02-18345. 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.

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 [phone]. 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 81/2 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 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 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 § 401.407, suspend paragraph (b) and temporarily add paragraph (c) to read as follows:

§ 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):

Any point on or in:	Southeast Shoal	Toledo or any point on Lake Erie west of Southeast Shoal	Detroit river	Detroit pilot boat	St. Clair river
Toledo or any port on Lake Erie west of Southeast Shoal	$988	$583	$1,282	$988	N/A
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 Detroit River	988	1,282	583	N/A	1,293
Detroit Pilot Boat	715	988	N/A	N/A	1,293
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.