention that
notice and comment are required for this delegation. In its discretion,
however, the Department did offer a 60-day comment period; it even
suspended the effectiveness of the interim final rule to allow the
Department additional time to consider all the issues raised in the
comments.
The Department disagrees with the SLSPA's APA argument that the
Department did not provide a concise general statement of its basis and
purpose and did not offer an explanation for overturning a regulation
that had been in place since the Department was established. Putting
aside the question of whether a concise general statement is even
required, the Department provided one. The interim final rule stated
that the transfer of responsibilities from the Coast Guard to the SLSDC
``will place pilotage under permanent civilian authority, and placing
pilotage in a smaller organization with an established presence on the
Great Lakes will give pilotage issues greater visibility and more
timely attention. In addition, SLSDC is being given authority to
negotiate directly with Canada, which will allow timely adjustments to
pilotage rates.'' This statement contains the Department's basis and
purpose for the change. A small SLSDC, when compared with the Coast
Guard in general or even the NMC within the Coast Guard, will be able
to give more timely attention to pilotage issues and make more timely
rate adjustments.
Many commenters opposed to the transfer claimed that they were
given no opportunity to have input into the process and therefore the
interim final rule is invalid. The Department disagrees. As we have
demonstrated earlier, a comment period is not required by the APA.
Nevertheless, because of public and Congressional interest in Great
Lakes pilotage, the Department took the extraordinary step of providing
an opportunity for public comment on this rule and provided 60 days for
the receipt of public comment. In accordance with its published
procedures, the Department even accepted comments after the 60 days had
elapsed. The Department, thus, has provided ample opportunity for
public input and has thoroughly considered that input before issuing
this rule.
Several commenters, however, requested that the Department hold a
public hearing. Even with respect to rulemakings for which notice and
comment are required, which this rulemaking is not, the APA gives the
agency discretion to hold a public hearing or not. ``[T]he agency shall
give interested persons an opportunity to participate in the rulemaking
. . . with or without the opportunity for oral presentation.'' (5
U.S.C. 553(c).). By allowing interested persons to submit written
views, the Department has provided the public with a greater
opportunity to participate in a rule of agency organization, procedure,
or practice than the APA requires. Moreover, in addition to providing
the 60-day comment period, representatives from the Great Lakes
Pilotage Staff and the SLSDC participated in a February 9, 1995,
meeting in Chicago, organized by the Great Lakes Shipping Association,
which represents vessel owners engaged in the international Great Lakes
trades. Also in attendance were representatives from the three Great
Lakes pilot associations and a large number of other industry
representatives. At that meeting, the Staff and SLSDC representatives
responded to questions from pilots and others for several hours
concerning the possibility of a transfer.
In addition, during the winter of 1994-95, the Staff also met with
the three pilot associations and presented to each of them a draft of
the ``St. Lawrence Seaway Development Corporation Pilotage Concept,''
which included the SLSDC's 1995 plan. The plan comprised the SLSDC's 5-
year performance goals, its 3-to-5-year business focus, and its 5-to-
15-year strategic goals. The document emphasized the importance of the
pilotage program and the SLSDC's role in the program, when it said,
``[t]he mission of the Great Lakes Pilotage Program is to protect the
public, the environment, and the economic interests of foreign trade
shippers by assuring that their vessels are safely navigated by
competent and qualified U.S. registered pilots.'' Although the Staff
orally requested that the associations provide reaction to this
document, none was forthcoming.
In light of the many opportunities that the pilots have had to
voice their opinions about the transfer and the exhaustive public
record before the
[[Page 63450]]
Department, the Department concludes that holding a public hearing
would not result in the presentation of additional or different
information from what has already been submitted.
The Department stated in the interim final rule that it would
consider any new matters presented and make changes if warranted. The
Department has carefully considered all comments presented and
concludes that no revisions to the interim final rule are warranted.
Accordingly, the Department affirms, without change, the interim final
rule.
A final rule redesignating those portions of the Coast Guard's
Great Lakes Pilotage Regulations that are necessary for SLSDC to carry
out its responsibilities under the Act will be published in the Federal
Register shortly.
List of Subjects in 49 CFR Part 1
Authority delegations (Government agencies), Organizations and
functions (Government agencies).
Accordingly, 49 CFR part 1 is amended as follows:
PART 1--[AMENDED]
1. The authority citation for part 1 continues to read as follows:
Authority: 49 U.S.C. 322; Pub. L. 101-552, 28 U.S.C. 2672, 31
U.S.C. 3711(a)(2).
Sec. 1.46 [Removed]
2. Section 1.46(a) is removed and reserved.
3. Section 1.52 is amended by adding a new paragraphs (d) and (e)
to read as follows:
Sec. 1.52 Delegations to Saint Lawrence Seaway Development Corporation
Administrator.
* * * * *
(d) Carry out the Great Lakes Pilotage Act of 1960, as amended, (46
U.S.C. 9301 et seq.).
(e) Under the 1977 Memorandum of Arrangements with Canada and the
Great Lakes Pilotage Act of 1960, as amended in 1983 (46 U.S.C. 9305),
enter into, revise, or amend arrangements with Canada in coordination
with the General Counsel.
Issued at Washington, DC, this 5th day of December 1995.
Federico Pena,
Secretary of Transportation.
[FR Doc. 95-30081 Filed 12-8-95; 8:45 am]
BILLING CODE 4910-62-P
