96-9462. Procedures for Changing Rules of Measurement or Rates of Tolls Technical Amendment

[Federal Register Volume 61, Number 75 (Wednesday, April 17, 1996)]
[Rules and Regulations]
[Pages 16718-16719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9462]



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PANAMA CANAL COMMISSION

35 CFR Part 70

RIN 3207-AA37


Procedures for Changing Rules of Measurement or Rates of Tolls 
Technical Amendment

AGENCY: Panama Canal Commission.

ACTION: Final rule.

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SUMMARY: The Panama Canal Commission hereby amends its procedures for 
changing the rules of measurement and rates of tolls for use of the 
Panama Canal. The amendment simply removes the President from any 
formal participation in these procedures. This revision is mandated by 
a recent Congressional enactment which transferred the President's 
authority to approve such changes to the Commission. Those portions of 
the rule providing for notice and public hearing remain the same. Thus, 
the procedural rights of the users of the Panama Canal are unaffected 
by this amendment.

EFFECTIVE DATE: April 17, 1996.

FOR FURTHER INFORMATION CONTACT: John A. Mills, Secretary, Panama Canal 
Commission, 1825 I Street NW, Suite 1050, Washington, DC 20006-5402; 
Telephone: [phone]; Facsimile: [phone]; or John L. 
Haines, Jr., General Counsel, Panama Canal Commission, Unit 2300, APO 
AA 34011-2300; Telephone: [phone]; Facsimile: 011-507-272-
3748.

SUPPLEMENTARY INFORMATION: The Panama Canal Commission hereby amends 35 
CFR Part 70 in accordance with the statutory language contained in 
Subtitle B of Title XXXV of the National Defense Authorization Act for 
Fiscal Year 1996, Public Law 104-106, which was signed into law on 
February 10, 1996. Sections 3527 and 3528 of that law amended sections 
1601 and 1604 of the Panama Canal Act of 1979, 22 U.S.C. 3791 and 3794, 
by transferring final authority for effecting changes in the 
measurement rules and toll rates for use of the Canal from the 
President to the Canal Commission. This final rule merely implements 
this statutory mandate by deleting current sections 70.14 and 70.15 
which set forth the President's now-terminated role in the toll-setting 
and measurement-rule procedure and amending section 70.16 to reflect 
Congress' placement of final authority for such changes with the 
Commission.
    The Commission is proceeding with the issuance of a final rule 
instead of a proposed rule with a request for comments because the rule 
merely

[[Page 16719]]

eliminates from the regulations formal Presidential participation; as 
noted, such participation has been eliminated already from the statute 
by Congress. A request for public comment would suggest that the 
Commission has some degree of discretion in this matter. Inasmuch as 
the agency has no choice but to implement the terms of the statute, 
such an invitation for comments would be misleading. These 
circumstances bring the agency squarely within the exception to general 
rulemaking requirements established in 5 U.S.C. 553(b)(B). This section 
provides that such rulemaking requirements do not apply when the agency 
for good cause finds that notice and public procedure thereon are 
unnecessary or contrary to the public interest. Rulemaking which serves 
to carry out a Congressional mandate has been described as a non-
discretionary ministerial action constituting good cause within the 
meaning of 5 U.S.C. 553(b)(B). In one case, the appellate court held 
that resorting to the proposed rulemaking procedures in a situation 
substantially identical to this one was ``unnecessary * * * and might 
even have been `contrary to the public interest.' '' Metzenbaum v. 
Federal Energy Regulatory Commission, 675 F.2d 1282, 1291 (D.C. Cir. 
1982).
    Significantly, the Commission must still comply with the procedures 
of section 1604 of the Panama Canal Act, 22 U.S.C. 3794, which requires 
publication in the Federal Register of notice of any proposed change in 
the rates of tolls or rules of measurement; the making available to the 
public an analysis showing the basis and justification for the change; 
the provision of an opportunity for interested parties to participate 
in the toll-setting or measurement-change process through the 
submission of written comments and appearance at a public hearing; and 
publication of the final rule not less than 30 days before the 
effective date of the change. In summary, the public will continue to 
have the same rights to participate in proposed toll-rate or 
measurement-rule changes as it has had in the past. The sole difference 
is that, after such participation, the Commission, rather than the 
President, will have the final approval authority.
    The Commission has been exempted from Executive Order 12866 and, 
accordingly, the provisions of that directive do not apply to this 
final rule. Even if the Order were applicable, the change would not 
constitute a ``rule'' as that term is defined in the Regulatory 
Flexibility Act [5 U.S.C. 601(2)] because: (1) it concerns ``rates'' 
and ``practices relating'' thereto; and (2) as noted above, is not a 
rule for which the agency must publish a general notice of proposed 
rulemaking pursuant to 5 U.S.C. 553(b). Additionally, its 
implementation would not have a significant economic impact on a 
substantial number of small entities as defined under that Act.
    Further, the agency has determined that implementation of the rule 
will have no adverse effect on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
enterprises to compete with foreign-based enterprises in domestic or 
export markets.
    Because a notice of proposed rulemaking and opportunity for public 
comment are not required to be given for this final rule by the 
Administrative Procedure Act (5 U.S.C. 553) or by any other law, under 
sections 603(a) and 604(a) of the Regulatory Flexibility Act (5 U.S.C. 
601), no initial or final regulatory flexibility analysis has to be or 
will be prepared.
    Finally, the Administrator of the Panama Canal Commission certifies 
that these changes in regulations meet the applicable standards 
provided in sections 3(a) and 3(b)(2) of Executive Order No. 12988.

List of Subjects in 35 CFR Part 70

    Measurement, Navigation, Panama Canal, Vessels.

    Accordingly, 35 CFR Part 70 is amended as follows:

PART 70--PROCEDURES FOR CHANGING RULES OF MEASUREMENT OR RATES OF 
TOLLS

    1. The authority citation for part 70 is revised to read as 
follows:

    Authority: Sections 1601-1604 and 1801, Pub. L. 96-70, 93 Stat. 
489-492, 22 U.S.C. 3791-3794, 3811; sections 3527 and 3528, Pub. L. 
104-106; EO 12215, 45 FR 36043, 3 CFR, 1981 Comp., p. 257.


Secs. 70.14 and 70.15  [Removed]

    2. Sections 70.14 and 70.15 are removed.


Sec. 70.16  [Redesignated as Sec. 70.14]

    3. Section 70.16 is redesignated as Sec. 70.14 and amended by 
removing the word ``President'' and inserting, in its place, the word 
``Commission.''

    Dated: April 1, 1996.
Gilberto Guardia F.,
Administrator, Panama Canal Commission.
[FR Doc. 96-9462 Filed 4-16-96; 8:45 am]
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