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

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Information about this document as published in the Federal Register.

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Coast Guard, DHS.


Temporary final rule; change of effective period.


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.


Effective July 18, 2003, § 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 § 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.


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

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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.

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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 Start Printed Page 43471reasons 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].


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 Start Printed Page 43472likely 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.


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.

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List of Subjects in 46 CFR Part 401

  • Administrative practice and procedure; Great Lakes; Navigation (water); Penalties; Reporting and recordkeeping requirements; Seamen
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For reasons discussed in the preamble, the Coast Guard amends 46 CFR part 401 as follows:

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

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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.

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2. In § 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.

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Dated: July 18, 2003.

T.H. Gilmour,

Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, Security and Environmental Protection.

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[FR Doc. 03-18759 Filed 7-18-03; 4:27 pm]